SZMWC v Minister for Immigration
[2008] FMCA 1730
•10 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1730 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of People’s Republic of China claiming fear of persecution for reason that she is a Falun Gong practitioner – no jurisdictional error – privative clause decision. |
| Migration Act 1958 (Cth), ss.36, 424AA, 474, 477 |
| NADH v Minister for Immigration & Anor [2004] FCAFC 238 |
| Applicant: | SZMWC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2705 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 December 2008 |
| Date of Last Submission: | 10 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2705 of 2008
| SZMWC |
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. In her application, filed on 21st October 2008, the applicant seeks review of a decision of the Refugee Review Tribunal. The Tribunal's decision was handed down on 21st August 2008. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
In her application, the applicant asks the Court to find that the Tribunal decision is invalid and send her application for a visa back to the Refugee Review Tribunal for a further review.
It has been explained to the applicant that before the Court can make orders of that kind it is necessary for the Court to be satisfied that there has been a jurisdictional error. In her application, the applicant has set out two grounds where she claims jurisdictional error has been made. The applicant's first ground says:
The Tribunal has not given due consideration to my personal circumstances in my home country. I faced genuine persecution and the tribunal failed to consider the risk to my safety when returning to my country.
The applicant's second ground says:
The tribunal weighed my knowledge of Falun Gong too much but failed to consider the limitation of my education and expression ability and failed to consider other relevant materials.
The Minister has filed a response on 30th October stating that the application does not establish any jurisdictional error and asks that the application should be dismissed.
Background
The background to this matter is that the applicant arrived in Australia on 27th January 2008. She applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 21st February 2008.
With her application the applicant provided a one page type statement setting out that she faced persecution in China because of her practice of Falun Gong, which is also known as Falun Dafa. She claimed that she had suffered from poor health until 1997 but her health improved once she started practising Falun Dafa. She claimed to have been harassed by the police and local officials and in October 2003 was illegally detained for what she described as “half a month”.
A delegate of the Minister refused her application for a visa on 1st April 2008. The delegate had written to the applicant on 26th February 2008, inviting her to attend an interview on 27th March. The applicant did not attend. In the delegate's reasons, the delegate said:
The applicant has made claims concerning her fear of persecution in the PRC, however no evidence has been provided by the applicant to support her claims.
The applicant was invited to attend an interview on 27 March 2008 to discuss the claims and to provide further details in order to assist in the assessment of her application. The interview invitation letter was sent to the applicant's stated residential and postal address on 28 February 2008 by registered post. The applicant did not respond to the invitation letter, and did not attend the interview. Furthermore, she did not contact the Department to advise the reason that she did not attend, nor to request a postponement of the interview date.
As at the date of this decision, the applicant has made no further contact with the Department since lodging her application.[1]
[1] See Court Book, page 38.
The delegate stated that because the applicant had not attended at the interview she had had no opportunity to obtain and check all of the available evidence relating to the applicant's claims. Consequently, she was not able to be satisfied that the application has a fear of convention related persecution in the PRC as claimed, or that she is a person to whom Australia has protection obligations.[2]
[2] See Court Book page 39.
The applicant applied to the Refugee Review Tribunal on 1st May 2008 to review of the delegate's decision. The Tribunal wrote to the applicant on 13th June 2008 inviting her to attend a hearing on 11th July. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. She produced her Chinese passport to the Tribunal at the hearing.
The Tribunal signed its decision on 1st August 2008, and handed the decision down on 21st August. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. In the Tribunal decision record the Tribunal set out a summary of the applicant's claims from her protection visa application and set out a detailed summary of the evidence that the applicant gave to the Tribunal.
The Tribunal also set out, in paragraph 48, under the heading Information Under Section 424AA that it had put to the applicant certain information for her comment. The Tribunal noted that the applicant stated that she did not wish to seek additional time to comment on or respond to the information.
