SZMPR v Minister for Immigration
[2008] FMCA 1616
•19 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMPR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1616 |
| 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 visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of her religion – credibility – where applicant claimed to have suffered an injury to the head in a fall – no reviewable error. |
| Migration Act 1958 (Cth), ss.36, 422B |
| SZLSZ v Minister for Immigration & Citizenship [2008] FMCA 378 WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZMPR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2039 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 November 2008 |
| Date of Last Submission: | 19 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Ms Nolan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2039 of 2008
| SZMPR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is applying to the Court for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of China, and she has applied for a Protection (Class XA) visa on the basis that she has a fear of persecution if she returns to China because she is a Falun Gong practitioner. The Tribunal however, in a decision handed down on
10th July 2008affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) visa.
The applicant takes issue with that decision, and in an application filed on 7th August 2008 asks the Court to issue:
i)a writ of certiorari quashing the Tribunal decision;
ii)a writ of mandamus compelling the Tribunal to rehear and re-determine the matter according to law.
The applicant has been advised today that in order for the Court to make those orders it must be satisfied that the Tribunal decision was affected by jurisdictional error. The applicant claims that the Tribunal decision was affected by the jurisdictional error, in that the Tribunal failed to give her an opportunity to provide further evidence despite her request to do so during the hearing.
Background
The background to this matter is that the applicant arrived in Australia on 17th January 2008. She applied for a Protection (Class XA) visa claiming to have a well founded fear of persecution on the basis of being a Falun Gong practitioner. The delegate of the Minister refused her application for a visa on 28th March 2008. A copy of the Protection (Class XA) visa decision record is annexed to the affidavit of Laura Frances Weston, which was filed on 21st October 2008.
The delegate found at page 5 of the decision record:
The applicant’s claims are scant and unsubstantiated.
The applicant provides no evidence that she was a Falun Gong practitioner who has suffered persecution in the People’s Republic of China (PRC). The absence of verifiable detail leads me to believe the applicant’s situation is not as claimed.
The delegate considered independent country information about religious freedom in China and about the difficulty or otherwise that people have who are not given approval to leave China if they have come under adverse notice from the authorities. When the delegate refused the application for a visa on 28th March 2008 the applicant then applied to the Refugee Review Tribunal for a review of that decision.
Application to the Refugee Review Tribunal
The Tribunal received her application at its Sydney office on
29th April 2008. The applicant had obtained the services of a migration agent, and the applicant’s address for correspondence was care of her migration agent. The Tribunal wrote to the applicant care of the migration agent on 15th May 2008, inviting the applicant to attend a hearing on 13th June. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language, which was the language that the applicant had sought in her response to hearing invitation.
The applicant produced her passport issued by the People’s Republic of China and the Tribunal took a photocopy of it. However, during the hearing the applicant told the Tribunal member that she was not feeling well. She claimed to have suffered from a fall three weeks before and was having difficulty answering questions. The Tribunal adjourned the hearing to 27th June 2008. The Tribunal provided the applicant with a notice of adjourned hearing on 13th June 2008, which relevantly said as follows:
At the hearing held on 13 June 2008 you told the Presiding Member that you were not feeling well due to a fall you had about 3 weeks ago and that you were having some difficulty answering questions. In these circumstances she decided to adjourn the hearing to another date so that you will be well enough to participate in the adjourned hearing. If you wish to submit medical evidence as to the nature of any injuries you have sustained you should do so before the date of the adjourned hearing.[1]
[1] See Court Book page 21.
The notice advised the applicant that the adjourned hearing would commence at 10:00 am on 27th June. A case note by a Tribunal officer indicates that the officer gave that letter to the applicant by hand at the Tribunal. A Tribunal officer who speaks Mandarin then went through the contents of the letter with the applicant. The case note goes on to say:
The RA [meaning the review applicant] explained that she would be writing to the Tribunal to request a postponement of the adjourned hearing due to her injury. She explained that she would get a doctor’s certificate.[2]
[2] See Court Book page 23.
