SZLZV v Minister for Immigration
[2008] FMCA 1254
•5 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1254 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLZV”. |
| Migration Act 1958 (Cth), ss.91R(3)91X, 424A, 427 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 330 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437 SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 |
| Applicant: | SZLZV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 429 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms N. Johnson (solicitor) |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application filed on 22 February 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 429 of 2008
| SZLZV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a married man born in 1967 from Hei Long Jiang, the People’s Republic of China. He claims that he was persecuted in China because of his practise of Falun Gong. In 1997, the applicant was introduced to Falun Gong by a friend because he suffered from back and leg pains. He grasped the five sets, studied the texts and gained benefit through the practise.
When the Chinese government suppressed Falun Gong in 1999, the applicant stopped practising in public. He and other practitioners started practising in one of their homes instead. In 2000, they staged a protest outside the Suihua Government building against the persecution of Falun Gong. The police arrested and detained the applicant and his friends, who were interrogated, beaten and sleep deprived. Finally after 30 days, the applicant signed a forced letter of repent and was released conditionally with a 6,000 yuan fine. The applicant claims his business was ruined and he was unable to find work until 2004.
The applicant finally obtained a passport in 2007 and paid money for a visa. He arrived in Australia on 4 July 2007 and claims he has been active in Falun Gong activities and continues protest against its persecution in China.
The applicant applied to the Department of Immigration for a Protection (Class XA) visa on 8 August 2007. A delegate of the Minister refused to grant the visa on 2 October 2007 and the applicant was notified of this on 3 October 2007. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 22 October 2007 for review of the delegate’s decision. On 15 January 2008, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. On 22 February 2008, the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision (reference number 071807295).
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date directions hearing, the applicant declined the opportunity to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal.
The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 15 May 2008. An order was also made that the applicant was to file and serve a short outline of submissions and list of authorities fourteen days prior to the hearing. The applicant did not comply with either order.
Tribunal decision
On 22 October 2007 the applicant lodged an application with the Tribunal for a review of the delegate’s decision (CB 44-47). By letter dated 6 November 2007 the Tribunal invited the applicant to attend a hearing on 6 December 2007 to give oral evidence and present arguments in support of his case (CB 50-51). The applicant accepted the invitation and attended the hearing on that date (CB 63-64). The Tribunal decision of 17 January 2007 was handed down on 5 February 2008 (reference number 071807295) and is the decision the subject of this judicial review.
The Tribunal was not satisfied that the applicant was a Falun Gong practitioner. It found that he was not a credible witness and that he had fabricated his claims on the following bases:
a)The applicant had some knowledge about Falun Gong but concluded that he had “memorised bits of information and did not connect the information with the actual practice of Falun Gong and at times became confused with the facts he had memorised” (CB 86.5).
b)The applicant’s evidence at the hearing was inconsistent with claims made in his protection visa application. The Tribunal concluded that these inconsistencies reinforced its adverse credibility finding and found that he had concocted his claims of persecution (CB 86.8-87.8). It relied on independent country information to find that if the applicant was of adverse interest to the Chinese authorities, he would not have been issued with a passport in his own name (CB 88.5).
c)The applicant’s conduct in Australia included his practice of Falun Gong at Campsie and his attendance at a protest on 1 December 2007. Due to the applicant’s vague evidence on his practice of Falun Gong in Australia, the Tribunal was not satisfied with his involvement in the Falun Gong movement in Australia. The Tribunal concluded that his participation in the protest was for the purpose of strengthening his claim and disregarded it pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Act”).
Consideration
Ground one
1. This involved an error of law that:
(a) The decision involved an important exercise of the power conferred Migration Act Regulations.
(b) The respondent did not carefully consider the information which is in favour of the applicants.
(c) There was no evidence or the other materials to justify the making of the decision.
This ground of review is not particularised or supported by any submissions to clarify what the applicant is alleging. The Tribunal noted the applicant’s evidence given at the hearing and the inconsistencies between the claims from his visa application and his evidence at the hearing. Attached to the protection visa application are typed answers for questions 41, 42, 43, 44 and 45 (CB 26-27). There is also a two page statement prepared on the letterhead of Langue Translation Service which again sets out his claims in broad terms (CB 29-30). Nothing further was attached to his review application before the Tribunal. The Tribunal decision sets out the information attached to the protection visa application and summarises the evidence given during the hearing. It effectively sets out the discussion of each aspect of the applicant’s claims and the concerns that the Tribunal member had with them. The Tribunal systematically raised with the applicant the inconsistencies between his responses and the information he gave in his original protection visa application.
