SZMIN v Minister for Immigration

[2009] FMCA 141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 141

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application to review decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – citizen of China claiming well founded fear of persecution on the ground of being a Falun Gong practitioner – no reviewable error.

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

Applicant: SZMIN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3266 of 2008

Judgment of: Scarlett FM

Hearing date: 23 February 2009

Date of Last Submission: 23 February 2009

Delivered at: Sydney

Delivered on: 23 February 2009

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3500 and I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3266 of 2008

SZMIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant is a citizen of China.  He asks the Court to review a decision of the Refugee Review Tribunal that affirmed a decision by a delegate of the Minister not to grant him a Protection (Class XA) Visa.  In particular, he asks the Court to issue writs of certiorari and mandamus.  He asks that the Tribunal decision be quashed and the Tribunal be compelled to rehear and re-determine the matter according to law.

2. It has been explained to the applicant that in order to make those orders the Court must be satisfied that the decision is affected by jurisdictional error. The applicant complains of jurisdictional error in two ways. First, he complains that the Tribunal committed a breach of s.424A of the Migration Act by failing to invite him to explain why he could not correctly answer the Tribunal's question regarding Falun Gong and Falun Gong practice.

3. Second, he claims that he had difficulty understanding the Tribunal's questions and was not able to answer some of them because he did not understand the questions because of some deficiency on the part of the interpreter at the hearing. 

4. The background to this matter is that the applicant arrived in Australia on 4 July 2007.  He applied on 16 August 2007 for a Protection (Class XA) Visa.  In a statement provided with his application the applicant claimed to have been a Falun Gong practitioner and Falun Gong member in China.

5. He said in his statement;

   I left China because the local Fuqing police and 610 officers are looking for Falun Dafa members.  I am afraid they might know my involvement with Falun Dafa organisation and would persecute me[1].

   [1] See Court Book at page 26

6. A delegate of the Minister refused his application for a visa on 24 October 2007.  The delegate considered independent country information about Falun Gong and Falun Gong practitioners in China.  However the delegate noted that the applicant's statements regarding his Falun Gong practice and involvement in Falun Gong activities were vague and lacking in substantiating detail.

7. The delegate noted that although the applicant claimed fear/harm by the Chinese government for engaging in Falun Gong practice he had provided no detail or evidence to substantiate his claim that he was a genuine Falun Gong practitioner in China.  The delegate made this finding;

   I do not accept that the applicant left the PRC in July 2007 owing to a fear of persecution on account of his being a Falun Gong practitioner[2]. 

   [2] See Court Book at page 35

8. After his application was refused the applicant sought a review of that decision from the Refugee Review Tribunal.  The Tribunal received his application on 26 November 2007 and invited him to attend a hearing on 23 January 2008.  The applicant attended the Tribunal hearing on that date and gave evidence.  However, the Tribunal affirmed the delegate's decision on 8 February 2008.  The applicant then commenced proceedings in this Court seeking judicial review of that decision.

9. On 3 September 2008 Raphael FM made orders by consent issuing writs of certiorari and mandamus and making an order for costs in the applicant's favour.  The matter was sent back to the Tribunal and the Tribunal wrote to the applicant inviting him to attend another hearing on 7 November 2008.  The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language.

10. The Tribunal signed its decision on 7 November 2008 and handed that decision down on 10 November 2008.  The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) Visa.  In its decision the Tribunal set out under claims and evidence the material considered by the delegate.  The Tribunal considered the evidence given to the first differently constituted Tribunal.  It also considered the evidence given to the second Tribunal hearing.  The Tribunal asked the applicant if he had any further information that he wished to provide but the applicant said that he did not.

11. The Tribunal took evidence from the applicant and then put matters to him that had been raised with him at the earlier Tribunal hearing.  The Tribunal said;

    The Tribunal reminded him that he had had the opportunity to address particular issues of concern to the Tribunal during the previous hearing and went through them again with him to enable him to add anything more he wished[3].

    [3] See Court Book at page 86

12. The Tribunal then set out those issues at paragraph 50 through to 56 and invited him to comment on those matters and the applicant did so comment.  The Tribunal's findings and reasons can be found at pages 87 through to 89 of the Court Book.  The Tribunal was satisfied that the applicant was a national of the People's Republic of China.  The Tribunal noted his claim to have been a Falun Gong practitioner in China and to be sought for arrest by PRC authorities for that reason.  The Tribunal went on to say;

    If these claims are true, on the basis of evidence contained in sources such as the various US Department of State country reports on human rights practices from 2000 to 2008 the Tribunal would be satisfied that he had a well-founded fear of persecution for a convention reason in China[4].

    [4] See Court Book at page 87

13. However, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner in China or that he was wanted by the Chinese authorities because of a perception they had that he was a practitioner.  The Tribunal then set out the reasons why it made those findings.  The Tribunal found;

    (1)That the applicant does not have a level of knowledge of Falun Gong practice consistent with having been a practitioner.

