SZMFP v Minister for Immigration - [2008] FMCA 1452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFP & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1452

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visas to the applicants – applicants are citizen of the People’s Republic of China claiming fear of persecution for the reason that they are Falun Gong practitioners – merits review – no reviewable error.

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 474

SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed
Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

First Applicant:

SZMFP

Second Applicant:

SZMFQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1161 of 2008

Judgment of:

Scarlett FM

Hearing date:

30 September 2008

Date of Last Submission:

30 September 2008

Delivered at:

Sydney

Delivered on:

30 September 2008

REPRESENTATION

The Applicants:

The first and second applicants in person

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondents:

Ms Rayment

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1161 of 2008

SZMFP

First Applicant

SZMFQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicants are citizens of the People’s Republic of China.

They ask the Court to review a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister not to grant them protection visas.
The applicants claim that the Tribunal did not make the right decision and that the first applicant at least is a true Falun Gong practitioner. They asked the Court to quash the decision of the Refugee Review Tribunal and to send their application back to the Tribunal for determination according to law. They ask for an order that the Tribunal should be differently constituted at its second hearing.
I have explained to the applicants that the Court can only make the orders that they seek if it is satisfied that the Tribunal decision is affected by jurisdictional error.
In any case, an order remitting the application to the Tribunal should not contain a requirement that the Tribunal be differently constituted.
The Full Court of the Federal Court has made it clear in SZEPZ v Minister for Immigration and Multicultural Affairs[1] that it is doubtful that the Federal Magistrates Court has the power to make an order relating to the constitution of the Tribunal.
[1] [2006] FCAFC 107.
The applicants arrived in Australia on 19^th September 2007.

They applied for protection (Class XA) visas on 2^nd October. They are husband and wife.
The wife is the first applicant in these proceedings, although it is clear that the husband, who is the second applicant in these proceedings, was the primary applicant for a visa and was the primary applicant before the Tribunal.
In the application for a protection visa, the husband provided a statement in which he said that he was a Falun Gong practitioner and after July 1999 the Chinese Government started to prosecute Falun Gong members. He claimed that in the year 2001 he was illegally sentenced to 10 months in the Shenyang City number 1 prison.

He claimed that he was brutally tortured whilst he was if prison.
After he released, he claimed that he paid a bribe to obtain a passport for himself and his wife, and they decided to apply for protection in Australia.
A delegate of the Minister refused the application for a protection visa on 17^th December 2007. The delegate referred to the claims by the husband and said:
I find that there are a number of factors which cast serious doubts on the c edibility of his claims and the genuineness of his claimed fear of Convention-related persecution.[2]
[2] See Court book page 39.
The delegate then set out reasons for this finding.
The applicants then applied to the Refugee Review Tribunal on

23^rd January 2008
.
The Tribunal wrote to the applicants on 26^th February 2008 and invited them to attend a hearing just under a month later on 25^th March 2008. The applicants completed a response to hearing invitation and returned it to the Tribunal saying that they wished to attend and would like an interpreter in the Mandarin language.
Both applicants attended the hearing on 25^th March 2008 and the Tribunal provided an interpreter in the Mandarin language.

The applicants provided their passports to the Tribunal which took photocopies of them. Both applicants gave evidence to the Tribunal with the assistance of the interpreter.
The Tribunal asked the applicants a number of questions and signed the decision on 31^st March 2008. The Tribunal handed the decision down on 22^nd April 2008. A copy of the Tribunal decision record can be found in the Court book at pages 70 through to 78. The Tribunal affirmed the decisions of a delegate of the Minister not to grant to the applicant’s protection (Class XA) visas.
The applicants have now sought relief in this Court by means of an application and an affidavit filed on 8^th May 2008. The applicants rely on the following grounds:
1. The Refugee Review Tribunal did not make the right decision;
2. I am a true Falun Gung practitioner.
The applicants’ affidavit annexed a copy of the Refugee Review Tribunal decision. The applicants have attended Court today.
When the application first came before the Court on 2^nd June 2008, the Court made directions by consent which permitted the applicants to serve an amended application giving complete particulars of each ground of review, and an affidavit containing additional evidence to be relied on. The applicants have not availed themselves of the opportunity to file either of those documents.
The Court directed that both the applicants and the respondents should file and serve written submissions. The lawyers for the Minister have done so, but the applicants have chosen not to make any written submissions.
At the hearing of the proceedings before me this morning each applicant was offered the opportunity to address the Court in support of the application. They informed the Court that neither of them wished to say anything.
As I indicated earlier, in order for the Court to grant relief by way of orders such as certiorari or mandamus, the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error.

