SZMTT v Minister for Immigration - [2008] FMCA 1705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTT v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1705

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – credibility – no jurisdictional error – privative clause decision.

Migration Act 1958 (Cth), ss.422B, 424A, 425, 474

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1

Applicant:

SZMTT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2460 of 2008

Judgment of:

Scarlett FM

Hearing date:

4 December 2008

Date of Last Submission:

4 December 2008

Delivered at:

Sydney

Delivered on:

4 December 2008

REPRESENTATION

The Applicant:

Applicant appeared in person

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondents:

Ms Anniwell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the first respondent's costs, fixed in the sum of $2,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2460 of 2008

SZMTT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant is a citizen of the People's Republic of China. He asks the Court to review a decision of the Refugee Review Tribunal that was handed down on 28^th August 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant him a Protection (Class XA) visa. In his application, which was filed on 23^rd September 2008, the applicant asks the Court for an order in the nature of certiorari to set aside the Refugee Review Tribunal's decision. He also asks for an order in the nature of mandamus requiring his application to be sent back to the Refugee Review Tribunal for determination.
It has been explained to him that in order to make the orders which he seeks, it will be necessary for the Court to be satisfied that the Tribunal decision is affected by jurisdictional error. The applicant claims in his application that the Tribunal did commit jurisdictional error. He claims that the Tribunal did not consider his evidence fairly. He complains that he has been denied procedural fairness because the Tribunal did not use favourable cases for his application. The applicant also complains that the Tribunal failed to consider the risk that he would be put in gaol if he returned to China.
The applicant has also filed an affidavit in which he deposes that he was born in China and refuses to go back to China because the Chinese Government forbids him to practise Falun Gong. He claims to be a Falun Gong practitioner and claims that the Chinese Government persecutes Falun Gong practitioners. He claims in his affidavit that he will be put in gaol if he returns to China and practises Falun Gong.
The Minister for Immigration & Citizenship, who is the first respondent in the application, has filed a response opposing the orders and has also filed a written outline of submissions.

Background

The background to this matter is that the applicant arrived in Australia on 22^nd January 2008. Exactly a month later, on 22^nd February, he applied for Protection (Class XA) visa. With his application, the applicant provided a statutory declaration in which he set out that after he left school, he started working on an eel farm in his home town, which was run by one of his relatives. The relative established a new eel farm in another part of Fujian Province and the applicant was invited to manage that farm, and also given 10 per cent of the business. However, a distant relative of the applicant was involved in Falun Gong and the applicant kept in touch with him and on one occasion, when he returned to his home village, he was taken to the Public Security Bureau where he was interrogated. It turned out, on the applicant's account, that the applicant's relative, who had been involved in Falun Gong, had escaped and gone into hiding and the police were trying to arrest him, and the police suspected that the applicant may have been involved in assisting him. The applicant set out in his statement that the police were from the 610 Office, and that they treated him in a very brutal manner, and he was subjected to torture. He claimed to have been detained by the police for a fortnight, and subjected to mistreatment and humiliation.
After he was released, the applicant was very angry about the police, and he was again arrested and tortured. The applicant claimed in his statement that he assisted people to distribute copies of Falun Gong promotional materials, but eventually, one of the people whom he had assisted was arrested. The applicant feared for his own safety and left China. He claimed in his statement that the police who attended both his home and the eel farm with search warrants, interrogated members of his family in an effort to find him.
The Minister's delegate considered the applicant's claim, but refused the application for a visa on 15^th May 2008. The delegate was not satisfied that the applicant had substantiated the claim of well-founded fear of persecution and stated:
The applicant's claims are vague and unsubstantiated. Whilst available information indicates that genuine Falun Gong practitioners in some circumstances are at risk of persecution in China, the applicant has not claimed to be a Falun Gong practitioner. He has merely made assertion that his friends are Falun Gong practitioners.[1]
The delegate also noted that the applicant had no difficulty leaving China on a valid passport in his own name.
[1] See Court Book page 53.

Application to Refugee Review Tribunal

After the applicant's application for a visa was refused, he applied to the Refugee Review Tribunal on 13^th June 2008 for a review of the delegate's decision. The applicant was assisted in preparing this application by a migration agent, Ms Priscilla Yu. The Tribunal wrote to the applicant care of his migration agent on 30^th June 2008 inviting him to attend a hearing of the Tribunal on 31^st July. The applicant attended the hearing on that date and gave evidence with the assistance of an interpreter in the Mandarin language. He produced his Chinese passport to the Tribunal. The Tribunal signed its decision on

19^th August 2008
and handed that decision down on 28^th August.

The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.

