SZMFS v Minister for Immigration
[2008] FMCA 989
•10 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 989 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of the People's Republic of China claiming fear of persecution for reasons of his membership of Falun Gong – allegation of bias – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| Applicant: | SZMFS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1185 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 July 2008 |
| Date of Last Submission: | 10 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Kantaria |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1185 of 2008
| SZMFS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China. He asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal handed down a decision on 17th April 2008. In that decision the Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
In his application to the Court, which was filed on 12th May 2008, the Applicant asks for orders setting aside the Tribunal decision and remitting his matter to the Refugee Review Tribunal for consideration according to law.
I have explained to the Applicant that in order to make the orders that he seeks the Court would need to be satisfied that the Tribunal decision was affected by jurisdictional error. The Applicant sets out in his application five grounds of review:
i)There exist jurisdictional errors in the review proceedings of the Applicant's protection visa by RRT.
ii)The Tribunal applied the wrong test.
iii)The adviser made the Applicant protection visa application and wrote the statement for the applicant which may include misleading information that the applicant does not know.
iv)The Tribunal focused on irrelevant issues and ignored relevant material.
v)The Tribunal has breached s.424A.
Background
The background to this matter is that the Applicant arrived in Australia on 11th November 2007. On 20th November 2007 he applied for a Protection (Class XA) visa. With his application there was a typed statement. In that statement he claimed that in 1998 he learned to practice Falun Gong. When the Chinese government banned Falun Gong in 1999 he said that he was persecuted by the Chinese government.
The Applicant claimed to have been called to attend classes for brainwashing many times and was beaten by police. Early in 2007 he was found practising Falun Gong and the police detained him for five days. He claims they beat him and tortured him mentally and physically. He said he had to pay a lot of bribery money to get himself released.
A delegate of the Minister considered his application but found that the Applicant had made vague and unsubstantiated claims and had not provided any substantial information to suggest that he was a Falun Gong practitioner. The delegate expressed concerns about the Applicant's credibility and on 10th December 2007 refused the application. The Applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision.
Application to the Refugee Review Tribunal
The Tribunal received the Applicant's application for review on 28th December 2007 in its Sydney office. The Tribunal stamp shows that the application was delivered by hand. The application for review is very sparse in its contents. It gives the Applicant's name, date of birth, gender, country of birth, nationality and passport number. It provides his residential address, being a suburb of Sydney. It indicates he needs an interpreter in the language Mandarin. It gives a mailing address of 198/226 Elizabeth Street, Surry Hills, New South Wales 2010. That is an address that this Court sees regularly. The Applicant did not indicate that he had a migration agent and did not nominate anyone as his authorised recipient. The Applicant in his application did not provide any telephone number.
The Tribunal wrote to the Applicant on 28th December 2007 acknowledging receipt of his application. On 11th January 2008 the Tribunal wrote three letters to the Applicant. They were all registered letters and, according to a notation, they were all mailed on
14th January 2008. 11th January 2008 is a Friday and 14th January is a Monday. In other words, the letters were posted by registered mail on the working day after they were signed.
The first of those letters was an invitation under s.425 of the Migration Act to attend a hearing at 10:00am on 7th February 2008. The second of those letters was an “Invitation to Comment on/respond to Information in Writing” under the provisions of s.424A of the Migration Act. The third letter was an “Invitation to Provide Information in Writing under the Provisions of s.424 of the Migration Act”. It appears that those two letters were sent in the one envelope as they bear the same notation of a Registered Post Number, RP7658891. The other letter, the invitation to appear before the Tribunal, bears a different number.
The Applicant completed the Response to Hearing Invitation which accompanied the invitation under s.425 of the Act. The Tribunal's received stamp shows that the document was delivered by hand and received on 18th January 2008. There is no indication in the file in the Court Book that the Applicant replied to either of the other two letters or that they were returned unclaimed. The Applicant attended the hearing on 7th February 2008. He brought his Chinese passport with him and the Tribunal photocopied it. The Applicant gave evidence to the Tribunal at the hearing with the assistance of an interpreter in the Mandarin language.
