SZMCP v Minister for Immigration & Anor - [2008] FMCA 855

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCP v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 855

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of China – claiming to fear persecution on the basis of being a member of a particular social group – Falun Gong practitioner – credibility – no reviewable error.

PRACTICE & PROCEDURE – Evidence – Court conducting judicial review has no jurisdiction to accept fresh evidence going to the factual merits of the applicant’s claim.

Migration Act 1958 (Cth), ss.36, 91R, 424, 424A, 425, 425A, 427, 441A
Federal Magistrates Court Rules 2001 r.44.12

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1998) 185 CLR 259 cited
Re Minister for Immigration and Multicultural Affairs; exparte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed.

Applicant:

SZMCP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 785 of 2008

Judgment of:

Scarlett FM

Hearing date:

10 June 2008

Date of Last Submission:

10 June 2008

Delivered at:

Sydney

Delivered on:

10 June 2008

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 785 of 2008

SZMCP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicant is a citizen of the People's Republic of China. He has applied to the Court for judicial review of a decision of the Refugee Review Tribunal. The Refugee Review Tribunal affirmed the decision of a Delegate of the Minister of Immigration and Citizenship not to grant him a protection visa. The applicant claims that the Tribunal should not have refused his application just because the Tribunal did not believe his evidence.
He claims in his application that he had provided evidence and the Tribunal cannot deny this evidence and just say that it did not believe his evidence. He claims that this is a subjective decision and not a decision according to law. He also claims in his application that he took back to China from Australia documents, which were seriously anti party and as a result he is facing persecution in China. He submitted that he cannot find fair treatment in China and is seeking help as a human being in Australia.
The first respondent to the application, the Minister for Immigration and Citizenship, has filed a response. In the response the Minister claims that the application has not raised an arguable case for the relief claimed and refers to r 44.12(1)(a) of the Federal Magistrates Court Rules.

Background

The background to this matter is that the applicant arrived in Australia on 25 September 2007. On 11 October in that year he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. The basis of his application was that he claimed to be a Falun Gong practitioner. Falun Gong is prohibited in China. He complained that the police in China were forcing him to give up Falun Gong but Falun Gong is his faith and he can never give up his faith.
He claimed to have suffered a lot of violence by the Chinese government and was forced to give up a very good job which he had had for the last 25 years. He claimed to fear for his future life and he said:
I must leave China with my faith otherwise I have no way to live in the world[1].
[1] See Court Book at page 19
The applicant also claimed that the Chinese police have a list of Falun Gong practitioners and if his activities and practices were found out the police would arrest him. He did not believe that the authorities in China would protect him if he returned because the persecution, of which he complained was carried out by the Chinese government and that the police were the weapon of the Chinese government[2].
[2] See Court Book at page 22
A Delegate of the Minister considered his application noting that he feared persecution because of his belief in Falun Gong and his practice of Falun Gong, which is an organisation banned in China. The Delegate noted:
Falun Gong appears to have a quasi religious nature although Country Information suggests the Chinese government targets Falun Gong practitioners for their attributed political opinion[3].
[3] See Court Book at page 39
The Delegate considered Independent Country Information about Falun Gong and the practice of Falun Gong in China. However, the Delegate was not satisfied that the applicant was a person of significant adverse interest to the Chinese authorities and noted that he had been granted a visitor's visa to Australia. The Delegate also noticed that the applicant was granted a visitor's visa to come to Australia on 13 January 2006 and on that occasion stayed in Australia for a month.
The Delegate noted that there was no corroborating information in the protection visa application that would lead the Delegate to give more weight to any of the applicant's claims and went on to say:
Most of the applicant's claims are generalised and the absence of personal detail suggests that the claims have been contrived[4].
[4] See Court Book at page 44
The Delegate refused the application for a protection (Class XA) visa on 29 October 2007. The applicant then sought a review of the Delegate's decision from the Refugee Review Tribunal. With the aid of his advisor and Migration Agent he lodged an application for review at the Sydney Registry of the Refugee Review Tribunal by fax on 1 December 2007. The applicant did not provide any documentary evidence with his application.
The Tribunal wrote to him on 1 December acknowledging receipt of the application and wrote again on 19 December 2007 inviting the applicant to attend a hearing on 23 January 2008. The letter inviting the applicant to attend the hearing drew the applicant's attention to a form enclosed headed "Response to Hearing Invitation". The letter said, relevantly:
Please read, complete and return the enclosed response to hearing invitation form to confirm the hearing and to advise us of who will take part in the hearing. Please use the form or attach additional information if there are any requests or new information you wish the Tribunal to consider. Any documents or written argument sent to the Tribunal should be in English or be translated by a qualified translator. Please return the completed form and any new documents or written arguments by 9 January 2008[5].
[5] See Court Book at page 53
The applicant completed the response to hearing invitation and indicated that he did wish to attend the hearing and would require the assistance of an interpreter in the Mandarin language. He also indicated that he wanted to bring someone else to the hearing with him who was a relative. The relative in fact was his daughter who did attend the hearing on 23 January. On that date the applicant gave evidence with the assistance of an interpreter in the Mandarin language. The Tribunal signed its decision on 27 February 2008. The Tribunal handed the decision down on 11 March 2008. The Tribunal decision said:
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) Visa.

