SZMDK v Minister for Immigration
[2008] FMCA 981
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 981 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.424A of the Act – merits review not function of judicial review – credibility – procedural fairness – whether applicant’s claims properly considered. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 474 |
| QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Chen Xin He v Minister for Immigration & Ethnic Affairs [1995] FCA 1682 (23 November 1995) 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 Abebe v Commonwealth (1998) 197 CLR 510 |
| Applicant: | SZMDK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 911 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 30 June 2008 |
| Date of Last Submission: | 30 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 15 April 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $2,600 payable within three (3) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 911 of 2008
| SZMDK |
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 13 March 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 was born on 7 November 1970. He claims to be a national of China and of Falun Gong faith.
The applicant arrived in Australia on 31 July 2007 on a Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on
11 September 2007on the basis that he is a Falun Gong practitioner and he has been persecuted, jailed and beaten by the Chinese authorities due to his practice of Falun Gong.
On 18 October 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 20 November 2007 the applicant applied to the Tribunal for review of the delegate’s decision.
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 5 December 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 15 January 2008 to give oral evidence and present arguments. The applicant attended the hearing on that day with the assistance of a Mandarin interpreter.
Applicant’s claims and evidence (Court Book (CB) 75-80)
The Tribunal summarised the applicant's claims and evidence, as follows:
The applicant claims to have started practising Falun Gong in 1997 because he suffered from pain. He said a distant relative told him Falun Gong could help and gave him a photocopy of a book on Falun Gong. He said from 1997 to 2003 he taught himself slowly by reading the book and that he practised two to three times a week for half an hour. He said he practised alone and sometimes with his ex-wife. He said during this period he read the book and practised two of the five exercises. The applicant claims that in 2003 he was arrested, detained and mistreated by the PSB for practising Falun Gong. He said after this, from 2003 until he came to Australia in July 2007, he rarely practised. After further questioning about the frequency of his practise during this period, he said he practised once a week or every two weeks. The applicant said since arriving in Australia he has practised very rarely because he has not found suitable people. After further questioning about the frequency of his practice in Australia, he told the Tribunal that he practises once every two to three weeks with a group at Central station and that he still only practises two of the five exercises.
The Tribunal’s findings and reasons (CB 83-85)
The Tribunal found that the applicant was not a genuine Falun Gong practitioner; that he was not a credible witness; and accordingly rejected all his claims.
It found that he demonstrated very little knowledge of key aspects of Falun Gong, including the name of its most important text, and that he could only state two of the five main exercises. It did not accept his explanation for not being able to answer basic questions about Falun Gong.
The Tribunal therefore did not accept that the applicant had experienced any of the claimed problems in China, including that he was arrested, detained, or mistreated by the authorities.
The Tribunal further was not satisfied that the applicant had engaged in conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee and hence it disregarded his practice in Australia pursuant to s.91R(3) of the Act in determining whether the applicant had a well founded fear of persecution for one or more of the Convention reasons.
For these reasons, the Tribunal found that the applicant did not have 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, for his political opinion, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 15 April 2008 setting out one ground of review of the Tribunal’s decision.
The applicant appeared in person before the Court on 30 June 2008 with the assistance of a Mandarin interpreter. Ms Nandagopal appeared for the first respondent.
The applicant was invited to say anything he wished to in support of the ground of review, and generally, after ground 1 was translated for him.
Grounds of application
Ground 1 of the application
Ground 1 of the application states that:
(1)The Refugee Review Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to this matter. Thus, the Tribunal made an error in law.
The applicant has made a generalised assertion in this regard, without providing any particulars which might identify what relevant “particulars of information” he says were not explained to him “in the form of a document” which he asserts constituted an error of law.
To the extent that the applicant is alleging that the Tribunal failed to provide procedural fairness in breach of s.424A of the Act by not providing him in writing with clear particulars of information upon which it would, subject to his comment or response, make an adverse finding, I do not consider that s.424A is enlivened in the present case. The applicant is not entitled to common law procedural fairness in this regard: s.422B of the Act.
The Tribunal was not obliged to put to the applicant in writing for his comment or response, the oral evidence of the applicant given at the Tribunal hearing and upon which it relied in reaching its decision. Such information is excluded under s.424A(3)(b), being “information that the applicant gave for the purpose of the application.”
To the extent that the Tribunal also relied on country information in making its decision, the Tribunal was not obliged to put this information to the applicant for his comment or response since it fell within the statutory exception under s.424A(3)(a): QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92 at [7]-[30]; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11]-[16].
It is also evident that a proper construction of the word “information” in the context of s.424A, and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified 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, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Equally at the forefront of the Tribunal’s thought processes and appraisals of the evidence in the present case, was the credibility of the applicant’s evidence. I consider therefore that the Tribunal was not obliged to notify the applicant pursuant to s.424A(1) of its concerns about his credibility.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review … The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision.
As relevantly stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
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:
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[2000] 168 ALR 407 at [67].
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 & Ethnic Affairs [1995] FCA 1682 (23 November 1995) at [24].
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].
I thus detect no breach of s.424A of the Act in this case and am satisfied that the applicant was accorded procedural fairness in compliance with the statutory regime.
Otherwise, I consider that a fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the nature of, and set out a reasoned analysis 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 his responses. The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.
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.
Accordingly, Ground 1 of the application is rejected.
Applicant’s oral submissions
In his oral submissions to this Court, the applicant made a series of assertions, including that:
· I am not very professional in my practice of Falun Gong … I am not totally professional because I only read the books and the text (transcript, 30/6/08, p 2).
· … although I wasn’t involved in anything large scale I only practised at home and in private and I may not have a lot of knowledge but I still read the text and the books (transcript, pp 2-3).
· I clearly stated that I taught myself, everything I know is self-taught so therefore I don’t know much and I don’t practise much. I don’t really know what the difference is between a real practitioner and a non-real practitioner and because I taught myself then of course my knowledge is limited and only to the fact that I practised in secret in private because Falun Gong is considered illegal in China. In any event … I really did practise to improve my health because all the financial pressure and various other family matters were all taken care of by me alone (transcript, pp 4-5).
· In the circumstances that I have to take care of the whole family, of course I have to work during the day and when I am tired after work so sometimes I don’t practise therefore I may not practise every day but the Immigration Department and the RRT say I don’t go out to practise on any sites, particular sites … no, I don’t, I practise at home secretly and they say that I am not a real practitioner that’s just not true because even though my knowledge is limited it doesn’t mean that I don’t practise (transcript, p 5).
The applicant is in effect seeking to re-agitate his refugee claims.
As stated under ground 1 above, it is not the function of this Court to engage in impermissible merits review.
To the extent that the applicant may be inferring that the Tribunal failed to take into account the reason that his knowledge of Falun Gong was poor was because he was self-taught and practised in private, I accept the submission by the first respondent that the Tribunal clearly considered these matters. It specifically referred in this regard to the applicant’s evidence (at CB 80) that “he knew so little because he is learning by himself, so how much could he learn”; and “it [the Tribunal] would have expected him to have obtained a copy [of “Zhuan Falun”] even if he had to read it secretly (and see the further direct reference to these matters in the Tribunal’s Findings and Reasons (at CB 84).
I thus detect no jurisdictional error on these bases.
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-three (43) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 22 July 2008
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