The Tribunal’s Decision
The Tribunal signed its decision on 31st March 2008 and handed that decision down on 17th April 2008. A copy of the Tribunal decision record can be found in the Court Book at pages 74 through to 87. In the Court Book the Tribunal reviewed the Applicant's claims and evidence and considered his application for a protection visa that had been lodged on 20th November 2007. The Tribunal noted that it had written to the Applicant under the provisions of ss.424 and 424A of the Migration Act in the two letters dated 11th January 2008 but did not receive a response.
The Tribunal also set out a summary of the Applicant's evidence to the Tribunal and referred to Independent Country Information about Falun Gong, including its principal text, Zhuan Falun, and its five main exercises. The Tribunal noted that at the hearing it made this statement to the Applicant:
“At the end of the hearing I may put to you any information that I may consider would be the reasons for affirming the decision; that is, the Department's decision. If I do that, I must also explain the consequences of the information and I will invite you to comment on or respond to the information. You may respond to that information orally or in writing. You may also seek additional time to comment on or respond to the information. I will discuss this further at the end of the hearing.”[1]
[1] See Court Book at pages 77 – 78.
It appears clear that the Tribunal gave this advice to the Applicant in order to comply with the requirements of s.424AA of the Migration Act because the Tribunal set out in its decision record a number of matters which it put to the Applicant for his comment. It is clear that the Tribunal exercised significant doubts about the Applicant's claims, especially as the Applicant stated that he had not read the book Zhuan Falun by Master Li.
The Tribunal indicated that the Applicant stated that he did not know any of the Falun Gong exercises. His explanation was that Falun Gong was banned by the government so he did not practice. The Tribunal noted that the Applicant did not know that there are five Falun Gong exercises and said that he only went to the lessons.
The Tribunal noted that the Applicant stated that a Chinese student studying in Sydney listened to the Applicant's story and then typed the details on the application for a protection visa form. The Applicant stated that the student filled out the form according to what the Applicant told him.
The claims in the application are what the Applicant told the Tribunal were his claims. The Tribunal asked the Applicant why he was unable to respond to the two letters under ss.424 and 424A. The Tribunal noted this explanation:
“The applicant stated that he was unable to respond to the s.424 and s.424A letters because the whereabouts of his student friend were unknown to him. However, he indicated in response to a Tribunal question that he was able to apply to the Invitation to Hearing letter sent by the Tribunal because a workmate helped with it.”[2]
[2] See Court Book at page 78.
The Tribunal’s Findings and Reasons
The Tribunal set out its findings and reasons at pages 84 to 87 of the Court Book. The Tribunal accepted that the Applicant is a national of the People's Republic of China based on the Applicant's passport, amongst other things. The Tribunal noted that the Applicant's claims were that he had had some involvement with Falun Gong in China in 1998 before it was banned in 1999. The Tribunal noted the Applicant originally stated that he had learned the practice of Falun Gong, but later stated that he had attended twice. He claimed to have been brainwashed and to have been beaten by the police. He claimed that in 2007 he was found to practise Falun Gong and he was detained, beaten and tortured. He left China. He has not practised Falun Gong in Australia.
The Tribunal did not accept any of the Applicant's claims. The Tribunal noted significant deficiencies in the Applicant's evidence. This included not knowing the name of his daughter and only being able to give the year of her birth and not the day and the month. The Applicant gave an explanation that he had given her formal name in his application for a visa but knew her by another name. The Tribunal stated:
“Whilst the Tribunal might accept that there were two variations on the applicant's daughter's names, being a formal and a nickname, it finds that it is not credible that she has three names.”[3]
[3] See Court Book at page 84.
The Tribunal went on to find rather acidly:
“The Tribunal finds that a father would know the name of his daughter. As a result, the Tribunal does not accept the applicant's evidence. The Tribunal finds that the applicant is not a credible witness.”[4]
[4] See Court Book at page s 84 and 85.