Refugee Review Tribunal decision

A copy of the Tribunal decision record can be found in the Court Book at pages 64 through to 81. In the decision record the Tribunal set out the applicant's claims of evidence as given first then the application for a protection visa and then at the Tribunal hearing the Tribunal gave an extensive summary of the applicant's evidence noting his claim in the protection visa application saying that he was a Falun Gong practitioner. The Tribunal noted that the applicant told the Tribunal that he was seeking protection because he was a victim and went on to note:
He was not a Falun Gong practitioner and had not practised Falun Gong in China though he has started to practise Falun Gong in Australia. He started practising Falun Gong in the second week after arriving in Australia around the end of September 2007. The Tribunal asked why he started to practise Falun Gong if he was not a practitioner and he stated that when he was in China he lost his job because of his connection with Falun Gong and in Australia he visited a practice site to obtain information about Falun Gong[6].
[6] See Court book at page 67-68
The Tribunal went on to note that the applicant stated that he was a Christian at the hearing:
The applicant then stated that he was a Christian and he swears to God that he would not lie to the Tribunal. The Tribunal indicated that he had told the Tribunal that he started to practise Falun Gong after his arrival in Australia. He had just indicated he was a Christian yet had stated in his application that he was a Falun Gong practitioner. The Tribunal doubted he was telling the truth. He stated that he swears to God he was telling the truth[7].
[7] See Court Book at page 68
The Tribunal ask the applicant a number of other questions including questions about his knowledge and practise of Falun Gong. The Tribunal noted at page 72 of the Court Book that it raised its concerns with the applicant about his lack of knowledge about the philosophical concepts behind the practice of Falun Gong, in particular the Falun and his lack of knowledge of the most significant book about Falun Gong which was Zhuan Falun.
The Tribunal noted that the Tribunal member explained the provisions of subsection 91R(3) of the Migration Act to the applicant and referred to its concerns about the applicant's evidence regarding taking material on Falun Gong back to China from his previous visit to Australia. The Tribunal noted that it raised doubts about the applicant's evidence regarding his practice of Falun Gong and the Tribunal again referred to the provisions of subsection 91R(3) of the Migration Act.
The Tribunal decision record also referred, at pages 73 to 77 of the Court Book, to independent evidence relating to the practice or philosophy or religion known as Falun Gong and about Christianity in China.

