SZMDX v Minister for Immigration
[2008] FMCA 1135
•15 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1135 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether “evidentiary basis” required for the applicant’s claims – onus of proof in inquisitorial proceedings – applicant must make out own case – whether proper consideration of applicant’s claims – merits review not function of judicial review – credibility – procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474 |
| Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 SZBEL WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZMDX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 964 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 4 August 2008 |
| Date of Last Submission: | 4 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2008 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 18 April 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,000 payable within months four (4) of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 964 OF 2008
| SZMDX |
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 2 February 1962. He claims to be a national of the People’s Republic of China.
The applicant arrived in Australia on 26 July 2007 on a Chinese passport issued in his own name. He lodged an application for a protection visa on 20 August 2007 on the basis that he had a well-founded fear of persecution arising from his status as a Falun Gong practitioner.
On 25 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 26 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 10 December 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 1 February 2008 to give oral evidence and present arguments.
The applicant’s claims and evidence (Court Book (CB) 101-106)
The Tribunal summarised the applicant’s claims and evidence as follows (CB 106-107):
The applicant claims that he was born in Shanghai. He was a Falun Gong practitioner persecuted by the Chinese government. He advised that he practised Falun Gong for one year, correcting this at hearing and advising the Tribunal that he only practiced for two weeks. The applicant was detained. However the applicant clarified at hearing that the reason for his detention was because of the distribution of Falun Gong propaganda and anti-government pamphlets for a three year period ending in his detention for seven months in 2005. The applicant claims that whilst in detention he was injected with unknown drugs which led to headaches.
At hearing the applicant advised that he travelled to Australia in a passport that he freely obtained in the People’s Republic of China through proper authorised channels. The applicant advised that there was no difficulty in obtaining the passport. The applicant did however advise that he was able to apply for a Tourist Visa and obtain the Tourist Visa to travel to Australia, because he applied with his ex-wife and his daughter from his first marriage. He used a falsified marriage certificate in order to establish that he was still in a marital relationship with his ex-wife, when this clearly was not the case and was used to affect a migration outcome.
The applicant claims that he took the risk of distributing Falun Gong propaganda and anti-government pamphlets, because his father, a fervent Falun Gong practitioner, had been jailed for a substantial period of time, and was subject to abuse by the Chinese authorities. This led to the applicant developing a dislike of the authorities and the People’s Republic of China.
The applicant confirmed that after his release from detention in 2005, and up until the time of his departure that he had no problems in the People’s Republic of China. The applicant also advised at hearing that he did not believe that he would face persecution for a convention based reason if he was to return to the People’s Republic of China. The applicant also indicated that one of the primary motivators for coming to Australia was to find better economic prospects and greater stability.
The applicant clearly stated at hearing that his primary objective to travel to Australia was to pursue better economic prospects.
The Tribunal’s findings and reasons (CB 106-108)
I accept that the first respondent accurately summarises the Tribunal's findings and reasons as follows:
The RRT concluded that the Applicant was not a witness of truth, having regard to the following matters (CB 107-108):
· the Applicant had used a falsified document in order to obtain a Tourist Visa to Australia;
· the Applicant had no knowledge of Falun Gong practice;
· the Applicant gave inconsistent evidence in relation to his detention by the authorities; and
· the Applicant freely advised the RRT in his evidence that he was motivated by an economic benefit in coming to Australia, that he had no trouble with the authorities in the PRC in the two years prior to departing that country and that he did not expect anything to specifically happen to him which would constitute persecution if he was to return to China.
The Tribunal concluded that the applicant was not a refugee, that he did not have a well founded fear of persecution and that he had fabricated his claims in order to obtain permanent residence through the refugee program (CB 108).
The proceedings before this Court
The applicant filed the application in this Court on 18 April 2008 setting out one ground of review of the Tribunal’s decision.
