SZMYK v Minister for Immigration
[2009] FMCA 172
•25 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMYK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 172 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s decision to affirm delegate’s decision was not a discretionary one and thus Wednesbury principles did not apply to it – Court cannot supervise the Tribunal’s fact finding and the questions it does or does not ask – failure to comply with s.420 of the Migration Act 1958 does not amount to jurisdictional error. |
| Migration Act 1958, ss.65, 91R, 420, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
| Applicant: | SZMYK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3050 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 25 February 2009 |
| Date of Last Submission: | 25 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3050 of 2008
| SZMYK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he had some involvement with Falun Gong. He arrived in Australia on 16 June 2008.
The applicant claims to fear persecution in China because he has been wrongly imputed as being associated with Falun Gong or because he is a Falun Gong practitioner.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 9 August 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4, 12-14 of the Tribunal’s decision (Court Book (“CB”) pages 69, 77-79).
In a statement accompanying his application for a protection visa, the applicant claimed that he became a Falun Gong practitioner in 1996. He claimed that in December 2006, he and other practitioners went to the government offices of the Tianjin municipal government to persuade the regional government officials that the practice of Falun Gong was good. However, he was arrested and detained, first at a police station where he was physically assaulted, then in a hospital and finally in the city’s detention centre. Following this incident, he could not find a job and his wife’s salary was not enough to support the family. He decided to leave China, bribed a powerful government official to issue him with a passport and applied for a visitor visa to Australia.
The applicant attended the Tribunal hearing on 29 October 2008 to give evidence and present arguments and made the following additional claims:
a)he made various allegations about his previous association with Falun Gong, including that:
i)he practised Falun Gong from 1997 to 1999 when it was banned and is not presently a genuine Falun Gong practitioner;
ii)he was a learner at the time Falun Gong was banned and he was placed on reporting conditions by the PSB;
iii)he could not remember most of the exercises; and
iv)he could not provide any evidence of his past association with Falun Gong;
b)at the end of 2006 and early 2007, he realised he would be persecuted if he stayed any longer in China. He left in mid-2008 after hearing that the authorities were going to arrest Falun Gong practitioners and associates ahead of the Olympic Games;
c)he visited Europe for business reasons in January 2006 during which he met an old woman in Paris who practised Falun Gong. He claimed that someone must have been spying on her because upon his return to the PRC in February 2006, the PSB took him aside and showed him a photograph of him with the woman;
d)he was interrogated in March 2006 and accused of associating with the Falun Gong movement however he denied every accusation against him;
e)as a result of these events, he claimed his family was placed under surveillance, his child’s education was affected, his wife lost her job, he had to sell his property and, although he bought another property, he was not allowed to move his family into it because of the Falun Gong issues;
f)concerning the incident in December 2006, the applicant claimed that he feared persecution on the basis of being wrongly imputed to have links to Falun Gong, saying that he went alone to Tianjin City in December 2006 to clear his name and disavow all involvement with Falun Gong, however, the authorities did not believe him and harassed him about his links to Falun Gong and practitioners abroad. He later claimed he was detained for 34 days during which he was shown the Paris photograph again, asked for names of Falun Gong associates and released upon signing an undertaking to cease involvement with Falun Gong which he said he had done in 1999 when it was banned;
g)the Tribunal put to the applicant that there were discrepancies between his oral and written evidence, including as to why he went to Tianjin City and whether he went alone, and his omission from his written claims of the incident in Paris, the photograph and the March 2006 interrogation. In response to this, the applicant made various claims including that:
i)there were problems with the translation;
ii)the person who helped him with his statement said they would just write that the applicant had been persecuted for being a Falun Gong follower and he himself should add the details. He indicated to the Tribunal that this discussion only took place in the week before the hearing; and
iii)he did not tell his whole story to the person helping him but just told him the detail about the injuries the police inflicted on his back;
h)it further put to the applicant that in his statement he claimed he obtained his passport after the events of 2006, however, the date in his passport indicates he had held it since 2005. The applicant said he did not bribe anyone to help him obtain his passport but paid a local policeman who had bought his property to go to the travel agent for him so he could secure an Australia visa; and
i)he claimed that just coming to Australia will increase the authorities’ suspicion of him.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found the applicant to be an unreliable witness and found his explanation as to why there were so many significant discrepancies between his written and oral claims to be inconsistent and unconvincing, noting that, having started out trying to pass himself off as a Falun Gong practitioner, he said at the hearing that he was not a Falun Gong practitioner and indicated he did not know any of the exercises;
b)in light of this, the Tribunal did not accept he had any relevant, negative profile with the authorities in China, was placed on reporting conditions, that his family have been monitored, or that he or his wife lost their jobs or had to sell their property for any reasons relevant to his application for protection. Further, although the applicant demonstrated marks or signs of injuries on his back, the Tribunal did not accept that he sustained them in circumstances relevant to the Convention;
c)based on the inconsistent evidence before it, the Tribunal did not accept that when obtaining his visa for Australia the applicant took measures to mislead the Chinese authorities for any relevant reason; and
d)the applicant claimed that his visit and stay in Australia might potentially draw adverse attention from the Chinese authorities, however, the Tribunal did not regard this as conduct that engaged s.91R(3) of the Act. Further, it did not accept that his attempt to remain in Australia would cause him to be persecuted upon his return, noting that it did not accept that he has a “black” record as claimed and, as a result, there was nothing relevant or significant which his time in Australia would compound.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)I was denied procedural fairness in connection with the making of the decision.