    (2)Despite having been in Australia for over 16 months the applicant had made no contact with Falun Gong practitioners in Australia and gave no cogent reasons for his failure to do so.

    (3)The Tribunal noted that there were changes in the applicant's evidence as to when he took up the practice of Falun Gong and this cast doubt the Tribunal said on the plausibility of his claim to have taken up Falun Gong practice at all in China.  The Tribunal expressed doubt as to whether there was in fact an arrest warrant against him issued by the Chinese authorities because he had not submitted any copy of that document and was not convinced by his explanation as to why he had not done so.

    (4)The Tribunal noted that the applicant was issued with a valid passport from the People's Republic of China in March 2007.  The Tribunal found;

    In light of the Tribunal's findings above, the Tribunal is satisfied that it was issued because he was not being sought for arrest as a Falun Gong practitioner by the PRC authorities[5]. 

    [5] See Court Book at page 88

14. The Tribunal did not accept that the applicant was wanted by the authorities in China for reasons relating to Falun Gong and was not satisfied that he had a well-founded fear of persecution within the meaning of the convention consequently the Tribunal affirmed the decision not to grant the applicant Protection (Class XA) Visa.

15. In his application filed with this Court the applicant claims a breach of s.424A of the Migration Act and the failure by the Tribunal to provide a competent interpreter to enable the applicant to give proper evidence at the hearing. The two grounds say;

    i)The RRT decision was affected by jurisdictional error in that the Tribunal failed to invite the applicant to comment on adverse information. The Tribunal breached s.424A of the Migration Act by failing to invite the applicant to explain why he could not correctly answer the Tribunal's questions regarding Falun Gong and Falun Gong practice. The applicant claims that he stopped practicing Falun Gong after arrival in Australia and therefore he has forgotten some key elements of Falun Gong. This, however, does not change the fact that he had practiced in China and therefore he would still be subject to the persecution by the Chinese government.

    ii)The applicant also claims that he had difficulty understanding the Tribunal's questions during the hearing.  He was unable to give answers to some questions because he did not understand the Tribunal's questions through the interpreter.

16. The applicant has not filed a written outline of submissions but attended Court today and made a brief oral address.  He also answered some questions directed to him from the Bench.  He claimed that he did practice Falun Gong in China and complained that the Tribunal did not believe him.

17. The solicitor for the Minister, Ms Palmer, has filed a written outline of submissions on 10 February 2009 which is a comprehensive document addressing both of the applicant's grounds and addressing the validity of the decision generally. As to the applicant's first ground of a breach of s.424A of the Migration Act Ms Palmer notes that the applicant's first ground effectively seeks to take issue with the facts or expresses dissatisfaction with the conclusions drawn by the Tribunal and submits that this essentially asked the Court to undertake a review of the merits of the Tribunal decision which is not a function that the Court can perform.

18. I am referred to the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259-272. It is submitted on behalf of the Minister that the breach of s.424A of the Migration Act is without foundation. The decision record of the first Tribunal shows that the Tribunal expressed its concerns to the applicant about his limited familiarity with Falun Gong and put certain particulars of information to the applicant. The Tribunal explained to the applicant this information was relevant because it could lead the Tribunal to disbelieve that he was a genuine Falun Gong practitioner.

19. The submission is made that the previously constituted Tribunal complied with the provisions of s.424AA(b)(i) of the Migration Act by putting certain information to him explaining how it was relevant, inviting him to respond orally, advising him that he may seek further time to respond and adjourn the review in order to allow him to do so. It is further submitted that the Tribunal, as presently constituted, it was entitled to refer to the earlier evidence before the Tribunal as previously constituted. The fact that the earlier Tribunal decision had been declared invalid did not mean that the applicant's hearing before the present Tribunal was in review. It was the same review remitted to the Tribunal, differently constituted, to determine according to law.

20. It was further put that there was no obligation on the Tribunal to put its concerns about the applicant's credibility to him under either s.424 or s.424AA because it did not constitute information for the purpose of engaging those sections. 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, et cetera. See VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 206 ALR 471 at 477 per Finn and Stone JJ cited with approval by a majority of the High Court in SZBYR v Minister for Immigration & Citizenship [2007] 235 ALR 609 at 616 [18].

21. It was further put that information about the applicant's familiarity with Falun Gong and the answers he gave to the Tribunal's questions arose from evidence that he gave at the hearings before both Tribunals and thus the Tribunal was not required to give the applicant the opportunity to comment on that information under s.424A or s.424AA because it was information which fell within the exception in s.424A(3)(b).

22. It was further submitted that if the applicant's ground asserts the Tribunal failed to ask him particular questions that is a ground that cannot succeed because it is for the applicant to make out his case before the Tribunal.

23. Turning to the second ground; it is submitted that the applicant has not provided any evidence such as transcripts to substantiate the bare assertion that there were problems with the translation provided by the interpreter at the hearing.  He has not shown that the standard of interpreting was so inadequate that he was prevented from giving evidence or that the errors made in interpretation at the hearing were material to the conclusion of the Tribunal and adverse to the applicant.  There was certainly no indication in the Tribunal's reasons for decision that the applicant had difficulty communicating with the Tribunal in responding to the Tribunal's questions.

