SZMRA v Minister for Immigration
[2008] FMCA 1570
•10 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMRA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1570 |
| 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 to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his political opinion and religion – no reviewable error. |
| Migration Act 1958, ss.91R(3), 424A, 474(1), 474(2) |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZLGB v Minister for Immigration & Anor [2008] FMCA 332 |
| Applicant: | SZMRA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2163 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 November 2008 |
| Date of Last Submission: | 10 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Mr Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2163 of 2008
| SZMRA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of the People's Republic of China. He has applied to the Court for judicial review of a decision of the Refugee Review Tribunal that was handed down on 24th July 2008.
The Tribunal affirmed the decision not to grant him a Protection (Class XA) visa. The applicant now asks the Court to issue:
a)A Writ of Certiorari quashing the decision of the Refugee Review Tribunal;
b)A Writ of Mandamus requiring the Tribunal to hear and determine the applicant's application for a visa according to law; and
c)A Writ of Prohibition directed to the Minister to prevent any action being taken in reliance upon the Tribunal decision.
The applicant sets out two grounds for review on which he relies. First, he claims that the Tribunal failed to consider the fact that he has been practising Falun Gong in Australia and his activities here in this country may cause further persecution to him on his return to China. Second, he claims that the Tribunal failed to notify him in writing as to the reason or part of the reasons for affirming the decision and therefore failed to comply with s.424A of the Migration Act. He relies on the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs.[1]
[1] [2005] HCA 24.
The background to this matter is that the applicant arrived in Australia on 23rd December 2006. He came as a stowaway aboard a ship.
He claims that a people smuggler had arranged for him to travel in this way and he spent some 12 days concealed aboard the ship.
He therefore left China illegally and without a passport. He applied for a Protection (Class XA) visa on 30th January 2007. In a statement which he provided with his application for a visa, he claimed to have been a Falun Gong practitioner and to have read a book called, "Nine Commentaries." As a result he suffered persecution from the Chinese Communist Party and also from the Public Security Bureau.
He claimed in his statement that he was forced to close down his business and lost his human rights. He claimed that he suffered such difficulties that he paid 200,000 Yuan to a people smuggler to get him to Australia. A copy of his statement can be found in the Court Book at pages 27 and 28.
A delegate of the Minister refused his application for a visa on
15th March 2007. In the delegate's reasons the delegate said:
I consider that the claims provided by the applicant are sparse, lacking in detail and coherency and quite vague in relation to his reasons for fearing harm. The applicant has provided very little information to explain what influenced him to develop an interest in Falun Gong philosophy and to take up Falun Gong exercises.[2]
[2] See Court Book page 38.
The delegate went on to find:
The applicant has provided no information that would indicate that he has ever had even a basic interest in Falun Gong or that he has engaged in Falun Gong exercises for any reason including associated health benefits. The applicant has not satisfied me that he would be at risk as a Falun Gong practitioner if returned to the PRC.[3]
[3] See Court Book page 39.
The delegate refused the application for a visa.
The applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received his application on
20th April 2007. On 23rd July 2007 the Refugee Review Tribunal, differently constituted from the Tribunal whose decision is before the Court today, affirmed the decision of the delegate. The applicant sought judicial review and on 17th March 2008 the Federal Magistrates' Court set aside that decision and issued Writs of Certiorari, Prohibition and Mandamus (see SZLGB v Minister for Immigration & Anor).[4]
[4] [2008] FMCA 332.
As a result the Tribunal invited the applicant to attend the further hearing. That hearing was conducted on 6th June 2008. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. The applicant also provided a witness who also gave evidence to the Tribunal on the applicant's behalf.
The Tribunal signed its decision on 4th July 2008 and handed that decision down on 24th July 2008 affirming a decision not to grant the applicant a Protection (Class XA) visa. In its decision the Tribunal set out the applicant's claims from his protection visa application. It noted photographs and other documentary evidence that the applicant had submitted on 24th May 2007, which was the date of the first Tribunal hearing, and it set out a summary of the evidence at that first Tribunal hearing. The Tribunal also set out a summary of the applicant's evidence to the Tribunal hearing on 6th June 2008, which led to the Tribunal decision which is the subject of the present review.
Apart from summarising the applicant's evidence and that of the applicant's witness, the Tribunal also considered independent evidence relating to the practice or philosophy which is loosely known as Falun Gong but is also called Falun Dafa and was founded in 1992.