The Tribunal then commented on the Applicant's lack of knowledge of the main text of Falun Gong and the fact that he did not demonstrate any of the five main Falun Gong exercises. The Tribunal relied on Independent Information about Falun Gong and found the Applicant was not a Falun Gong practitioner.
The Tribunal noted that the Applicant had not contacted any Falun Gong practitioners in Australia and found that the Applicant had no association with Falun Gong in the People's Republic of China and was not gaoled or brainwashed or beaten by the authorities for his association with Falun Gong.
The Tribunal noted the Applicant's claims that there were no human rights in the People's Republic of China, but found that that had not been made out. The Tribunal found the Applicant's evidence was inconsistent and rejected the Applicant's claims.
Application for Judicial Review
In his application for review the Applicant has set out five grounds to which I have already referred. In the particulars of his claims the Applicant claims that the Tribunal applied the wrong test when it determined that “the relevant facts of the individual case must be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision-maker to establish the veracity and merits of the claim.”
The Applicant claims that this was the wrong test and the Tribunal had misdirected itself and went on to say that ultimately the Tribunal must determine whether the Applicant has a well-founded fear of persecution for a Convention reason if returned to the People's Republic of China.
The Applicant claims: “the Tribunal must reach such conclusion even if the Tribunal is not satisfied as to the merits or the veracity of an applicant's claims and also in circumstances where an applicant is unable to provide any individual information in support of his or her claims.” It is a rather surprising test which requires the Tribunal to be satisfied that an applicant has a well-founded fear of persecution if the Tribunal is not satisfied about the merits or the veracity of the Applicant's claims.
The particulars refer to country information that described the difficulties that Falun Gong practitioners or sympathisers in China can face and submitted that the Tribunal needed to assess the Applicant's claims by reference to the risk of persecution that would arise to the Applicant if the claims might be true.
The particulars claim that the Tribunal misunderstood and failed to apply the correct test for well-founded test for persecution and failed to apply the correct test in order to be satisfied whether the Applicant had a well-founded fear of persecution.
The Applicant submitted that the Tribunal failed to consider his claim that he would be identified, interrogated, subject to torture, forced to confess and be subject to persecution on return to the People's Republic of China. The submission made this statement: “When asked if I returned to PRC, I stated that I would not practise Falun Gong as I know that it is dangerous, which proved that I was brainwashed and have a well-founded fear to go back to the PRC.” With respect, that seems to be a most surprising statement.
The Applicant's particulars F claim that:
“The Tribunal failed to confirm the applicant's receipt of mails regarding to invitation of providing or response to information in writing so that the applicant missed the chance to respond. In the case of no responding after sending the second mail, the Tribunal should fairly contact the applicant by phone to confirm the receipt of the mails, however, nothing was done.”
There is no obligation on the Tribunal to contact an applicant by telephone to see whether the Applicant received the letters that were sent by registered post.
In any event, the Applicant was not able to explain how the Tribunal could have contacted him by telephone as he had not provided to the Tribunal any telephone number whatsoever.
The Applicant attended Court today and told the Court that he did not receive the Tribunal's ss.424 or 424A letters. He claimed that he had an agent who assisted him with his application for review and that the address of 198/226 Elizabeth Street, Surry Hills was the agent's address. He went on to tell the Court that he had never been to the agent's address. Indeed, he was not able to tell the name of his agent. He said that he had been introduced to the agent by a friend and was eventually able to tell the Court that the agent's surname was Xu.
He said he referred to or addressed the person as "lawyer Xu".
The Applicant's explanation was that he had not been to the lawyer's office, the agent's office, but he received some mail sent to him at the agent's address by hand delivery.
The Applicant told the Court that from time to time the agent would contact him to say that there was mail available to him. So he would go to Lidcombe railway station where he would be given the letter. When asked if he had paid the agent any money he said that he paid this person $1,300.00 in cash for which he had not received any receipt. The Applicant seemed unaware of the fact that in Australia migration agents are required to be registered and if they are acting for a person would normally have their name and address and telephone number placed on the application for review to the Refugee Review Tribunal.