The Tribunal in its decision referred to independent evidence about Falun Gong or Falun Dafa including its philosophy and the exercises. The Tribunal's findings and reasons are set out at pages 70 through to 72 of the Court Book. The Tribunal accepted the applicant's identity and her date of birth and accepted that she was a national of China from Lianing Province. The Tribunal noted the applicant's claim that she would be persecuted if she returned to China because she was a Falun Gong practitioner.
The Tribunal did not accept the applicant's claims. It then set out five sets of reasons as to why it did not accept her claims to fear persecution on the basis of being a Falun Gong practitioner. The Tribunal stated:
Firstly, the Tribunal does not accept that the applicant is or was a genuine Falun Gong practitioner. The Tribunal finds that the applicant displayed a limited understanding of Falun Gong practice and beliefs at the hearing.[3]
Secondly, the applicant claims that she was of interest to Chinese authorities and was persecuted for her Falun Gong practice, is inconsistent with her evidence that she practised in public parks without difficulty during 1999 and possibly 2000.[4]
Thirdly, the Tribunal finds that the applicant was unaware of the Zhongnanhai protest and of when the Beijing self immolation incidents occurred. In the Tribunal's view, if the applicant had been a genuine Falun Gong practitioner in China and had associated with other Falun Gong members, she would have been aware that the Zhongnanhai protests occurred in Beijing in April 1999 and that the Beijing self immolation incident occurred in January 2001.[5]
Fourthly, the applicant's evidence was that after her claimed arrest in October 2003, she was able to practice Falun Gong at a friend's place for another five years without being detected by the authorities. The Tribunal considers that if the applicant was genuine Falun Gong practitioner, she would have been monitored more closely after her detention and she would not have been able to practice Falun Gong unhindered for five years after her release.[6]
Fifthly, the Tribunal finds that the applicant travelled overseas twice to Malaysia and Singapore in 2006 and 2007 after her claim to detention. She returned to China twice despite her claims that she had a fear of being persecuted for reasons of her Falun Gong practice. The applicant also delayed leaving China after her claimed detention in 2003. She did not leave until five years later in 2008.[7]
[3] See Court Book, page 70.
[4] See Court Book page 71.
[5] See Court Book page 71.
[6] See Court Book page 71.
[7] See Court Book page 72.
For those reasons the Tribunal did not accept that the applicant was telling the truth about her Falun Gong practice in China, and it did not accept that she was a Falun Gong practitioner in China nor perceived to be one. The Tribunal did not accept the applicant's other claims and was not satisfied that she had a well found fear of persecution because of her real or imputed association with the Falun Gong if she returned to China.
As the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention it found that she did not satisfy the criteria set out in paragraph 36(2)(a) of the Migration Act for protection visa.
Application for Judicial Review
The applicant commenced proceedings in this Court for judicial review of the Tribunal decision on 21st October 2008. She filed an application and two affidavits. The first affidavit related to the question of whether or not her application was out of time, under s. 477 of the Migration Act.
The second affidavit repeated the two grounds of review set out in the application. The application shows the date when the applicant was notified of the Tribunal decision as 21st August 2008, and it is clear that the application was filed on 21st October 2008. On its face, the application would appear to have been filed out of time. Ms Johnson, solicitor who appeared for the Minister, quite properly told the Court that there was no evidence as to when the applicant actually had been notified apart from the statement that she was notified on the day the decision was handed down and, in any event, if the application was out of time it was not so irretrievably out of time that it would not be open to the Court to grant an extension. The application was certainly been filed within the relevant period of 84 days.
Quite clearly, in taking this approach, Ms Johnson has borne in mind the Minister's determination to be a model litigant and it is, in my view, an appropriate approach to take. For more abundant caution I have ordered that the time for making the application is extended under
s. 477 of the Migration Act.
Proceeding now to the hearing of the application, the applicant has attended Court and whilst she has not filed a written outline of submissions she has been offered the opportunity of making oral submissions in support of her claim.
She told the Court initially that she had nothing to say, and because of her limited education she does not talk much. In answer to a question from the Bench, the applicant said that she had spent some two years in High School. She asked the Court to take those matters into consideration and return her application for a visa to the Refugee Review Tribunal.
