SZMNI v Minister for Immigration
[2008] FMCA 1494
•31 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMNI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1494 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – 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); 91R; 91S; 424A(1); 424A(3)(a); 474; pt.8 div.2 |
| SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 60; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 |
| Applicant: | SZMNI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1817 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 October 2008 |
| Date of last submission: | 31 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr P. Reynolds |
| Solicitors for the Respondent: | Mr C. Thorpe, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1817 of 2008
| SZMNI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
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 28 May 2008 and handed down on 17 June 2008.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 2 November 2007 having departed legally from Fouzhou on a passport issued in her own name and a visitor’s visa issued on 9 October 2007.
On 13 December 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 6 March 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 4 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 28 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 July 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’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.
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 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.”
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
The Applicant provided a statement in support of her protection visa application in which she stated that he feared persecution by Chinese authorities for her practice of Falun Gong.
The Applicant’s claims to the Department are accurately summarised in the submissions of counsel for the First Respondent, Mr Reynolds, as follows:
“a) she left the PRC because the local police in Fuqing persecuted her for being a Falun Gong practitioner. If she returned to the PRC she would be detained and tortured if she practised Falun Gong;
b) she became involved with Falun Gong in 1997, but she stopped practicing two years later when it was banned by the Government. She later resumed her involvement in 2002 after she married her second husband (who was Taiwanese) and moved to Taiwan;
c) she was caught working illegally by the Taiwanese Immigration Authority and told to return to the PRC;
d) she took Falun Gong books back with her, which were detected by the PRC authorities upon her return. As a consequence, she was sent to a police station. Although she told the police that the books belonged to her husband, they did not believe her. They let her go, but visited her frequently and harassed her; and
e) as a consequence, she left the PRC and came to Australia.”
The Delegate’s decision
On 6 March 2008, 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 a legally enforceable right to stay in Taiwan and that there was no evidence before the Delegate to conclude that the Applicant would not be accorded effective protection if she was to return to Taiwan.
The Tribunal’s review and decision
On 4 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material, other than travel documents, in support of the review application. On 28 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 18 April 2008 the Tribunal wrote to the Applicant informing her 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 27 May 2008 to give oral evidence and present arguments. The Applicant attended that hearing with her son and gave evidence in which she expanded upon her written claims. The Applicant further claimed that she had mental health problems that “muddled” her thinking.
The Tribunal noted in its decision record that it discussed with the Applicant: her immigration status with regards Taiwan; her knowledge of Falun Gong; her practice of Falun Gong in China; and issues that may affect her credibility as a witness.
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.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“10. The Tribunal was not satisfied as to the Applicant’s general credibility. It accepted the expert evidence of Dr Benjamin Penny who stated that a genuine Falun Gong practitioner would know the 5 Falun Gong exercises, perform them comfortably, and be familiar with Zhuan Falun (being the central text). The Applicant, however, was unable to perform any of the exercises when requested to do so and had no apparent knowledge or understanding of Zhuan Falun. Further, although the Applicant identified the three moral tenants of Falun Gong, she did not provide any information that indicated that she applied them in her own life. The Tribunal therefore found that the Applicant was not a genuine Falun Gong practitioner;
11. The Tribunal rejected the Applicant’s claim that she had limited knowledge because she was suffering mental health problems, that she had limited education and that she was confused by virtue of the recent earthquake in the PRC. It found that the reason why she had limited knowledge and did not appear to know the exercises was because she was not a genuine Falun Gong practitioner and did not have a genuine interest in Falun Gong.
12. On the basis of the adverse credibility finding, the Tribunal rejected the entirety of her claims.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The Applicant confirmed that she relied on the grounds contained in an application filed on 15 July 2008.
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 invited the applicant to comment on adverse information. The Tribunal breached S424A of the Migration Act.
2. The Tribunal found the applicant had fabricated her claims to enhance her protection visa application. The applicant claims that her refugee claims are genuine and the Tribunal had made that finding on no reasonable ground.”
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 her application generally. The Applicant confirmed that she had filed no evidence or submissions in support of her application. The Applicant clearly did not know the contents of, or understand, the grounds of her application and had no meaningful or relevant submission to make in support of either of the grounds or in support of her application generally.
Ground 1
Ground 1 alleges that the Tribunal breached s.424A of the Act in that it failed to invite the Applicant to comment on adverse information.
A fair reading of the Tribunal’s decision makes clear that the Tribunal accurately summarised the Applicant’s written claims. There was no transcript of the hearing provided to the Court to suggest that the Tribunal’s decision record is not accurate. The Tribunal stated that at the hearing the Applicant “essentially repeated her claims relating to Falun Gong”.
A fair reading of the Tribunal’s decision makes clear that the Tribunal put to the Applicant independent information it had regarding Falun Gong practice that a genuine Falun Gong practitioner: would be able to perform with confidence the five Falun Gong exercises; have some understanding of the Falun Gong central text; and, be able to describe how the exercises apply the Falun Gong core moral tenets.
The Tribunal noted that it explored all these matters with the Applicant and, following its exchange with the Applicant, put to her that she did not appear to have “any real or meaningful information regarding Falun Gong”. The Tribunal noted that it put to her at the hearing that her lack of knowledge regarding Falun Gong and her lack of involvement in Falun Gong since arriving in Australia raised doubts as to her credibility.
The Tribunal noted the Applicant’s response that she suffered mental health problems because she had been targeted by authorities in China for being a Falun Gong practitioner and that her mental health had been affected since discovering that there had been an earthquake in China. When the Tribunal asked the Applicant if she was taking medication or receiving treatment for her mental health problems she told the Tribunal that she had not sought or received any treatment in Australia, although she was taking some medication she had brought with her from China.
The Tribunal had regard to and relied upon the independent evidence before it about the level of knowledge of a genuine Falun Gong practitioner. The Tribunal found that the Applicant’s failure to know any of the exercises and her limited knowledge of Falun Gong was because she did not have a genuine interest in Falun Gong and had not participated in Falun Gong activities. The Tribunal found that the Applicant had never been a Falun Gong practitioner and had fabricated all her claims and that she had done so in order to enhance her application for a protection visa.
The independent information on which the Tribunal relied was information not specifically about the Applicant but about a class of persons of which the Applicant claimed to be a member. In the circumstances, such information is excluded from the obligations of s.424A(1) of the Act, by reason of s.424A(3)(a) of the Act.
Otherwise, the information which formed part of the Tribunal’s reasons for affirming the decision under review was information provided by the Applicant to the Tribunal for the purposes of the review. Again, such information does not enliven the obligations of s.424A(1) of the Act. The Tribunal’s subjective appraisal of the Applicant’s evidence is reflective of the Tribunal’s thought processes and, again, does not constitute information for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 60 at [18]).
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, ground 1 is not made out.
Ground 2
The reference in ground 2 to the Tribunal’s finding that the Applicant had fabricated her claims to enhance her protection visa application appears to be a complaint about the Tribunal’s finding to that effect. However, as discussed above in these Reasons, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave. Otherwise, such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
In the circumstances, to the extent that ground 2 asserts that the Tribunal made that finding on no reasonable grounds, a fair reading of the Tribunal’s decision does not support such a contention, as is referred to above in these Reasons.
Accordingly, ground 2 is not made out.
Conclusion
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 at a hearing; identified independent information to which it had regard; explored that information with the Applicant at the hearing; and, put to the Applicant concerns it had arising from her evidence and the independent information before it. The Tribunal 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.
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.
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 proceeding before this Court is dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 31 October 2008
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