24. In dealing with the second ground first it is clear that the only evidence about what happened at the Tribunal hearing comes from the Tribunal decision record.  There is nothing in the Tribunal decision record that indicates that the applicant did have any difficulty in understanding or answering the Tribunal's questions.  I note from the RRT hearing record that can be found at page 77 of the Court Book that the Tribunal provided an interpreter in the Mandarin language whose level was given as NAATI Level 3.  It is well known that NAATI Level 3 is an appropriate standard for interpretation in proceedings before a Tribunal or a Court.

25. The applicant, of course, has not provided any transcript of the hearing to show that there was any difficulty and when he told the Court during his oral submission that he had difficulty answering some questions because he could not understand them he was asked from the Bench as to whether he had informed the Tribunal that he had difficulty with understanding.  The applicant told the Court that he did not tell that to the Tribunal and in respect of any questions that he said he could not understand the applicant told the Court that he just did not answer them.

26. In my view there is no evidence that the fairness of the hearing before the Tribunal was compromised by any failing on the part of the interpreter and it certainly does not appear from the decision record that the Tribunal member had any inkling that the applicant was having trouble understanding as he told the Court that he was.  If the applicant had difficulty understanding the questions he should have made that clear to the Tribunal.  There is no evidence of any failure on the part of the interpreter and the second ground fails.

27. Turning to the first ground; the applicant alleges a breach of s.424A of the Migration Act. The information which the applicant complains that the Tribunal failed to invite him to comment on was the applicant's own evidence to the Tribunal either at the earlier hearing or the hearing which has led to the decision currently under review. That is information that is not subject to the operation of subsection 424A(1) because it is covered by the exception in subsection 424A(3)(b).

28. It may well be that the previous Tribunal had in any event taken the applicant through that material and in doing so complied with the requirements of s.424AA of the Migration Act. If that had in fact been necessary although it does not appear that it would have been necessary as the information concerned was given by the applicant himself. I note that the Tribunal as presently constituted in the decision under review made this finding;

    The Tribunal is satisfied that in relation to the following matters the procedure required by s.424AA of the Act was followed during the hearing of the Tribunal as first constituted[6]. 

    [6] See Court Book at page 87

29. In my view, with respect, the Tribunal in making that statement went beyond the power of the Tribunal to consider evidence given at an earlier Tribunal hearing.  It was certainly open to the Tribunal to consider evidence given at the first Tribunal hearing and it was certainly open to the Tribunal to note that the Tribunal had put certain information to the applicant and had given him the opportunity to reply to it and in fact had allowed an adjournment so that he may make submissions in reply.

30. However, in this case the Tribunal has gone one step further by making a finding that the previously constituted Tribunal had complied with the procedure required under s.424AA of the Act. In my view that is not an appropriate finding in arriving at a conclusion that a Tribunal has complied with the law in my view that is a finding that should be left to a Court conducting judicial review.

31. In any event, nothing turns upon this point.  First, the information referred to comes under the exception, as I said, in subsection 424A(3)(b).  Second, as solicitor for the Minister correctly pointed out, the Tribunal at the hearing in November took the applicant through those same points again and in fact that appears in the Tribunal decision record at paras.49 through to 56.

32. It is also clear that in bringing those matters to the applicant's attention the Tribunal dealt with the same issues of concern that had arisen in the delegate's decision where the delegate had raised concerns about the inadequacy of the details of the applicant's claim.  In this case the Tribunal went further and expressed doubt to the applicant that he had been in fact a Falun Gong practitioner in China due to his lack of knowledge and familiarity with Falun Gong history or practice.

33. In my view the Tribunal did not fall into jurisdictional error when it found that it was not satisfied that the applicant had been a Falun Gong practitioner in China or that he was wanted by the authorities in China because he was perceived to have been a practitioner.  In other words, no jurisdictional error has been demonstrated in either of the applicant's grounds in his application.

34. I am mindful of the fact that the applicant is not legally represented.  His application was prepared for him by someone else and indeed in respect of one of the grounds of it he appeared not to have any knowledge as to what that ground contained.  A reading of the Tribunal decision independently of the applicant's claims or the Minister's submissions does not disclose any arguable case of jurisdictional error for any other reason.

35. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Under s 474(1) orders in the nature of certiorari and mandamus are not available in respect of a privative clause decision. It follows then that the application must be dismissed and I dismiss the application.

1. There is an application for costs on behalf of the first respondent Minister. The amount sought is $3500 which is within the scale provided by the Federal Magistrates Court Rules. Indeed, it is a relatively modest sum. The applicant has been unsuccessful in his claim and it is appropriate to make an order for costs in favour of the successful respondent. The amount sought, $3500, is certainly appropriate, however the applicant has said that he does not have the funds to meet that because he does not have a work permit. That may well be the case. It is not a reason for not making an order for costs but it is an indication of a lack of income that should be taken into account when assessing time to pay.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date:  10 March 2009