If there is no jurisdictional error, then the decision is a privative clause decision as set out in s 474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus or prohibition or other relief in any Court.
The two grounds of review upon which the applicants rely are that, first, the Refugee Review Tribunal did not make the right decision and, second, “I am a true Falun Gung practitioner”. There are no particulars provided of those grounds and I can only assume that the first ground, the claim of a wrong decision, relies on the second ground, the claim that the applicant husband is a true Falun Gong practitioner.
It is well established that a Court conducting judicial review of a decision of an administrative decision maker, such as the Refugee Review Tribunal, does not have the power to engage in merits review of the decision; in other words, it does not hear the claim again and it does not make a fresh assessment of the facts relating to the applicants’ claim.
So long as there is evidence upon which it was open to the Tribunal to make a decision on a factual matter, then there is no warrant for the Court to interfere in the decision.
The Tribunal in its decision set out the applicants’ claims as set out in the protection visa application and noted that no additional claims were provided with the application to the Tribunal for a review.
The Tribunal in its decision provided a summary of the applicant’s evidence to the Tribunal hearing on 25^th March 2008. The Tribunal noted that it put various propositions to the applicants indicating a lack of belief about a number of the claims made.
The Tribunal noted that the applicant husband said that he had not had any contact with any Falun Gong organisation in Australia over the period of then six months in which he had been in Australia and the Tribunal noted this statement:
He then stated that he just wanted to stay in Australia until the end of the Olympic Games in 2008, and that he would then wish to return to China.[3]
[3] See Court book page 75.
The Tribunal asked the applicants if there was anything further that they wanted to put, and the applicants said that they did not have anything further.
The Tribunal then raised an issue with the applicants about the decision of the Minister’s delegate:
The Tribunal put to the applicants that the Delegate in his decision had indicated that their claims as set out in their application was lacking in detail and vague. The Tribunal noted that they had not provided any additional information to the Tribunal and that the Tribunal found their oral evidence to be bereft of relevant detail. The applicants indicated that they had not read the Delegate’s decision and they were simply advised to come to the Tribunal and that they wished to stay in Australia at least until the conclusion of the Beijing Olympics.[4]
[4] See Court book page 76.
The Tribunal went on to offer the applicants an adjournment to think over various points of concern that the Tribunal had raised in respect of their oral evidence and provide a response. The Tribunal noted that the applicants said that they did not wish for an adjournment.
The Tribunal then indicated that it would wait one week before finalising the decision to give them an opportunity to make any written submissions that they might wish to make following the hearing.
The Tribunal signed the decision on 31^st March 2008. That would appear to me to be six days rather than a week, but in my view nothing turns on that point. The facts are that the applicants did not provide any written submission to the Tribunal, either before 31^st March or after, and in any event the Tribunal did not hand down its decision until 22^nd April 2008. It would have been open to the Tribunal to recall the decision and consider any submissions had any such submission been received prior to 22^nd April 2008. There is no record of any written submission.
The Tribunal in its findings and reasons summarised the applicants’ claims to have a well-founded fear of persecution due to the husband’s involvement with Falun Gong and his claim to have been imprisoned as a result.
The Tribunal found that the applicants were citizens of China and made that finding on the basis of the applicants’ passports issued by the People’s Republic of China and presented to the Tribunal.
However, the Tribunal did not accept that either the husband or the wife had any association with Falun Gong and made that finding on the basis of what the Tribunal described as the unconvincing nature of their oral evidence which was vague and diffident in respect to their claimed association with Falun Gong.
The Tribunal then went on to specify its disbelief of the applicant husband’s claim to have been imprisoned for a period of 10 months and the claim by the applicant wife that she too had been detained.
The Tribunal had this comment to make:
The applicant wife raised her claim to have been detained in the manner of an afterthought of the hearing. When the Tribunal put to the applicant wife that there was no reference to her claimed detention in the written statement attached to the protection visa application, she suggested that as they are a family, mention of the husband’s claimed arrest was also a reference to her arrest. The Tribunal considers that given the significance of this claim that is, to have experienced ten months imprisonment, if the applicant wife had, indeed, endured ten months imprisonment, the applicants would be more forthcoming about this event.[5]
[5] See Court book page 77.
The Tribunal did not accept that the applicants had a well-founded fear of persecution in China for a convention reason and was not satisfied that they were people to whom Australia has protection obligations under the Refugees Convention. Accordingly they were found not to satisfy the criterion set out in sub-s 36(2)(a) for a visa, or the alternative criterion sub-s 36(2)(b).
The applicants then commenced proceedings in this Court. Their application contains no grounds of fear and they have made no submissions as to any jurisdictional error.
The Court has taken into account the fact that the applicants were not legally represented in these proceedings, although they had sought to take part in the Refugee Review Tribunal Legal Advice Scheme.
I am not of the view that any breach of s 425 of the Migration Act can be shown. The applicants were invited to a hearing in sufficient time and they attended the hearing. They were provided with the services of an interpreter in a language of their choice and they both gave evidence with the assistance of the interpreter.
The Tribunal decision basically related to the Tribunal’s lack of satisfaction about the credibility of their claims. Credibility is very much a matter for the administrative decision maker (see Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham).[6]
[6] [2000] HCA 1; (2000) 168 ALR 407
The issue of the credibility of the applicants’ claims was the reason for the delegate’s refusal of their protection visas. The applicants cannot, therefore, claim that the Tribunal decision was made on a different basis or that they were in some way taken by surprise by the Tribunal’s findings.
There is no s 424A issue and I note that the Tribunal at the hearing offered the applicants an adjournment to consider and provide a written response to certain areas of concern which would appear to constitute a compliance with s 424AA of the Migration Act.
In short, I am not satisfied that there is any arguable case for jurisdictional error. In the absence of jurisdictional error, I find that the Tribunal decision is a privative clause decision as defined by

sub-s 474(2) of the Migration Act and it follows that there are no grounds for relief.
The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The Minister seeks costs in the sum of $2,500.00.

The applicants have been unsuccessful in their claim and there is no reason why a costs order should not be made in favour of the respondent Minister. The amount sought is $2,500.00 which is well within the scale provided by the Federal Magistrates Court Rules.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 10 October 2008