The Refugee Review Tribunal Decision

In the decision record, the Tribunal set out a summary of the applicant's claims when he applied for a protection visa, and a summary of his oral evidence. It referred to independent country information on corruption in the People's Republic of China, on departure and exit procedures from China, relating to people who were under adverse interest of the authorities. In its findings and reasons, the Tribunal accepted that the applicant was a national of China. It did so on the basis of the fact that he had travelled to Australia on a valid Chinese passport, and in fact, claimed to be a national of China. However, the Tribunal did not accept the truth of the applicant's claims. The Tribunal made this finding:
The Tribunal found the applicant not to be a credible witness. The applicant gave inconsistent, implausible evidence that changed during the course of the hearing.[2]
The Tribunal then set out the reasons why it found the applicant's evidence to be inconsistent and implausible. The Tribunal did not accept that the applicant assisted members of Falun Gong in China, or was of any interest to the Chinese authorities. It did not accept that he had been detained by the police, and it did not accept his claim to have been tortured. The Tribunal also found that the applicant would not seek out or engage in Falun Gong or anti-Government activities if he returned to China, and found that the applicant was not at risk due to any involvement with or perceived association with Falun Gong, or any of its members. It found that he was not at risk due to being a major activist or being perceived as one in any anti communist Government movement. The Tribunal went on to find that there was no real chance that the applicant would be persecuted because of perceived or suspected support of Falun Gong members, and found there was no real chance that he would suffer serious harm for the reason or his perceived assistance to Falun Gong, or future involvement in Falun Gong in China.
[2] See Court Book page 88.
Accordingly, the Tribunal found the applicant did not have a well‑founded fear of persecution and was not satisfied that he was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. As the applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa, the Tribunal affirmed the decision not to grant him a protection visa.
The applicant has sought judicial review of that Tribunal decision in this Court. He sets out three grounds;
(1) Jurisdictional error has been made. RRT did not consider my evidence fairly.
(2) Procedural Fairness has been denied. RRT did not use favourable cases to my application.
(3) RRT failed to consider the risk if I returned to China. I will be put in jail if I return to China.
The applicant has not filed a written outline of submissions, but he has attended Court and made oral submissions with the assistance of an interpreter in the Mandarin language. In answer to questions from the Bench about his case, he told the Court that the Tribunal decision was unfair because the Tribunal did not believe his evidence. He expanded on his claim of procedural unfairness by saying that the questions asked of him by the Tribunal, and the way in which those questions were asked, made him very nervous. He complained that he had been asked about what he had done in China, and told the Court that his memory was not very good, resulting from a medical condition that he had sustained as a child. When asked to comment on his claim that the Tribunal did not consider the risk of persecution if he returned to China, when there was specific reference of that in the Court Book, the applicant said that that finding was incorrect and that he would definitely be persecuted. He told the Court that he did really participate in Falun Gong activities in China.
The solicitor appearing for the Minister, Ms Anniwell, filed a written outline of submissions, which succinctly addressed the applicant's case. She also made an oral submission in which she dealt with the applicant's submission. Ms Anniwell told the Court that it was indeed the fact that the Tribunal did not accept the credibility of the applicant's case, but it was a matter for the Tribunal as to whether it found the applicant's evidence credible or not. She submitted that the Tribunal had considered and rejected the applicant's claims and it was entitled to do so. Ms Anniwell told the Court that the applicant was seeking to engage in merits review of his factual claims. Ms Anniwell also put to the Court that there was no evidence provided by the applicant in the nature of transcript or affidavit, that the manner in which the Tribunal member questioned the applicant was not at all unfair. The Court had only the decision record to rely on and there was nothing in that document to show the applicant had any difficulties in understanding the questions put to him by the Tribunal or in replying to those questions. It is, as Ms Anniwell submitted, a part of the inquisitorial process that the Tribunal is required to undertake to proceed in question and answer form. Ms Anniwell also submitted that whilst the applicant had claimed to suffer from a poor memory, resulting from a childhood medical condition, no evidence had been provided in support of that claim. Ms Anniwell further submitted that the Tribunal had indeed considered what risk there would be of persecution if the applicant were to return to China.
Dealing with the applicant's three grounds, he firstly claims jurisdictional error, because the Tribunal did not consider his evidence fairly. My reading of the Tribunal decision shows that the Tribunal did consider the applicant's evidence, both his original claims made in his statutory declaration accompanying his application for a protection visa, and his oral evidence to the Tribunal. It would certainly appear that the Tribunal summarised the evidence in its decision record in a detailed and accurate way.
The Tribunal considered the applicant's evidence, but found the applicant's evidence to be lacking in credibility, and because the Tribunal was not satisfied the applicant was a credible witness, ultimately, the applicant's claim failed. It is well-established that credibility is a matter for the Tribunal. It is a factual finding. It has been described as a factual finding par excellence in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[3].