I agree with the submission made by Ms Johnson that this ground of review essentially amounts to an expression of the applicant’s emphatic disagreement with the factual conclusion of the Tribunal. An applicant’s displeasure with the conclusion of a Tribunal is not indicative of jurisdictional error: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272].
Ground two
(a) I am citizen of China. If I back to my country, I will be risk of suffering persecution; within the meaning of the 1951 Convention relating to the status of Refugees and the 1966 protest relating to the status of refugees.
Ground two is nothing more than a bare statement that is not particularised or supported by any submission that establishes a ground of review or alleged jurisdictional error. The applicant’s claim is that he is a Falun Gong practitioner which was banned by the Chinese government and that many Falun Gong practitioners have been detained and imprisoned. His claim is that if he should return to China, he would be persecuted by being detained and imprisoned. The Tribunal was not satisfied that the applicant had been involved in the Falun Gong movement in either China or Australia. In those circumstances, the Tribunal was not satisfied that the applicant faces a real chance of suffering serious harm in the reasonably foreseeable future for a Convention reason should he return to China. This ground does not identify any error in that reasoning and is not an appropriate ground of review.
Ground three
(b) Member of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided.
While the applicant claims that the Tribunal failed to correctly understand his claims and consider relevant matters, he has not provided any particulars to explain this. This allegation is contrary to the content of the Tribunal decision which recorded each aspect of the applicant’s evidence contained in the visa application and given orally at the Tribunal hearing. The applicant does not complain that the evidence was inaccurately recorded or that the Tribunal overlooked substantial parts of that material. This ground also appears to essentially be the applicant’s disagreement with the factual conclusions of the Tribunal.
Ground four
(c) The Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth). Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in our protection, which information was not provided to the applicants in accordance with s.424A.
This ground is un-particularised and there are no submissions made by the applicant to identify the information he claims should have been provided to him under s.424A of the Act. The Tribunal was not satisfied with the applicant’s evidence at the hearing particularly his lack of knowledge of Falun Gong and inconsistencies in his evidence. In those circumstances there is no requirement on the Tribunal to provide the applicant with a s.424A letter as the Tribunal had reached its conclusion by subjective appraisal. This approach is supported by the decision in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18] where the majority of the High Court approved the statement by Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 that the word “information”:
…does not encompass the Tribunal’s subjective appraisal, thought processes or determinations…nor does it extend to identifying gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps.
As the Tribunal’s findings arose from evidence that the applicant gave at the Tribunal hearing and to the delegate, the exceptions in s.424A(3)(b) and s.424A(3)(a) of the Act exclude the obligation under s.424A(1). The applicant has made no reference to independent country information, however, the Tribunal decision referred to independent information from various sources (CB 82-83). If the applicant is saying that this country information should have been provided to him under s.424A(1) of the Act, this is also exempt by the operation of s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 330 at [44]-[46] per Nicholson, Jacobson and Bennett JJ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30] per Dowsett, Hely and Lander JJ.
While the applicant claims that the Tribunal failed to correctly understand his claims and failed to consider the relevant matters he has not provided any particulars to explain this nor developed any argument to support the allegation that the Tribunal did not correctly understand his claims or failed to consider the relevant matters. This allegation is contrary to the content of the Tribunal’s decision which invested considerable effort in recording each aspect of the applicant’s evidence contained in his Protection visa application and that given orally at the Tribunal hearing. There is no complaint that this has been recorded inaccurately or has overlooked substantial parts of that material. This ground also appears to essentially amount to an inspection of the applicant’s disagreement with the factual conclusion of the Tribunal.
Ground five
(d) The respondent refused to grant my protection visa without proper grounds and proper investigation.