Ms Johnson, for the Minister, addressed the Court briefly and referred to paragraph 20 of the Tribunal decision at page 64 of the Court Book where the Tribunal noted the applicant's statements about having been born in Lianing Province and completed High School there.
There are two grounds of review argued. First, that the Tribunal did not give due consideration to the applicant's personal circumstances and the applicant claims that she faced genuine persecution in China but the Tribunal failed to consider the risk to her safety if she were to return to her country.
The Tribunal did consider the applicant's claims and it did consider the material that was submitted by the applicant, mainly her Chinese passport containing various visas. The applicant has not identified any part of her case or any evidence that the Tribunal did not consider.
The Tribunal did consider what risk of persecution there would be to the applicant if she should return to the Peoples Republic of China in the reasonable foreseeable future.
It did not accept that she would practice Falun Gong if she returned to China, and it did not accept that she would refrain from doing so out of fear, and because of that it concluded that she did not have a well founded fear of persecution for a convention reason.
The applicant's first ground of review has not been made out, in my view. It is clear that the Tribunal did consider her claims, but rejected her claims on the basis that it did not accept the truth, and set out in some detail five reasons or sets of reasons as to why it did not find her claim to be acceptable. There is no error in that approach.
The Tribunal considered the evidence before it but ultimately found that evidence wanting. The applicant's first ground is not made out.
The second ground claims that the Tribunal weighed her knowledge of Falun Gong too much but failed to consider her limited education and her limited ability to express herself, and failed to consider relevant materials.
Again, there is no evidence as to what relevant material or relevant part of the claim the Tribunal did not consider. The Tribunal considered all of the evidence before it, but was not persuaded as to the credibility of the applicant's claim. This is a matter for the Tribunal. As Ms Johnson submitted, as to the claim of the Tribunal giving too much consideration to the applicant's knowledge of Falun Gong, the Tribunal is entitled to exercise some control over the direction of its hearing by asking questions.
In NADH v The Minister for Immigration,[8] the Full Court of the Federal Court held that the Tribunal is entitled to ask questions to satisfy itself of matters. The Tribunal was not obliged to ask the applicant any particular questions and the weight that it should give to that evidence was entirely a matter for the Tribunal to assess as part of its fact finding role.
[8] [2004] FCAFC 238 at [124] to [125].
Whilst the applicant has complained today that the Tribunal did not consider her limited education, and she said that she had only two years of education, the Tribunal noted that the applicant's had claimed to have completed High School in China. There is no evidence to show that the applicant made any other claim to have limitations because of her education or lack of it, or because of her lack of ability to express herself.
True, she may have been nervous. That is not surprising in the circumstances. The applicant appeared to be somewhat nervous and reticent before the Court today. That is a not a criticism of her and, in fact, it is quite understandable. The Court is well aware that the parties appearing before it can be nervous because it can be an intimidating experience appearing before a Court or a Tribunal. Nevertheless, it is up to an applicant to persuade, in this case the Tribunal standing in the shoes of the Minister, that she has a well founded fear of persecution in China for a convention reason.
The Tribunal was not satisfied that the applicant had made that case. The Tribunal was not satisfied that the applicant was a credible witness and this was a finding that was open to the Tribunal on the evidence.
The applicant is not legally represented, although she has had advice from a lawyer on the RRT Legal Advice Panel. I have read the Tribunal decision independently of either the applicant's claims or the Minister's submissions, and I have read the supporting material in the Court Book. I am unable to discern any arguable case for jurisdictional error.
In my view, there is no jurisdictional error and, accordingly, the Tribunal decision is a privative clause decision as defined by s. 474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of declaration, certiorari, mandamus, or prohibition. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $3,000.00. The applicant has been unsuccessful in her claim and it is appropriate to make an order for costs in favour of the first respondent. The amount sought is $3,000.00, which is well within the scale provided by the Federal Magistrates Court rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 9 January 2009
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