The Tribunal considered the evidence and, based on that evidence, made its credibility finding. It was open to the Tribunal to do that and it was not open to the Court conducting judicial review to interfere in those circumstances. The applicant's ground 1 has not been made out.
[3] (2000) 168 ALR 407; [2000] HCA 1
The applicant's second ground claims a denial of procedural fairness and the fact that the Tribunal did not use favourable cases for his application. The applicant's claim of denial of procedural fairness relies on his having been asked questions by the Tribunal which he said made him nervous. There is nothing in the Tribunal decision record to indicate that the questions were intimidatory or in any way out of the ordinary, and they do not appear to have related to matters that the applicant should not have reasonably expected to have been asked. The applicant complained to the Court that the Tribunal asked him what he did in China. Such an inquiry is a basic and even necessary inquiry, for a Tribunal attempting to establish whether an applicant had a well-founded fear of persecution in China, for a convention reason.
As has been put to me by the solicitor for the Minister, s.422B of the Migration Act provides that Division 4 of Part VII of the Act exhaustively sets out the requirements of the natural justice hearing rule in relation to matters dealt with in that division. Ms Anniwell has submitted, and I believe correctly, that there is no indication that the Tribunal failed to fulfil any of the statutory requirements of Division 4 of Part VII of the Act.
The Tribunal invited the applicant to attend a hearing and conducted the hearing as required by s.425 of the Migration Act. The invitation to the hearing appears to me to comply with s.425A of the Act.

The matters dealt with at the hearing, related to the issues that had been dealt with in the delegate's decision record, so, there was nothing untoward in the matters asked of the applicant by the Tribunal or the findings made. In my view, there is no breach of s.425 of the Migration Act. The applicant, I should note, asked for the assistance of an interpreter in the Mandarin language, and such an interpreter was available to him at the hearing.
The Tribunal put to the applicant at the hearing, certain matters of concern. The Tribunal offered the applicant the opportunity to comment on those concerns. The Tribunal sets this out at page 84 of the Court book at paragraph 47 saying:
The Tribunal asked the applicant if he wanted to comment on the concerns of the Tribunal and indicated that he could do so by commenting later after an adjournment or seeking to put further written answers and submissions to the Tribunal. The Tribunal indicated that it was concerned about the above as it sounded implausible and could lead the Tribunal to not accepting his story and therefore finding he is not at risk of persecution.

The applicant considered what the Tribunal had put to him and replied that he had nothing further to say he has already provided his statement.[4]
In my view, the Tribunal has complied with the requirements of s.424AA of the Migration Act in making the offer to the applicant that it did. I do not see that there is any breach of s.424A of the Migration Act in that the Tribunal decision was based on its adverse findings as to the applicant's credibility, derived from:
a)The applicant's own evidence to the Tribunal; and,
b)Independent country information,
both of which are excluded by s.424A(3) of the Migration Act. In my view, there is no procedural unfairness that has been shown.
[4] See Court Book page 84.
The applicant has put that the Tribunal did not use favourable cases to his application, but this cannot ground jurisdictional error.

The Tribunal's obligation is to consider the applicant's case. It has no obligation to make either a favourable finding or an unfavourable finding. In my view, ground 2 has not been made out.
The applicant's third ground claims that the RRT failed to consider the risk if he returned to China, he would be put in gaol if he returned to China. The Tribunal did consider that risk. It specifically set out a paragraphs 84 and 85 of its decision on page 90 of the Court book, its findings that based on the applicant's own evidence, he has no interest in Falun Gong and because the Tribunal found the applicant was not a witness of truth, it did no accept that Falun Gong members were arrested an implicated him in their confessions. Accordingly, the Tribunal found that the applicant was not at risk due to any involvement with or perceived association with Falun Gong or any of its members, and found that he was not at risk due to being a major activist or perceived as one, and for the reasons that it gave, found that if the applicant were to return to China at that time or the foreseeable future, there was no chance that he would be persecuted because of perceived or suspected support of Falun Gong members.
The Tribunal, in other words, did consider the risk if the applicant returned to China, and was not satisfied that he had a well-founded fear of persecution. The applicant claims that the Tribunal's finding is incorrect, but that is a challenge to the merits of the Tribunal's findings and it is not a submission the Court can entertain.
All three of the applicant's grounds have not been made out. I am mindful of the fact that the applicant has not been legally represented in the proceedings before the Court today, however, he was referred to a barrister who is a member of the Refugee Review Tribunal legal advice panel, and has had the opportunity to at least consider legal opinion about his case. I do not, on my reading of the Tribunal decision, or the supporting material, find any arguable case for any jurisdictional error, whether it is one raised by the applicant or not.

In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by sub-s.474(2) of the Migration Act. Under sub-s.474(1) of the Migration Act, privative clause decisions are final and conclusive, and are not subject to orders in the nature of certiorari or mandamus, which is what the applicant seeks in these proceedings. It must follow, therefore, that as the decision is a privative clause decision, the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $2,800.00. The applicant has been unsuccessful in his claim and it is appropriate to make an order providing that the applicant should pay the first respondent's costs on a party and party basis. Those costs are estimated at $2,800.00. That is a figure well within the scale provided by the Federal Magistrates Court Rules.

It appears to me to be an appropriate figure and I am satisfied that I should award costs in that amount.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 16 January 2009