In respect to the assertion that the Tribunal had no evidence on which to base its decision the Tribunal in the decision record clearly sets out the material that it had available and the sources from which it was obtained. The applicant provided limited material to the Tribunal in his original Protection visa application. This was further supplemented by statements that he made to the delegate of the Minister and subsequently to the Tribunal member. Added to this is the independent country information which the Tribunal member sourced. Although the volume of this material is not large the Tribunal member indicates that the changes and the inconsistencies of the claims made by the applicant at the various stages between the visa application and the Tribunal hearing led to the following finding.
These inconsistencies and changing claims reinforce the Tribunal’s conclusion that the applicant is not a credible witness, and that he has concocted the claims concerning his experiences in China, including that: he was detained in September 2000; had to report to the authorities regularly; and he lost employment because he was a Falun Gong practitioner. The Tribunal does not accept that the authorities showed any interest in his employment or harassed him such that he lost his employment. The Tribunal finds that he has concocted this claim that he was interrogated, injured, particularly in protests, fined or subjected to surveillance. (CB 87)
Contrary to the claim that there was insufficient or no evidence for the Tribunal to make its decision, the Tribunal clearly sets out that the inconsistencies that arose in the material supplied by the applicant himself led it to the conclusion that his claims were concocted.
In respect to the allegation that the Tribunal failed to investigate the applicant’s claims is contrary to the discretion given to the Tribunal pursuant to s.427 of the Act as to whether it should further investigate the applicant’s claims. A line of authority has been established which provides that the applicant is obliged to put forward whatever evidence or other material that he wishes to have taken into account for the Tribunal to decide whether the claim is made out. The obligation is on the applicant to make out his own case with regard to the fact that the Tribunal only has before it the facts as alleged by the applicant that were contained in his Protection visa application and that given to the Tribunal during the hearing process. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the fact for the applicant to make out his case: Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 per Kirby J at 596. In this case the applicant had the opportunity to attend the hearing and furnish additional material. To the extent that he did the applicant did not now complain that any other facts were not taken into account or furnished additional facts and asked them to be taken into account: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at [57] with Gleeson CJ agreeing at [1].
The Tribunal is not under any obligation to make its own enquiries to establish the veracity of the applicant’s claims nor is it obliged to accept a claim merely because positive evidence to the contrary is absent: SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 per Hely J at [36].
Ground six
(e) I sincerely hope that Australia government could protect me because I would be jailed if I return to my original country – PR China.
This ground does not raise any allegation of jurisdictional error in respect of the Tribunal’s decision but is simply a statement of the applicant requesting that the Australian government offer him protection by granting him a Protection visa.
Ground seven
(f) The decision made by the Tribunal is illogical.
The applicant’s claim that the Tribunal’s decision was illogical is again made without particulars or submissions supporting the allegation. The Tribunal’s decision was based on its view of the facts presented by the applicant in his Protection visa application and subsequently developed in his oral evidence before the Tribunal. The material relied upon by the Tribunal is clearly set out in the decision record and the conclusion drawn from the contents of that material. This is a determination of fact to be made. The applicant is requesting that this Court conducts a merits review assessing the appropriateness of the decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review questions whether the decision maker was authorised to do what he did under the prevailing law and not whether the actual decision was the best decision which could have been made in the circumstances. A merits review provides a complete rehearsal of all the issues relevant to the application. A merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
Illogical reasoning or a “want of logic” does not of itself constitute an error of law or jurisdictional error, nor does it necessarily indicate that there has only been a purported exercise of power: WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 per Marshall, Mansfield and Sopias JJ at [22] where their Honours stated:
… In any event, illogicality has not been established by the authorities as a proper ground upon which to grant judicial review of a decision of the RRT; see NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [22] to [30].
Conclusion
The applicant in these proceedings was a self represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant was provided with the opportunity to participate in the court sponsored scheme to obtain assistance from a panel advisor but the applicant declined this opportunity. The applicant was also granted leave to file an amended application together with any supporting affidavits to particularise and develop his claims but the applicant has not availed himself of this opportunity. The applicant had no clear understanding of the function of this hearing or to the issues that were being addressed by the Court. It is apparent that the applicant has been receiving assistance from some unidentified person but that assistance has been of little help to the applicant as the application has been directed towards a further merits review of his Protection visa application and not a judicial review of the Tribunal’s decision. When the applicant was invited to make oral submissions the applicant did not respond with any meaningful material other than that the matter be returned to the Tribunal so that he could explain the nature of his claim.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 September 2008
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