SZLVN v Minister for Immigration
[2008] FMCA 664
•26 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 664 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for a Protection (Class XA) visa – whether failure to take into consideration the ‘promptness’ of the applicant in applying for a protection visa on his arrival in Australia – merits review and weight not functions of judicial review – credibility. |
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| Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC Abebe v The Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZLVN |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3985 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 1 April 2008 |
| Date of Last Submission: | 1 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J. Knackstredt |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 24 December 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,000 payable within four (4) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3985 of 2007
| SZLVN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
1.This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 December 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
2.The applicant was born on 29 December 1966. He claims to be a national of China.
3.The applicant arrived in Australia on 22 April 2007 on a Chinese passport issued in his own name.
4.The applicant lodged an application for a protection visa on 22 May 2007 on the basis that he was persecuted in China due to his practice of Falun Gong (Court Book (CB) 12).
5.On 9 August 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 27) (see Legislative framework).
6.On 10 September 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 36).
Legislative framework
7.Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
8.Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
9.Australia has protection obligations to a refugee on Australian territory.
10.Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
11.Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
12.On 24 September 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 26 October 2007 to give oral evidence and present arguments (CB 42). The applicant attended the Tribunal hearing on that day.
The Tribunal’s findings and reasons (CB 63-78)
13.The Tribunal summarised the claims made by the applicant in the protection visa application (CB 65-66). It also summarised the applicant's claims and evidence given at the Tribunal hearing (CB 66-71); independent country information to which it had had regard (CB 71-74); and noted that it had been provided with additional material by the applicant (CB 45-52).
14.The Tribunal found that the applicant’s responses to questions were “vague, lacked in details and were internally inconsistent and inconsistent with his written claims” (CB 74). It was not satisfied as to the applicant’s credibility on the basis of the cumulative effect of a number of identified problems with his evidence (see CB 74-77).
15.In summary, the Tribunal was not satisfied that the applicant commenced to practise Falun Gong in 1998; nor that the applicant was involved in any Falun Gong activities in China; nor that he was arrested on 31 May 2003 and detained for two and a half months; nor that in 2005 and 2006, his employer was warned that the applicant could not travel overseas; nor that the applicant believed that he would be in ‘big trouble’ if he were to return to China. The Tribunal was not satisfied that the applicant had suffered or would suffer any of the claimed harm (CB 77-78).
16.The Tribunal disregarded the applicant’s activities in Australia in accordance with section 91R(3) of the Act. It concluded that:
In essence the Tribunal is satisfied that if the applicant were to return to China he would not practise Falun Gong, not out of fear but out of a lack of genuine interest in the practice (CB 78).
17.For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from his stated or perceived practice of Falun Gong. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to China for reasons of being a Falun Gong practitioner, a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
18.The applicant filed the application in this Court on 24 December 2007 setting out 1 ground of review of the Tribunal’s decision.
19.The applicant appeared in person before this Court on 1 April 2008 with the assistance of a Mandarin interpreter. Mr Knackstredt of counsel appeared for the first respondent.
20.The ground of application was translated for the applicant prior to his being invited to say anything he wished to in regard to this ground and generally.
Ground 1 of the application
21.The sole ground of application states:
(1)I think the Refugee Review Tribunal, in the course of finding that “In essence the Tribunal is satisfied that if the applicant were to return to China he would not practise Falun Gong, not out of fear but out of lack of genuine interest in the practice [Paragraph 3, Page 17 of RRT decision]”, made no reference in its decision to the promptness with which I applied for a protection visa following my arrival in Australia. I think, in the circumstances, the Refugee Review Tribunal failed to take into account a consideration or evidence which was required to take into account, giving rise to jurisdictional error.
22.The applicant arrived in Australia on 22 April 2007 and lodged his protection visa application one month later on 22 May 2007 (the one month period). The applicant argues, in effect, that lodging an application after one month of arriving in Australia was prompt and should have been taken into account by the Tribunal as a relevant consideration in its determination.
23.The applicant made no reference to the one month period in his statement that accompanied the protection visa application (CB 24-25), nor is there any indication from the record of the delegate's decision that the applicant sought to raise that period as an issue or as a relevant consideration (CB 29-35).
24.The applicant has not provided the Court with a transcript of the Tribunal hearing. However the Tribunal's summary of the applicant's evidence at the hearing (CB 66-71) makes no reference to the applicant raising the one month period as an issue or a relevant consideration for the Tribunal to take into account.
25.In its Statement of Decision and Reasons, the Tribunal identified, at the outset, under the heading: Application for Review, the pertinent dates of the applicant’s arrival in Australia and his application for a protection visa (CB 63). However, it made no specific reference to the one month period in its Findings and Reasons.
26.It is difficult to see how a one-month delay between the applicant's arrival in Australia and his lodgment of an application for a protection visa could, on any reasonable construction, be characterized as being particularly prompt, let alone constitute such an exceptional level of promptness that would require the Tribunal to treat it as a separate relevant consideration in this case. Certainly, of far greater relevance would be a situation where an application for refugee status was either extremely timely or involved extended delay. Otherwise, I accept that it would be open to a Tribunal to accord this matter what weight it determined.
27.What weight a Tribunal accords any particular piece of evidence before it, including the promptness or otherwise of the lodgment of a protection visa application, is ultimately a factual matter for it. As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
28.The Tribunal in the present case made clear findings on what it identified were the determinative issues concerning its doubts about, and the lack of details and inconsistencies in, the applicant’s evidence from which it made an adverse finding as to the applicant’s credibility concerning his alleged Falun Gong activities. The one month period, taken in the context of this assessment of the applicant’s credibility, was obviously not found by the Tribunal to be sufficiently relevant nor material to merit mention. I consider that it was open to the Tribunal to so find and to accord the matter what weight it considered it deserved.
29.The Tribunal’s findings in this regard as to the applicant’s credibility are findings of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
30.Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant's responses. The Tribunal then made findings based on all the evidence and material before it.
31.I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and sufficient reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
32.Accordingly, Ground 1 of the application is rejected.
Conclusion
33.The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
34.The application before this Court is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 26 May 2008
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