The applicant appeared in person before this Court on 4 August 2008 with the assistance of a Mandarin interpreter. Ms Wong of counsel appeared for the first respondent.
The applicant was invited to say anything he wished to in support of the grounds of review, and generally, after each ground was translated for him.
Grounds of application
Ground 1 of the application
Ground 1 of the application states that:
The Refugee Review Tribunal applied the wrong test.
Particulars
The Tribunal required that there should be an “evidentiary basis” before a claim by the applicant could be expected [sic].
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 himself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for him: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. 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.
As also 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.
The Tribunal is not required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
Applicant’s oral submissions
At the hearing, the applicant submitted in regard to the “evidentiary basis” raised by him under this ground that:
… my true claims for application for Protection Visa were not included in my application before the Tribunal. What has been said in the documents before the Tribunal are not my true claims … Documents before the Tribunal are not my true claims … In the course of the hearing I told the Member before the Tribunal the content in my application form was not true” (Court transcript, 4/8/08, pp 2, 3).
The Tribunal summary of the evidence discloses that the applicant informed the Tribunal at the hearing that some of the contents of his protection visa application were not true, as follows:
The Tribunal asked the applicant who had provided assistance to him in the completion of the form B and form C submitted to the Department in support of his claims for protection. The applicant stated that he was working for a butcher in Newcastle and his boss provided him with assistance in completion of the form, however the applicant stated that the contents of the forms had not been read back. The Tribunal noted that the applicant had annexed to the form B and form C a statement encapsulating his claims for protection. Once again the applicant confirmed that the butcher that he had worked for in Newcastle assisted him in the completion of the statutory declaration. The Tribunal asked whether the contents of the statutory [declaration] were a true and correct account of his claims for protection. The applicant stated that he could not be sure what was in the statement. On this basis the Tribunal adjourned the proceedings to allow an accredited interpreter to go through the statement with the applicant.
… The Tribunal asked the applicant whether he had ever been to Indonesia, given that the statutory declaration submitted in support of the application states that he had a fear of returning to Indonesia. The applicant confirmed that this was a mistake.
After been given an opportunity with an interpreter to go through his application, and make any corrections or provide any additional evidence, the applicant advised that there was only one other error in the statement submitted with the Protection Visa application. This was in the second paragraph, where the applicant stated that he practised Falun Gong for one year, this was incorrect with the applicant stating that he had only practised for two weeks (CB 103, 104).
The applicant therefore pointed out to the Tribunal the inaccuracy of the claim in his protection visa statement that he had practised Falun Gong for one year.
In this regard, the Tribunal explored with the applicant how much he knew about Falun Gong “given that he had practised it for two weeks, his father had practised it for nine years, and he distributed pamphlets for three years” (CB 104-105).
In its Findings and Reasons, the Tribunal specifically refers to this matter:
He advised that he practised Falun Gong for one year, correcting this at hearing and advising the Tribunal that he only practised for two weeks. The applicant was detained. However the applicant clarified at hearing that the reason for his detention was because of the distribution of Falun Gong propaganda and anti-government pamphlets for a three year period ending in his detention for seven months in 2005. The applicant claims that whilst in detention he was injected with unknown drugs which led to headaches (CB106).
I consider that it was open to the Tribunal to conclude that the applicant was not a witness of truth, including on the basis that:
The applicants claims which are encapsulated in a one page typed statement annexed to the 866 application submitted to the Department claim that the central basis of these claims or persecution centred around Falun Gong practice. The applicant had no knowledge of Falun Gong practice, and was only able to name the leader and founder of Falun Gong, Mr Li Honghzi (CB 107).
Merely because the applicant disagrees with the Tribunal’s findings of fact in this regard does not amount to an error of law. 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].
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, and set out a closely reasoned analysis of them; 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 of fact, in particular that the applicant was not a witness of truth, 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 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. I thus detect no procedural unfairness on this basis.
Accordingly, Ground 1 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 thirty-three (33) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 15 August 2008
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