The Tribunal’s Findings and Reasons

The Tribunal’s Findings and Reasons are set out at pages 77 to 81 of the Court Book. The Tribunal accepted that on the basis of the applicant's passport that he was a citizen of the People's Republic of China. However, the Tribunal went on to say:
The Tribunal has serious concerns about the credibility of the applicant's evidence regarding the events and circumstances in China related to his imputed involvement in Falun Gong which let to his departure from China in September 2007 and which formed the basis of his protection claims[8].
[8] See Court Book at page 77
The Tribunal referred to the applicant's evidence describing certain parts of it as highly implausible and went on to say:
The Tribunal finds that the applicant has not been a witness of truth in respect of the evidence about the events which triggered the claimed adverse attention of the authorities on his return to China in June 2006. The Tribunal has considered the applicant's statements at the hearing that he would not lie and that he had no need to fabricate evidence given he used to have a good position and life in China. The Tribunal is not satisfied that the applicant's assertions that he was telling the truth overcome the Tribunal's serious doubts about the credibility of his evidence.
The Tribunal went on to say that it had considered the evidence of the applicant's Falun Gong activities since he arrived in Australia but found that he had demonstrated a very limited knowledge of Falun Gong that was not consistent with his claim to have commenced practising Falun Gong in September 2007 and had become a Falun Gong practitioner. The Tribunal went on to refer to the provisions of subsection 91R(3) of the Migration Act in relation to conduct engaged in by the applicant in Australia and stated that it was not satisfied that the applicant had engaged in this conduct in Australia, that is the practice of Falun Gong, otherwise than for the purpose of strengthening his claims to be a refugee.
Accordingly the Tribunal disregarded the applicant's conduct in Australia in assessing whether he had a well-founded fear of being persecuted for one or more of the reasons mentioned in articles 1A(2) of the Refugee's Convention as amended by the Refugees Protocol. The Tribunal did not accept that the applicant was or had been a genuine Falun Gong practitioner in Australia and did not accept that the applicant had ever been a practitioner of Falun Gong in China.
Accordingly the Tribunal did not accept that the applicant would be involved in practising Falun Gong in China upon his return and did not accept that there was a real chance that he would be persecuted for reasons of practice of or involvement in Falun Gong if he were to return to China at that time. The Tribunal went on to consider whether that was a claim under the convention grounds of religion, membership of a particular social group, such as Falun Gong practitioners, or imputed political opinion.
The Tribunal then went on to consider the applicant's evidence in relation to Christianity. The Tribunal found that the applicant had given vague evidence regarding his Christian beliefs and activities and went on to find:
Given the applicant's vague evidence about whether he even regarded himself as a Christian and his lack of knowledge about which church he attended the Tribunal does not accept that the applicant is or has been a genuine and practising Christian. The Tribunal does not accept that the applicant will practise Christianity if he returns to China[9].
[9] See Court Book at page 80
The Tribunal found that there was not a real chance that the applicant would be persecuted for reasons of any belief in or involvement in Christianity if he were to return to China. The Tribunal went on to make this statement:
The Tribunal notes that there are some inconsistencies between the information the applicant provided in the protection visa application form and his evidence at the hearing. The Tribunal has not, however, relied on these inconsistencies in reaching its conclusions. The Tribunal has made its finding based on the applicant's evidence given at the Tribunal hearing regarding the circumstances that he claimed brought him to the adverse attention of the authorities in China, his practice of Falun Gong in Australia and his involvement in Christianity[10].
[10] See Court Book at page 80 -81
The Tribunal found that the applicant did not have a well founded fear of being persecuted for a Convention reason if he were to return to China and found that he did not satisfy the criterion set out in subsection 36(2)(a) of the Migration Act for a protection visa. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) Visa.
