SZMKZ v Minister for Immigration

[2008] FMCA 1373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1373

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all claims made by the Applicant – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(2); 91R; 91S; 424A; 424A(1); 424A(3)(b); 474; pt.8 div.2

Lin v Minister for Immigration and Multicultural Affairs [1999] FCA 573
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZMKZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1592 of 2008

Judgment of: Emmett FM

Hearing date: 1 October 2008

Date of last submission: 1 October 2008

Delivered at: Sydney

Delivered on: 1 October 2008

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Counsel for the Respondent: Ms V. McWilliam

Solicitors for the Respondent: Mr B. O’Brien, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1592 of 2008

SZMKZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. 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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 May 2008 and handed down on 27 May 2008. 

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and previously to have worked as a logistics manager in a transportation business in China (“the Applicant”).

3. The Applicant arrived in Australia on 22 October 2007 having departed legally from Hong Kong International Airport on a passport issued in his own name and a temporary business visa issued on 17 October 2007.

4. On 1 November 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. On 21 December 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

6. On 21 January 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. 

7. On 6 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

8. On 20 June 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. 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.

2. 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.

3. Australia has protection obligations to a refugee on Australian territory. 

4. 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 political 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.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities for his alleged involvement in the transportation of banned religious materials while working for a transportation company.  The Applicant claimed he was accused incorrectly of being an underground religious organiser, had been released on bail guaranteed by his employer and would face more than seven years imprisonment if he returned to China. 

The Delegate’s decision

1. On 21 December 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).  The Delegate found that the Applicant had been unable to substantiate his claims and that his claimed fear of persecution was not well-founded. 

2. On 21 January 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material other than his travel documents and oral evidence at the hearing in support of the review application. On 6 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

The Tribunal’s review and decision

1. On 6 February 2008 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone.  The letter invited the Applicant to attend a hearing on 18 March 2008 to give oral evidence and present arguments.  The Applicant attended that hearing and gave oral evidence. 

2. On 25 March 2008 the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.  The Tribunal noted in its decision record that it received no response to its letter of 25 March 2008. 

3. On 18 March 2008, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon his written claims and made a further claim of having breached China’s one-child policy by failing to pay a fine for the second child. 

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources. 

5. The Tribunal found the Applicant was not a witness of truth.

6. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:

   “4. The Tribunal found that the applicant was not a credible witness, on the basis that his evidence was inconsistent and evasive.  In particular (CB 111-112):

   a) The applicant said that he left his employment in March 2007, but the information provided in support of his business visa application stated that he was still working at the company in September 2007.

   b) The applicant could not explain an invitation to him and Mr Mai to attend a concert and business activities in Australia, which had been submitted in support of his business visa application.

   c) Passenger flight records indicated that the applicant flew to Australia with Mr Mai.

   d) The applicant referred to the illegal books as ‘opponent CCP magazines’ in his protection visa application, but stated that they were Falun Gong books at the hearing.

   e) The applicant stated he had been charged with bribery and for being an underground church organizer in his protection visa application, but did not make that claim at the hearing.

   f) The Tribunal did not accept that the applicant would have transported Falun Gong books from bookshop to bookshop when Falun Gong is banned in China and its members are persecuted.

   g) The applicant claimed that he was investigated once he left the country, yet the books were discovered in March 2007.

   5. The Tribunal also considered a claim based on the applicant having a second child within six years without paying a fine.  It found that the applicant’s evidence was vague and that country information indicated that the laws relating to population control apply generally and are not selectively enforced (CB 112).”

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant elected to participate in the NSW RRT Legal Advice Scheme, however, did not arrange a meeting with the advisor although he confirmed that he had been contacted by a Chinese interpreter. A letter had been sent to the Applicant at the address identified by him in his application for sending mail giving him the name and contact details of the panel advisor. The Applicant said he did not receive that letter. The Applicant confirmed to the Court that he took no other step or made any further enquiry about participating in the scheme. The First Respondent submitted that, in the circumstances, the Applicant has been given a proper opportunity to participate in the scheme. I accept the submission of counsel for the First Respondent.

2. The grounds of the application are expressed to be as follows:

   “1. 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 S424A of the Migration Act.