The applicant attended the adjourned hearing on the morning of
27th June 2008. The Tribunal provided the services of an interpreter in the Mandarin language. The applicant gave evidence and did so with the assistance of the interpreter. After the hearing on 30th June 2008, the applicant’s migration agent faxed a document to the Tribunal.
The faxed memorandum said relevantly:
Please find enclosed a receipt from the Kang Fu Chinese Herbal Medicine & Acupuncture Clinic dated 23 May 2008.
The applicant referred to the receipt as a “medical certificate” but apparently it is not. She said she had got Medicare card so she did not go to see a GP.[3]
[3] See Court Book page 28.
A copy of the document which does indeed appear to be a receipt for the amount of $50.00 for acupuncture can be found at page 29 of the Court Book.
The Tribunal wrote to the applicant on 1st July advising her that the decision would be handed down on 10th July 2008. The Tribunal signed its decision on 30th June 2008 and the decision was indeed handed down on 10th July 2008, affirming the decision not to grant the applicant a Protection (Class XA) visa. In the Tribunal decision record, which can be found at pages 35 through to 45 of the Court Book, the Tribunal set out under the heading Claims and Evidence details of the applicant’s claim for a protection visa.
It also set out a summary of the evidence given at the hearing on
13th June 2008, and a summary of the evidence given at the hearing on 27th June. The Tribunal noted the applicant’s claim from the statement accompanying her application for a protection visa that the applicant claimed that she had always had health problems and had met some Falun Gong practitioners in a park in 1997, and had joined Falun Gong practice. After six months the applicant claimed that her health had improved.
After Falun Gong was announced as an evil cult in 1999, many practitioners were detained, but the applicant did not give up practising, although she practised at home rather than in public. Eventually the applicant claimed that she came under adverse notice from the local PSB, although escaped more serious attention because of a friend who was a policeman.
The Tribunal’s summary of the applicant’s evidence at the hearing of 13th June 2008 sets out details of preliminary matters that were covered and some questions that the Tribunal asked. At paragraph 33, the Tribunal said:
She then told me that she was not feeling well and that she had hit her head in the bath a few weeks ago. I asked her whether she had seen a doctor and she stated that she had but she had given her Medicare card to someone else so she could not pay for an x ray. At this point I told her that I would adjourn the hearing to another date when she felt better able to answer questions during the hearing. I advised her that if she was still feeling unwell before the next occasion she should seek medical advice and provide a copy of that advice to the Tribunal.[4]
[4] See Court Book page 39.
The Tribunal then went on to set out the evidence of the hearing on
27th June 2008. The Tribunal member asked the applicant a number of questions about her knowledge and practice of Falun Gong, and noted the applicant’s claim that the applicant could not tell the Tribunal the name of the most important book read by all sincere Falun Gong practitioners:
She told me she could not tell me because she was too nervous and then told the interpreter to tell me the name of the book. I told her if she was nervous she could write down the name of the book on a piece of paper but she told me she could not do that.[5]
[5] See Court Book pages 40 to 41.
The Tribunal then went on to say at paragraph 46 of the decision:
I put it to her that if she was not able to answer the question I might take the view that she could not answer it because she was not a genuine Falun Gong practitioner. She then told me that if the Tribunal gave her further time she could provide it with additional documents or photographs to prove her claim. I asked her if she had those documents. At first she claimed she had those documents however when I asked her to provide them within the next few days she said that she could not do that because she put some photographs in a box and had given them to someone who had gone to China and was not coming back.[6]
[6] See Court Book page 41.
The Tribunal noted that the applicant then asked for further time to produce other documents and asked for another hearing. The Tribunal however was not prepared to provide that further time, and gave these reasons:
I told her that she had applied for review in April 2008, and the first hearing had been adjourned to today’s date. I told her that I found it difficult to accept that she did not bring all necessary documents with her to the hearing in view of the history of this matter. I told her that I would not give an extension of time to file further documents however I would consider any documents that she provided before the handing down of the decision.[7]
[7] See Court Book page 41.