The applicant then commenced proceedings in this Court for judicial review of the Tribunal decision. He did so by filing an application and an affidavit in support on 3 April 2008. He subsequently filed a notice of change of address for service and forwarded to the Court certain documents translated from Chinese. I have accepted two of them on the basis that they are documents in the nature of submissions, although I accepted one of those two documents on that basis over the objection of the solicitor for the Minister.
There was another document translated from Chinese, which purported to be a wanted circular relating to the applicant's involvement in Falun Gong and being wanted as a Falun Gong practitioner by the police in China. The solicitor for the Minister, Ms Hanstein, objected to the tender of that document and I refused the tender of the document on the basis that it is a piece of fresh evidence which the applicant told me had not been presented to the Refugee Review Tribunal.
The Court has no power to accept fresh evidence relating to the factual findings made by the Refugee Review Tribunal. In the application the applicant seeks two orders:
i)Give protection visa.
ii)Allow stay in Australia.
I have explained to the applicant that the Court does not have the power to give an applicant a protection visa; that is a function that resides with the Minister for Immigration or a Delegate of the Minister. I indicated, however, that the Court had the power to review the decision of the Refugee Review Tribunal in order to ascertain whether or not it was affected by jurisdictional error.
If the decision is affected by jurisdictional error the Court has the power to make an order in the nature of certiorari quashing the decision and the power to make an order in the nature of mandamus remitting the applicant's application for review of the Delegate's decision to the Refugee Review Tribunal for determination according to law. However, before the Court can do that the Court must be satisfied that the decision is affected by jurisdictional error.
The applicant told the Court that he was an average person and had had a good job for more than 30 years. He indicated that he had a very high lifestyle in China and it was unnecessary for him to seek asylum, presumably on economic grounds. He criticised the Tribunal for making a decision subjectively or based on the Tribunal's own assumptions saying that he had no choice but to apply for asylum in Australia.
The solicitor appearing for the Minister, Ms Hanstein, referred to her written submissions and reiterated the submission that the applicant's written and oral claims went no further than to complain about the factual merits of the Tribunal's decision. She submitted that no jurisdictional error had been articulated and the Court cannot reconsider the merits of the Tribunal decision. She submitted that the application must therefore fail.
In reply the applicant complained that if the Tribunal had not believed his evidence then it should have given the reasons for not believing him and if the Tribunal had doubts about his evidence then the Tribunal should have asked him to provide further information. He said that he had given this evidence to the Refugee Review Tribunal and the Tribunal could itself go out and have this evidence investigated if it had doubts about his claims.
He reiterated his submission that the Tribunal cannot make a decision based on its suspicions and that if the Tribunal had doubts it was open to the Tribunal to make its own investigations. He said that if the Tribunal had explained sufficiently about its doubts he would have provided further evidence. He said that he was unaware of the need to provide evidence to the Tribunal at that stage and said the Tribunal was partly to blame for not informing him of this.
The Minister has provided a written outline of submissions in which the Minister claims the application contained two grounds which in substance appear to be no more thank complaints about the merits of the Tribunal's decision and that no jurisdictional error was identified. The Minister submitted that the Court cannot review the merits of the Tribunal's decision and referred the Court to the decision of the High Court of Australia in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[11].
[11] (1998) 185 CLR 259 at 272
Ms Hanstein submitted that no jurisdictional error was apparent in the Tribunal's decision and its findings were open to it on the material before it. In addition the information that the Tribunal relied on in reaching its decision fell within the exceptions contained in sub-s.424A(3)(a) and (b) of the Migration Act and that the applicant had been put on notice at the Tribunal hearing of the issues arising in relation to the decision which was under review. In considering the application for review I note the applicant's first ground which says:
RRT should not refuse my application just by "not believe". Australia as a country has very good law system. I provided evidence but RRT cannot deny this evidence and just don't believe the evidence. Therefore this is subjective, this is not a justice decision by law, this is a wrong way to use law.