The Applicant told the Court that the Tribunal did not give him a chance to explain at the hearing about his claim to be a refugee.
He conceded that he attended the hearing and he had of course completed the Response to Hearing Invitation form that was sent out to him at his agent's address on the same day as the ss.424 and 424A letters that he did not receive. He agreed that he had the assistance of an interpreter in the Mandarin language, but was not able to indicate to the Court why the Tribunal did not give him a chance to explain his case at the hearing.
The solicitor for the Minister, Ms Kantaria, referred the Court to the Tribunal's decision record where the Tribunal noted at page 78 of the Court Book that the Applicant had told the Tribunal that a Chinese student studying in Sydney had listened to his story and assisted him with the protection visa. The Applicant was also reported as saying to the Tribunal that he was unable to respond to the ss.424 and 424A letters because he did not know where the student friend was.
The Tribunal noted that the Applicant said that he was able to reply to the invitation to hearing letter because he was helped by a workmate. The Tribunal told the Applicant that it had trouble accepting that he could not respond to the other two letters.
The Applicant then told the Court a different version from the version that he had given at the Tribunal. He said that it was not a student who assisted him. He said that the migration agent would not allow him to say that he had been assisted by an agent. He said that he had to say to the Tribunal that the documentation was translated for him by a student. The Applicant was not able to give any reason as to why the agent would not allow him to reveal that he had been assisted and had to give this unbelievable cover story.
Considerations
Dealing with the Applicant's claims, it is quite clear that the primary reason that the Tribunal did not accept the Applicant's claims was because it did not believe him. It made adverse findings to his credibility. I note that the delegate was not satisfied that the Applicant had established his claims to be a Falun Gong practitioner and was not satisfied about certain aspects of the Applicant's credibility. These were the issues that were the issues before the Tribunal. The Applicant can hardly complain to have been taken by surprise.
As to the Tribunal's finding that the Applicant was not a credible witness, it is quite well-accepted that matters of credibility are matters for the Tribunal. A credibility finding is a finding of fact. Provided that there is evidence upon which the Tribunal can make a finding of fact, then it is not open to the Court to interfere. The Applicant had given evidence to the Tribunal and the Tribunal made a finding about his credibility based on his evidence. In particular, the Applicant's admission that he had not read the book Zhuan Falun by Master Li and that he did not know and could not demonstrate any of the five main Falun Gong exercises would have had a significant impact on the credibility of the applicant's claim to be a Falun Gong practitioner.
The Tribunal also noted the Applicant's failure to contact a Falun Gong group in Sydney and made some rather damning findings about the Applicant's lack of knowledge and rather extraordinary explanations about the name of his daughter and the lack of knowledge of the daughter's date of birth other than the year. In my view, there was ample evidence upon which the Tribunal could be satisfied that the Applicant was not a credible witness.
Ground 1
Dealing with the Applicant's grounds, the first ground claims jurisdictional error with the Tribunal applying the wrong test, which does not appear to be supported by any particulars. In the absence of particulars, it is difficult to see what jurisdictional error the Applicant is referring to.
Ground 2
The second ground claims that the Tribunal applied the wrong test.
In my view, a reading of the Tribunal decision record shows that the Tribunal adequately identified the law that had to be applied and adequately understood the task in reviewing the decision of the delegate. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason because it was not satisfied with the Applicant's evidence. Particularly, it was not satisfied that he was a Falun Gong practitioner.
Ground 3
The third ground blames the agent or adviser for making the protection visa application and the accompanying statement and suggests that the adviser may have included misleading information that the Applicant did not know about. The Applicant has given two different versions of this application. He has now told the Court that the version that he told the Tribunal, that it was prepared by a Chinese student, is wrong and the version that he has told the Court, that it was prepared to him by an unknown adviser whom he knows only by his surname and has never been to his address and had all his personal dealings with him at Lidcombe railway station. It was this adviser to whom he paid $1,300.00 in cash for which he did not receive a receipt.