The Tribunal then set out the applicant’s reply:
She told me she was very nervous and could not remember anything and I reminded her that I had told her that if she wished to rely on medical evidence she should provide such evidence before the adjourned hearing. She stated that she could not remember the name of the book because she was nervous but that she had practiced Falun Gong throughout her life. I asked her to describe the contents of the book but if [sic] she could not remember the name. She told me she was too nervous.[8]
[8] See Court Book page 41.
The Tribunal asked the applicant further questions, but again the applicant asked for another hearing in order to provide more details. However, the Tribunal again rejected that demand and gave these reasons:
I told her that I would not be extending time or listing another hearing but she could submit further material at any time before my decision was handed down. I explained that I considered she had sufficient time to provide those documents already in existence and further she had not identified the documents (other than photographs) she wished to provide to support her claims.
She then said that she had given a medical certificate to her lawyer and that that was dated 23 May 2008. I told her I would make further enquiries about the certificate.[9]
[9] See Court Book page 42.
The Tribunal’s findings and Reasons
The Tribunal’s findings and reasons are set out at pages 42 through to 44 of the Court Book. The Tribunal noted the applicant’s claim to fear persecution from Chinese government authorities because she had been a Falun Gong practitioner in China. The Tribunal accepted that the applicant is a citizen of the People’s Republic of China, but did not accept her claims. The Tribunal made comprehensive findings rejecting the applicant’s claim on a credibility basis. The Tribunal said this:
I did not find the applicant to be a credible and honest witness. I considered that the evidence she gave regarding Falun Gong practice was fabricated to support her claims for refugee status.[10]
[10] See Court Book page 43.
The Tribunal then set out reasons why the Tribunal did not consider the applicant to be a credible and honest witness. The Tribunal noted the applicant’s inability to give evidence about her knowledge of Falun Gong, and found that that knowledge was not consistent with a practitioner of over 10 years’ standing. The Tribunal noted the applicant’s claim to be nervous, but did not consider that nervousness would have affected the applicant to the extent that she was unable to describe the basis for practice and belief.
The Tribunal also noted that throughout the hearing the applicant kept asking the interpreter to supply answers, or elaborate on answers given. The Tribunal considered that the applicant was not able to answer the questions because her claims of Falun Gong practice were fabricated, and she did not have the knowledge gained through her own personal experience to be able to answer the questions asked. Because of that rejection of the basic tenet of the applicant’s claim the Tribunal did not accept the claims that flowed from that, namely that her home had been inspected, she’d been questioned by the police, or had her passport confiscated.
The Tribunal noted that the applicant was able to obtain a passport and leave China without restriction, which the Tribunal considered that it showed that she was of no adverse interest to the Chinese authorities. Because the Tribunal did not accept that the applicant is a Falun Gong practitioner it did not accept her evidence that she had practised in Australia. The Tribunal noted that the applicant has a daughter currently in Australia and made this finding:
I consider that the applicant has come to Australia to give parental support to her daughter who is an 18 year old student studying English language. Whilst it is understandable that she wishes to remain with her daughter I do not accept that she meets the Convention definition of a refugee.[11]
[11] See Court Book page 44.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees convention, and did not meet the criteria in subsection 36(2)(a) of the Migration Act.
Application for Judicial Review
The applicant in her application that was filed on 7th August 2008 claims that this failure by the Tribunal to give her an opportunity to provide further evidence is a jurisdictional error. The particulars of that claim are as follows:
During the hearing on 27 June 2008, the applicant asked for further time to produce other documents to support her claimed Falun Gong practice in Australia and the Tribunal agreed to give her such opportunity. However, on 1 July 2008, only 5 days after the hearing, the Tribunal wrote to the applicant advising that a decision had been made and would be handed down on 10 July 2008. The applicant claims that she was not given enough time to submit further evidence.