In its findings and reasons the Tribunal accepted that the applicant is a national of China from Fujian province and noted his claims that he would be persecuted if he were to return to China as a Falun Gong practitioner. However, the Tribunal did not accept that the applicant is or was a genuine Falun Gong practitioner. The Tribunal set out a number of reasons as to why it did not accept his claim. First the Tribunal found that the applicant displayed a limited understanding of Falun Gong practices and beliefs at the hearing, although he had a general understanding about certain aspects of Falun Gong.
The Tribunal found the applicant's evidence about the nature of his Falun Gong practice in China to be vague, inconsistent and unconvincing, and in the Tribunal's view gave internally inconsistent evidence as to how many times he attended a public park to practice Falun Gong.
The Tribunal did not accept that the applicant was telling the truth about his claimed Falun Gong practice in China and did not accept that he was a genuine Falun Gong practitioner in China. Accordingly, it did not accept that he was detained and questioned by the authorities about his Falun Gong practice at the end of 1999 or the end of 2000.
The Tribunal did accept that the applicant has been involved in some Falun Gong activities in Australia, such as practicing the exercises at practice sites in Campsie and Parramatta, reading books in relation to Falun Gong and participating in protests. The Tribunal had regard to the evidence of the applicant's witness, including her written statement, and also the written statements of two other people who had made statements on the applicant's behalf. However, the Tribunal expressed concerns about other aspects of the applicant's evidence in relation to his claimed Falun Gong practice in China and his superficial knowledge of Falun Gong and his claimed arrest.
Accordingly, the Tribunal was not satisfied that the applicant had engaged in this conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal said:
As the Tribunal is not satisfied that the applicant has engaged in his conduct in Australia in practising Falun Gong (that is, reading Falun Gong books, practising the Falun Gong exercises, participating in protests, criticising the PRC authorities and talking to journalists), otherwise than for the purpose of strengthening his refugee claims, the Tribunal is required to disregard his conduct engaged in Australia in accordance with subsection 91R(3) of the Act.[5]
[5] See Court Book page 175.
The Tribunal considered the applicant's future conduct in China, but as it did not accept that the applicant would take up Falun Gong practice on his return to China because it did not accept that he was a genuine practitioner, it therefore did not accept that he would be detained or questioned by the Chinese authorities for reasons of his actual or imputed Falun Gong practice if he were to return. The Tribunal specifically considered the circumstances of the applicant's departure from China, and said:
The applicant claims that he left China illegally by paying a people smuggler. He claims that he left without a passport as a stowaway on a ship. The Tribunal has not relied on this evidence, or the evidence he provided to the Department in an interview to make adverse findings in relation to the applicant's credibility or about aspects of his claims.[6]
[6] See Court Book page 177.
The Tribunal went on to find that it did not accept that the fact that the applicant had left China illegally establishes that had experienced Convention-related persecution or that he faced a real chance of persecution in the future. The Tribunal went on to consider whether the applicant would be persecuted by the authorities due to his departure from China illegally without a passport as a stowaway on a ship. The Tribunal said:
He may face punishment because he left China in this manner. However, any punishment that he may face for these reasons on his return to China will be punishment for the breach of laws of general application and not one of the Convention reasons. There is nothing in any evidence available to the Tribunal to suggest that the applicant will be punished more severely by reason for having departed China illegally.[7]
[7] See Court Book page 178.
Accordingly, the Tribunal affirmed the decision not to grand the application a Protection (Class XA) visa. The applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 20th August 2008 and he filed an amended application on 15th October 2008 setting out the two grounds of review on which he relies. Whilst the applicant did not file any written outline of submissions, he made an oral address to the Court at the hearing. The applicant told the Court, with the assistance of an interpreter in the Mandarin language, that he believed that the Tribunal decision was not correct. He referred to the fact that he had smuggled himself to Australia and complained that the Tribunal did not ask direct questions about that fact. He pointed out that he had a good job in China and he would not have left China if he had not been persecuted.
In reply to submissions by Mr Reynolds of counsel who appeared for the respondent Minister, the applicant reiterated that he did practice Falun Gong in China. Because the Chinese authorities persecuted Falun Gong practitioners he said he could not practice for very long. He confirmed that he felt that Falun Gong is very beneficial to him. Counsel for the Minister, Mr Reynolds, submitted that the applicant's claim that the Tribunal decision is not correct was in fact a challenge to the Tribunal's factual findings and was an attempt at merits review which is not permissible. As to the applicant's claim that he was not asked direct questions about his trip to Australia, Mr Reynolds drew the Court's attention to the fact that this had been specifically referred to by the Tribunal in its findings and reasons at paragraphs 91 and 92, which can be found at pages 177 and 178 of the Court Book.
What happened is that the Tribunal did not make any adverse finding about the applicant because of the method of his arrival in Australia.