   2. The RRT decision was affected by jurisdictional error in that the Tribunal failed to consider the applicant’s Falun Gong involvement in China and his family’s breach of one-child policy.”

3. Neither of the grounds was supported by particulars, evidence or written or oral submissions. 

4. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application. The Applicant made no relevant or meaningful submission in support of his application, other than to reassert his claim of having breached the one-child policy and having been given an arrest warrant. The Applicant also said that his family was very poor and he was fearful to return to China.

5. The Court explained to the Applicant that the Court had no power to interfere with the Tribunal’s decision unless it was satisfied that the Tribunal’s decision was affected by a legal mistake. The Court told the Applicant that disagreement with the findings and conclusions of the Tribunal alone rarely demonstrated a legal mistake. The Court asked the Applicant if there were any claims that he had made to the Tribunal which the Tribunal had failed to consider, including those referred to in Ground 2. The Court also asked the Applicant what was the adverse information which Ground 1 alleged the Tribunal had failed to invite the Applicant to comment upon. The Applicant declined to make any further oral submissions.

6. As referred to above, Ground 1 is not supported by any further particulars, nor did the Applicant make any submission to the Court in relation to this ground. 

7. At the heart of the Tribunal’s affirming the decision under review was its adverse credibility findings against the Applicant and its finding that his evidence was “inconsistent and evasive”. A fair reading of the Tribunal’s decision makes clear that the Tribunal identified at the hearing the matters of concern it had about the Applicant’s evidence, explored its concerns with the Applicant and noted the Applicant’s responses.

8. The Tribunal found the Applicant’s evidence about investigation of him by authorities to be “vague”.  The Tribunal rejected the Applicant’s claims of having been involved in the illegal transportation of Falun Gong books in China, going into hiding and being investigated by authorities.  The Tribunal did not accept as genuine the Applicant’s alleged fear of investigation or arrest if he returned to China.  

9. The Tribunal found the Applicant’s evidence of having failed to pay a fine for having breached the one-child policy in China was “vague” and that any alleged fear of persecution that the Applicant may have for that reason was not well-founded having regard to independent country information before it that such a law was not discriminatory. In reaching that conclusion the Tribunal referred to Lin v Minister for Immigration and Multicultural Affairs [1999] FCA 573 at [20] per Emmett J where His Honour stated as follows:

   “Punishment of a non-discriminatory kind for contravention of a law of general application will not ordinarily constitute persecution.  The Tribunal considered that the only thing that sets the applicant and his wife apart from the rest of the Chinese community is their failure to comply with the law.  That in itself does not make them members of a particular social group for the purposes of the Convention and none of the other Convention reasons would appear to be relevant.”

10. Further, the Tribunal wrote to the Applicant on 25 March 2008 inviting the Applicant to comment on information that it considered may be part of the reason for affirming the decision under review.  As stated above in these Reasons, the Applicant did not respond to the Tribunal’s letter. 

11. In the circumstances, the adverse findings made by the Tribunal were open to it on the evidence and material before it for the reasons it gave.  Adverse credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]).

12. The Tribunal did not have regard to any information in its reasons for affirming the decision under review in breach of s.424A of the Act. The Tribunal’s regard to the independent country information in relation to China’s laws relating to population control was not information that enlivened the obligation of s.424A(1) of the Act, by reason of s.424A(3)(a) of the Act.

13. Ground 2 of the Application alleges that the Tribunal failed to consider the Applicant’s Falun Gong involvement in China and his breach of the one-child policy by failing to pay a fine in respect of his second child. As is clear from these Reasons above, the Tribunal considered the Applicant’s claims and was not satisfied that they were made out. As referred to above in these Reasons, those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.

14. A fair reading of the Tribunal’s decision makes clear that the Tribunal considered all the claims made by the Applicant, both in writing and at the hearing. In circumstances where the Tribunal was not satisfied that the Applicant met the statutory criteria for being a refugee, s.65(2) of the Act mandates that the Tribunal must refuse the Applicant a protection visa.

15. Otherwise, a fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it.  Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons.  A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.

Conclusion

1. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

2. 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.

3. The proceeding before this Court is dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  1 October 2008