On a point of detail, the particulars say:
The applicant claims that she was given enough time to submit further evidence.
I established with the applicant at the hearing today that the word “not” had indeed been left out, and it was the basis of her claim that she was not given enough time to submit that further evidence. The applicant did not file a written outline of submissions, but attended Court and made oral submissions with the assistance of an interpreter in the Mandarin language. She asked the Court to order that she be given a further Tribunal hearing, and she claimed that she had not been given the opportunity to make further submissions and said that she had not recovered from the effect of her injury sustained on 23rd May.
The applicant told the Court that not only was she unwell at the Tribunal hearing on 13th June, but when she attended the adjourned hearing on 27th June, she was still suffering the after effects of her injuries where she had fallen over and hit her head. She claimed that as a result of this injury her mind was not clear, and her speech was confusing so that the member did not understand what she was saying. The applicant told the Court that at the hearing on 27th June she did not tell the Tribunal member that she was not feeling well. She said that she went to the doctor who asked her to have an X-ray, but she would have to wait for a year in order to have an X-ray because she does not have a Medicare card.
She told the Court that when she has a headache she has to stay in bed for one or two days. She reiterated her claim that she was confused at the Refugee Review Tribunal. The applicant in her submissions in reply told the Court that even at the date of the hearing she had not recovered totally from her head problem, and certainly was not able to explain herself properly at the Tribunal. She told the Court that she still suffers from confusion, and on occasions has not even been able to remember the location of her own home, and sometimes she will travel on a bus and will get out at the wrong bus stop.
She submitted that in the absence of a transcript the Court could only be assisted by the evidence that appeared on the face of the Tribunal’s decision. She further submitted that what the applicant claims was in direct contradiction to what the Tribunal records that it said to the applicant at the hearing. Further, it was put that the Tribunal is under no obligation to grant requests for further time to provide evidence, and in the absence of any express power to extend time for putting on further evidence, there was no question which would enliven a consideration of the exercise of that duty under s.422B(3), and referred the Court to the decision in SZLSZ v Minister for Immigration & Citizenship,[12] which is a decision of Emmett FM, delivered on 1st April 2008.
[12] [2008] FMCA 378
That decision considered the effect of subsection 422B(3), and it is a subsection that says that in applying this division the Tribunal must act in a way that is fair and just.The Minister also refers the Court to the decision in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs.[13]
[13] [2004] FCA 106 at [42] to [44]
The applicant’s claim was that she was not given a further adjournment. She claims that she was not given consideration for the fact that she was still suffering from the after effects of injuries, and she claims that the Tribunal on the one hand agreed to allow her more time but then reneged on that agreement by writing to her saying that the decision was going to be handed down on 10th July.
The first point to be made is that at the original hearing on 13th June the applicant told the Tribunal that she was feeling unwell, and the Tribunal decided of the Tribunal’s own motion not to proceed with the hearing, but to adjourn it for a fortnight. The Tribunal advised the applicant about producing a medical certificate and asked that that medical certificate be provided before the adjourned hearing. That did not happen. It was not until 30th June, after the second hearing that the applicant’s migration agent forwarded to the Tribunal the document that the applicant had described as a medical certificate.
As the migration agent pointed out, it clearly was not a medical certificate, it was a receipt for acupuncture. What that document showed was that the applicant had obtained treatment on 23rd May.
It does not prove any claim that the applicant had fallen, that she had hit her head, that she had trouble thinking clearly, or that she had trouble with memory. The applicant has not produced any medical evidence since then. She has provided no evidence to this Court today, whether in the form of a medical certificate or in an affidavit, or in oral evidence which would allow the Court to find that the applicant was still suffering from any after effects of the any injury, at the hearing on 27th June.