It accepted that he had travelled to Australia in that way, however, it did not go on to accept that the manner of the applicant's leaving China established that he experienced Convention-related persecution or that he faced a real chance of persecution in the future.
As to the applicant's grounds in his amended application, the first ground claims that the Tribunal failed to consider the fact that he had been practising Falun Gong in Australia and that his activities in Australia might cause further persecution to him on his return to China. The Tribunal did accept that the applicant had been involved in Falun Gong activities, but was not satisfied that he had engaged in this conduct in Australia otherwise than for the purposes of strengthening his claim to be a refugee. Accordingly, Mr Reynolds submitted that the Tribunal was thus obliged to disregard this conduct in accordance with sub-s.91R(3) of the Act.
As to the claim that the Tribunal had not complied with s.424A of the Act, Mr Reynolds submitted that the Tribunal, at least as previously constituted, had forwarded a s.424A letter to the applicant on 29th May 2007 which brought to the applicant's attention a number of matters which the Tribunal set out would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The applicant through his migration agent in fact replied to that letter in a response dated 8th June 2007 which can be found at pages 88 and 89 of the Court Book.
Dealing with the applicant's claims, in my view the applicant's first ground of the Tribunal's failure to consider that he had been practising in Falun Gong in Australia must fail. The Tribunal did consider that claim but formed the view that those activities were engaged in only for the purpose of strengthening his refugee claim, and accordingly was obliged to disregard that claim under sub-s.91R(3). The Tribunal did consider the applicant's situation on return to China but did not accept that he would be detained or questioned by the Chinese authorities for reason of his actual or imputed Falun Gong practice because it did not accept that he was a genuine Falun Gong practitioner in China. Accordingly, if the applicant was not a genuine Falun Gong practitioner in China, the Tribunal took the view that he would not take up Falun Gong practice on his return to China. In my view this is a finding that deals with the applicant's claim that he would be persecuted on his return to China for practice of Falun Gong, but does not rely on the applicant's activities in Australia which the Tribunal was obliged to disregard under sub-s.91R(3).
Accordingly, the Tribunal did not fall into jurisdictional error and ground one is dismissed.
The applicant also claims that the Tribunal did not comply with s.424A of the Migration Act. The Tribunal, of course, did send the applicant a letter back on 24th May 2007 to which the applicant replied. That was a comprehensive letter. The fact that the letter was sent prior to the earlier Tribunal hearing is of no consequence. It was still open to the Tribunal as constituted for the purpose of this application to consider the earlier material. There is only one review. The fact that the Tribunal's earlier decision was set aside does not mean that the Tribunal is obliged to ignore earlier evidence.
In my view the Tribunal has based its decision on the applicant's evidence to the Tribunal and, as Mr Reynolds of counsel has pointed out, the Tribunal went to some trouble to put matters of concern to the applicant during the hearing. They are particularly set out in paragraphs 51 through to 55 of the Court Book at pages 170 and 171, and at paragraph 56 the Tribunal noted the applicant's replies.
The Tribunal, of course, did consider independent country information as it was entitled to do. Independent country information does not come under the heading of information which falls within the purview of sub-s.424A(1) as it is covered by sub-s.424A(3)(a). There is no breach of s.424A of the Migration Act.
The applicant's claim to the Court today relates to this general claim that the Tribunal decision is wrong. That is just a challenge to the Tribunal's factual findings and a Court conducting judicial review has no power to undertake merits review.
The applicant has complained that the Tribunal did not ask him direct questions about his leaving China and travelling to Australia illegally as a stowaway on a ship. This, in my view, does not assist the applicant. The Tribunal did consider this. The Tribunal set out issues that may arise but ended up, at paragraphs 91 and 92 of the findings and reasons, accepting that the applicant had travelled illegally to Australia as a stowaway on a ship with the assistance of a people smuggler. What the Tribunal did not do was take the next step to decide that that course of action supported the applicant's claim to have a well-founded fear of persecution for a Convention reason.
That finding was open to the Tribunal on the evidence.
The applicant, either orally or in his amended application, has not established any jurisdictional error. I am mindful of the fact that he is not legally represented. I am unable from my independent reading of the Tribunal decision to discern any arguable case for a jurisdictional error. 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 subsection 474(1) of the Act a privative clause decision is final and conclusive and is not subject to orders in the nature of Certiorari, Mandamus or Prohibition. It follows that the application must be dismissed.
In my view this is an appropriate matter for a costs order as the applicant has not been successful in his claim. The amount of $4,500.00 is an appropriate figure inclusive of counsel's fees.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 November 2008
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