The Applicant claims the adviser may well have given wrong information in the documents that he prepared. In the light of the Applicant's explanation, this is hardly to be wondered at. It does not indicate any jurisdictional error on the part of the Refugee Review Tribunal.
Ground 4
The Applicant's fourth ground claims that the Tribunal focused on irrelevant issues and ignored relevant material. There are no particulars of that and no evidence of that. The Tribunal found that the Applicant would not face a real chance of persecution if he were to return to China because it was satisfied that he had no association with Falun Gong in China or in Australia. The Tribunal found that he was not a Falun Gong practitioner. The Tribunal also noted a vague claim that there were no human rights in the People's Republic of China, but was not satisfied that claim had been made out, explaining that by saying:
“That is, although the general claim has been made, the applicant has not presented any evidence as to how the general human rights situation in the PRC would affect him with respect to a Convention ground.”[5]
[5] See Court Book at page 85.
The Tribunal found that the Applicant did not have a fear of persecution for a Convention ground if he were to return to China. The Applicant's fourth ground has not been made out.
Ground 5
The fifth ground relates to an alleged breach of s.424A of the Migration Act. The Tribunal wrote to the Applicant a letter clearly under the provisions of s.424A of the Migration Act at the address that was given for correspondence in the Applicant's application for review. That letter does not appear to have been returned unclaimed and I have already found that the Tribunal was under no obligation whatsoever to telephone the Applicant to find out whether he had received the letter, even if the Applicant had provided a telephone number in his application for review, which he did not.
If the Tribunal's letter to the Applicant seeking his comments under s.424A of the Migration Act was not passed onto him by the agent by means of the curious method of letter delivery involving handing over correspondence at Lidcombe railway station that does not disclose any jurisdictional error on the part of the Refugee Review Tribunal. There is no breach of s.424A of the Migration Act.
The Applicant's fifth ground also fails.
Conclusion
I am mindful of the fact that the Applicant is not legally represented. In the proceedings in this Court he asked to be given assistance by a lawyer on the RRT Legal Advice Panel. He was referred to a barrister on the panel who has sent a report back to the Court indicating that she wrote to the Applicant on 18th June 2008 asking him to contact her but he did not; she received no response. She indicated that she telephoned the Applicant as recently as 9th July, but again received no response.
I have read through the Tribunal decision in order to ascertain whether any arguable case for jurisdictional error may be made out. I am satisfied that there is no breach of ss.424 or 424A or 425. The Tribunal wrote to the Applicant and invited him to a hearing. He got that letter and attended the hearing. He was provided with the services of an interpreter in the Mandarin language and gave evidence to the Tribunal. The issues at the hearing were the same issues that the delegate used and were set out in the delegate's decision to refuse him a protection visa. There is no failure to provide procedural fairness, no breach of s.425 of the Act.
I note that the Tribunal advised the Applicant under the provisions of s.424AA of a procedure that may be followed in the decision record at pages 77 and 78 of the Court Book and again after the Applicant's evidence where he was asked a number of questions the Tribunal records that it said this to him:
“The Tribunal asked if the applicant had anything else that he wished to say. He indicated that he did not. The Tribunal asked if he needed any more time in order to respond to the matters it had raised. He stated, "Not for now."[6]
[6] See Court Book at page 81
In my view, the Tribunal decision record shows that the Tribunal did make an effort to comply with the requirements of s.424AA of the Act, noting that the Applicant had not provided comments or a response to the letter that the Tribunal had sent under s.424A. In my view, that was an appropriate decision by the Tribunal Member and I am satisfied that the Tribunal complied with s.424AA of the Act.
I can see no jurisdictional error and in the absence of a jurisdictional error the Tribunal decision is a privative clause decision as defined by
sub-section 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 in court (see sub-section 474(1) of the Migration Act). It follows that as the decision is a privative clause decision the application must be dismissed.
I am of the view that this is an appropriate matter for an order for costs in favour of the First Respondent. The amount sought, $2,600.00, is a modest amount in the circumstances. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,600.00.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlet FM
Associate: V. Lee
Date: 21 July 2008
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