True it is that the applicant asked for a further adjournment and asked for time to provide further documents. But the Tribunal set out its reasons as to why it would not grant a further hearing, or provide any additional time to make further documentary evidence available. The basis of that finding was that the Tribunal considered that the applicant already had plenty of time to produce this evidence. In any event, the Tribunal did not shut the door completely on the applicant’s request to be able to provide further documents or make further submissions.
The Tribunal said:
I told her that I would not be extending time or listing another hearing but she could submit further material at any time before my decision was handed down.[14]
[14] See Court Book page 42.
The applicant had from 27th June until 9th July 2008 to provide any further material. It is well known that the Tribunal has the power to recall a decision after it is signed and before the decision is handed down. The applicant was at all times represented by a registered migration agent. The migration agent would have known, or ought to have known, that the Tribunal has the power to consider post hearing submissions, and if the Tribunal considers it appropriate, recall a decision at any time before that decision is handed down, and not only consider the further submissions, but if appropriate, alter the decision.
The applicant did not make any further submissions. The applicant did not provide any further documents. She had the opportunity to do so, the Tribunal made it clear to her that she had the opportunity to do so, and her migration agent would have known or should have known, that the applicant was able to do so, but she did not submit further material in that time. It is not unreasonable for the Tribunal to refuse to schedule a third hearing in the circumstances. It is not unreasonable for the Tribunal to refuse to allow a specified period of time other than the time it takes to write the decision and advise the applicant of the decision being handed down.
It is certainly not a jurisdictional error for the Tribunal to refuse to do so. It is noteworthy that the Tribunal decision record does not indicate that the applicant complained of illness or feeling unwell at the second hearing and the applicant has confirmed in Court today that she did not inform the Tribunal member of any further illness affecting her at the second hearing. She complained of being nervous, but it is not unusual for applicants at a hearing of the Refugee Review Tribunal to be nervous. That is something that the Tribunal is well experienced with.
The Tribunal decision is based on its credibility findings. The Tribunal made a comprehensive rejection of the credibility of the basic issue of the applicant’s claim that she was a Falun Gong practitioner.
The Tribunal did not believe that she had been a Falun Gong practitioner in China, and consequently did not accept that she had practised Falun Gong in Australia. Because the Tribunal did not believe that the applicant was a Falun Gong practitioner in China, it did not accept that she had come under adverse notice from the authorities on the basis of practising Falun Gong.
The Tribunal also took into account the applicant’s ability to obtain a passport and leave China lawfully. The applicant at no time made any claim to the Tribunal that there was any other Convention related reason for fearing persecution if she were to return to China. It is well established that credibility findings are findings of fact. They are matters for the administrative decision maker, in this case the Refugee Review Tribunal. I am satisfied that the adverse findings of credibility made by the Tribunal were open to the Tribunal on the evidence before it.
The Tribunal had the opportunity to hear from the applicant on two occasions, a fortnight apart, and the Tribunal had ample opportunity to form a view as to the credibility or otherwise of the applicant’s claims. This is a matter for the Tribunal (see Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham).[15] I am satisfied that no jurisdictional error appears in the Tribunal decision. The applicant has not made out her case for jurisdictional error, and an independent reading of the Tribunal decision record, and the supporting documents in the Court Book and in the affidavit of Ms Weston of
21st October, do not indicate to me any arguable case for jurisdictional error.
[15] (2000) 168 ALR 407
If there is no jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act.
A privative clause decision is final and conclusive, it is not subject to challenge or review or being set aside in any Court, and it is not subject to relief in the nature of certiorari or mandamus as the applicant claims. It follows therefore that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in her claim, and it is appropriate to make an order for costs in favour of the Minister. The amount sought is the amount allowed by this Court to the scale and the Court rules of $5,000.00. I note Counsel has been briefed, and that figure is obviously inclusive of Counsel’s fees. I am satisfied that $5,000.00 is an appropriate figure.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 28 November 2008
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