The first point to be made is that it is for the applicant to satisfy the Tribunal or the Minister for Immigration and Citizenship that the applicant is entitled to a protection visa. The Migration Act in s.65 makes it clear that if the Minister, or in this case the Tribunal, is satisfied that the applicant meets the requirements to a visa then the applicant should be given a visa. It follows, however, that if the Tribunal is not so satisfied then a visa will not be forthcoming.
It is not open to the Tribunal, or necessary for the Tribunal, to provide evidence of its own contradicting the applicant's claims. The applicant's evidence either satisfies the Tribunal or it does not. The applicant claims in his oral submissions that if the Tribunal had doubts about the veracity of his evidence it should have either asked him to provide additional information or it should have conducted its own investigations.
True it is that the Tribunal has powers under s.424 and s. 427 of the Migration Act to seek further information either from the applicant or otherwise but it is well established that the Tribunal is under no obligation to do so. The Tribunal decision was based on the Tribunal's assessment of the credibility of the applicant's own evidence. It is well established that an assessment of credibility is a factual decision; it is a matter for the administrative decision makers, in this case the Tribunal.
The High Court of Australia has made this very clear in the well known authority of Re Minister for Immigration and Multicultural Affairs; exparte Durairajasingham[12]. So long as there is evidence upon which it is open to a Tribunal to make findings then there is no jurisdictional error. In this case the Tribunal considered the applicant's evidence but was not satisfied that the applicant was a credible and truthful witness.
[12] (2000) 168 ALR 407; [2000] HCA 1
The Tribunal had considerable doubts about the circumstance, which the applicant set out about his claims to have practised Falun Gong and about his claims relating to Christianity. These were decisions for the Tribunal to make and not subject to challenge on jurisdictional review. In my view, the applicant's first ground fails.
The applicant's second ground says:
I have brought back
presumably from China:
documents which are seriously anti party. I am facing persecution; as a human being I cannot find fair in China; I am seeking help as a human being in Australia.
This is a statement of the applicant's claim. It is a re-agitation of the factual matters that the applicant wished the Tribunal to accept. It is, indirectly, an invitation to the Court to embark on a review of the merits of the Tribunal's decision. The Court does not have the power to conduct a merits review. Fact finding is a matter for the Tribunal as has been set out in the decision of Minister of Immigration & Ethnic Affairs v Wu Shan Liang[13], as previously referred.
[13] (1998) 185 CLR 259 - 272
The applicant's second ground relates only to a claim for merits review and does not establish jurisdictional error.
The applicant's oral submissions that the Tribunal wrongly rejected his application based on credibility have already been dealt with and no jurisdictional error is established there, nor does the applicant's claim that the Tribunal, if it was in doubt, should have conducted its own investigations. No jurisdictional error is established there.
I am mindful of the fact that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision and the supporting documents in order to ascertain whether any other ground for jurisdictional may be established. In my view this is a case where the Tribunal correctly applied the provisions of s.425 of the Migration Act by inviting the applicant to attend a hearing, give evidence and present arguments about his case.
The Tribunal sent the invitation in a way that complied with s.441A and s.425A of the Migration Act. The applicant attended the hearing; he gave evidence with the assistance of an interpreter in the language which he requested. The Tribunal raised its concerns with the applicant about his account, concerns which had been made clear to the applicant and I note that the Delegate's decision referred to the applicant's generalised and uncorroborated claims.
The applicant was certainly not taken by surprise by any unexpected issue raised at the Tribunal hearing. I am certainly of the view that s.425 has been complied with. There is no breach of s.424A of the Migration Act. The Tribunal made it quite clear that it based its decision on its assessment of the applicant's evidence and on Independent Country Information. They are matters that are, as Ms Hanstein submitted, excluded from the operation of subsection 424A(1) of the Migration Act by subsection 424A(3)(a) and (b).
There is no breach of s.424A of the Migration Act. The basis for the Tribunal's decision was that in the long run the Tribunal was not satisfied as to the credibility of the applicant's account and was not satisfied that he had established that he had a well-founded fear of persecution in China for a Convention reason. The Tribunal has not fallen into jurisdictional error. No jurisdictional error has been found.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Accordingly it is not open to the Court to make orders in the nature of certiorari or mandamus or prohibition. As the decision is a privative clause decision as defined by the Act this application for review must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim and this is an appropriate matter for a costs order in favour of the first respondent. The amount sought is $3700. That is an amount that I consider is within the scale set out in the Federal Magistrates Court Rules. I note that the application first came before the Court on 28 April 2008 and it was adjourned until today when it was listed for final hearing. I am satisfied that $3700 is an appropriate figure in all the circumstances.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 24 June 2008