SZMBZ v Minister for Immigration
[2008] FMCA 882
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 882 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether information provided by the applicant properly considered – merits review not function of judicial review – applicant must make out own case. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v Commonwealth (1998) 197 CLR 510 NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZMBZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 707 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 13 June 2008 |
| Date of Last Submission: | 13 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 26 March 2008 is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $3,800 payable within four (4) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 707 of 2008
| SZMBZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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 19 February 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant is a citizen of China born on 1 July 1961. She arrived in Australia on 26 July 2007 on a Chinese passport issued in her own name.
The applicant lodged an application for a protection visa on 20 August 2007 (Court Book (CB) 13). She claimed that she has been persecuted, jailed and tortured in China due to her practice of Falun Gong (CB 27).
On 28 September 2007 the delegate refused to grant the applicant’s protection visa on the basis that she was not a person to whom Australia had protection obligations under the Refugees Convention (CB 44)(see Legislative framework).
On 29 October 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 48).
Legislative framework
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.
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).
Australia has protection obligations to a refugee on Australian territory.
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.
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
On 13 November 2007, the Tribunal sent a letter to the applicant inviting her to appear before it on 13 December 2007 to give oral evidence and present arguments. The applicant attended the Tribunal hearing on that day with the assistance of an interpreter.
The applicant’s claims and evidence
The applicant claimed that she had started practising Falun Dafa in Shanghai, China in December 1997 to improve her health. Falun Gong was banned in China in 1999 and the applicant claimed that she travelled to Beijing in September 2000 to protest against the ban. She further claimed that on her return to Shanghai, she was arrested and detained for 15 days in the Dalian Detention Centre. The applicant claimed she was followed and monitored and that people broke into her home and harassed her.
She claimed to have been subsequently detained in a detention centre for one year where she was tortured because she was a Falun Gong follower.
The applicant also claimed to have bribed a government official RMB 100,000 (around A$150,000) to issue her with a passport
At the Tribunal hearing the applicant claimed to have arrived in Australia with a tour group. On returning to Sydney from the tour she claimed she stayed with an unnamed neighbour before moving to her Strathfield residence. At that time she claimed to have worked as a cleaner while practising Falun Gong at home.
The Tribunal put to the applicant that there were ‘great similarities’ between her claims and another application made some years ago (N04/49169) and that “it was inconceivable that both had the exact same experiences.” In particular, the Tribunal indicated that her claims mirrored, sometimes word for word, those previous claims of being detained in the Dalian Detention Centre for 15 days and that people broke into her home and harassed her (CB 108-109).
The Tribunal discussed with the applicant whether she wanted to make comments or seek further time to comment. The Tribunal briefly adjourned to allow the applicant to prepare comments at the hearing. After the adjournment the Tribunal summarised the matter and the applicant stated she had no further comments (CB 108-109).
The Tribunal’s findings and reasons (CB 111-115)
The Tribunal was not convinced that the applicant was a Falun Gong practitioner because she displayed a scant knowledge and lack of confidence when discussing Falun Gong concepts (CB 112).
The Tribunal also found that the applicant was not a Falun Gong practitioner due to her lack of involvement with any Falun Gong practitioners in Australia (CB 112).
The Tribunal concluded that the applicant copied and hence fabricated her claimed detainment in the Dalian Detention Centre, people harassing her and breaking into her home, and that she was not detained in Dalian or anywhere else. On this basis, it concluded that the applicant was not a credible witness (CB 113).
The Tribunal rejected the applicant's claim to have travelled to Beijing to protest about Falun Gong. It also considered that she fabricated her claim in relation to bribing an official to issue a Chinese passport to her (CB 113).
The Tribunal did not accept that the applicant would have any association with Falun Gong, nor that she would be motivated to learn about or develop an interest in Falun Gong, if she were to return to China (CB 114).
For these reasons, the Tribunal was not satisfied that:
the applicant has a well-founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if she returns to China. The Tribunal is not satisfied that the applicant is a refugee (CB 114).
The proceedings before this Court
The applicant filed the application in this Court on 26 March 2008 setting out 2 grounds of review of the Tribunal’s decision.
The applicant appeared in person before the Court on 13 June 2008 with the assistance of a Mandarin interpreter. Ms Nandagopal appeared for the first respondent.
The applicant was invited to say anything she wished to in support of the grounds of review, and generally, after each ground was translated for her.
Grounds of application
Ground 1 of the application
Ground one of the application states that:
1. The Refugee Review Tribunal rejected the applicant's claimed involvement in Falun Gong in China without considering the all information [sic] the applicant provided.
The applicant has not provided the Court with the transcript of the Tribunal hearing, nor has she provided any particulars to identify the information provided by her which she says the Tribunal failed to consider.
I am satisfied that, on the face of the Tribunal decision record, the Tribunal considered all the information provided by the applicant, being the information set out in the applicant's protection visa application (summarised by the Tribunal at CB 104-105) and her oral evidence at the Tribunal hearing (summarised by the Tribunal at CB 106-110).
The Tribunal rejected the applicant's claim to be a Falun Gong practitioner on the basis of her lack of knowledge of Falun Gong and her lack of involvement with Falun Gong practitioners in Australia.
The Tribunal also found that the applicant was not a credible witness given that her claims mirrored, sometimes word for word, someone else's claims made some years ago. Before reaching this adverse credibility finding, the Tribunal gave the applicant sufficient opportunity to comment on or respond to its concerns and to provide any further information, whereupon:
She stated she had no comments (CB 109).
The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137]. As observed by the Full Federal Court observed in NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24].
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims regarding her alleged involvement in Falun Gong in China and Australia; explored those claims with her at the hearing; identified the determinative issues and gave her sufficient opportunity to give evidence and make submissions on those issues at the hearing; closely noted the applicant's responses; and made findings based on all the evidence and material before it.
I consider that the Tribunal’s 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 detailed reasons for rejecting the applicant’s claims concerning her involvement in Falun Gong; 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 considered all the information provided by the applicant; complied with the statutory regime in the making of its decision; and performed the task required of it in accordance with law.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application.
Ground 2 of the application states that:
2. The Refugee Review Tribunal has no reason not to accept that the applicant will have any associate with Falun Gong in China if the applicant returns.
The applicant appears to be asserting that the Tribunal was obliged to accept her contention that she would have an association with Falun Gong if she returned to China, in the absence of evidence to the contrary.
It is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the decision-maker to be satisfied. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
The Tribunal was not required to make the applicant’s case for her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Furthermore, in assessing the materials put forward by the applicant, the Tribunal was not required to accept uncritically any and all allegations or assertions made by her: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451, 124 ALR 265 at 278.
The Tribunal did not accept that the applicant would have any association with Falun Gong, or would be motivated to learn about or develop an interest in it if she returned to China, given that the Tribunal was not satisfied that the applicant was a Falun Gong practitioner.
I am satisfied that this finding of fact by the Tribunal was open to it on the evidence before it and that the applicant failed to advance such evidence or argument which would have enabled the Tribunal to reach the requisite state of satisfaction on this matter.
In these circumstances, I consider that the applicant is, in effect, seeking that the Court engage in impermissible merits review which is not the function of this Court (and see ground 1 above).
Accordingly, Ground 2 of the application is rejected.
Conclusion
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.
The application before this Court is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 30 June 2008
11
2