(2)It is not reasonable for the Tribunal to point out that I was not a Falun Gong practitioner.
(3)The member of the Tribunal did not ask proper questions in relation to my claims for a protection visa.
In his written submissions the applicant also raised additional grounds concerning an alleged breach by the Tribunal of obligations under s.420 of the Act as well as the Tribunal’s alleged failure to appreciate his true claim and an allegation that the Tribunal had erred in its findings.
Denial of procedural fairness
The first allegation set out in the application is not particularised and, as a result, lacks substance. The Tribunal’s procedural obligations are set out in div.4 of Pt.7 of the Act and a consideration of the way the Tribunal went about its task does not disclose any failure on its part to observe the requirements of that part of the Act.
Unreasonableness on the part of the Tribunal
The second ground pleaded in the application is also not particularised.
In relation to this ground, it should be said at the outset that the Tribunal’s decision was not one to which the Wednesbury test of unreasonableness may be applied. Once the Tribunal concluded that it was not satisfied that the applicant did not meet the criteria for the grant of a protection visa, s.65 of the Act required it to affirm the delegate’s decision. That is to say, there was no discretionary element in the Tribunal’s ultimate decision which might be reviewed according to the principles articulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.
Secondly, the applicant has pointed to no discretionary decision taken by the Tribunal during the course of its review which was so unreasonable that no reasonable Tribunal could come to it.
Really, it seems that the applicant is complaining about the conclusions which the Tribunal reached as part of its decision making process. However, that invites the Court to review the Tribunal’s findings of fact which it is not empowered to do. All the Court may do in judicial review proceedings is to declare and enforce the law as it applies to the Tribunal. It cannot embark on a fresh consideration of the facts. The determination of the facts relevant to a matter is a task reposed in the Tribunal and if, acting within the law, it arrives at an incorrect finding of fact, that is not a matter reviewable by the Court.
Failure to ask proper questions
The third ground pleaded in the application also seeks to challenge the Tribunal’s factual findings by seeking review of the method by which the Tribunal obtained the information on which at least some of those findings were based. What the applicant is really saying is that the Tribunal should have asked questions which were different from or additional to the questions which it did pose to him during the course of its hearing. However, as already observed, the fact-finding function is one reposed in the Tribunal and the Court cannot review its exercise except in very limited circumstances such as where bias is alleged. No such allegation was made here.
Written submissions
The applicant has argued in his written submissions that the Tribunal failed to consider whether he would continue to practise Falun Gong in China and would face persecution as a result. However, it should be recalled that the applicant is recorded as having told the Tribunal that he had not practised Falun Gong since 1999 and that his concern was that he would be wrongly considered by the Chinese authorities to be a Falun Gong follower when he had actually disavowed such involvement when he went to Tianjin in December 2006. Quite properly, the Tribunal found that the applicant was not a Falun Gong follower and concluded from the inconsistencies in the different versions of events provided by him that he could not be believed. That is to say, neither of his versions of why he claimed to fear persecution in China, including that he was, and by implication would continue to be, a Falun Gong practitioner were believed.
Today the applicant said that he had never actually stopped the private practice of Falun Gong, just its public political expression. He said the Tribunal failed to appreciate this. However, there is nothing in the Tribunal’s decision record to confirm that the applicant made such factual allegations and no challenge has been made to the accuracy of the decision record. Consequently, there is no basis to conclude that the Tribunal proceeded on an incorrect appreciation of the facts, even were that to be a basis on which its decision could be set aside.
The applicant’s written submissions also asserted that the Tribunal had made an error in its findings with the result that its decision was not in his best interests. The Tribunal’s role is not to make a decision in an applicant’s best interests but to determine whether he or she meets the criteria for the grant of a protection visa. As to any error in its findings, this appears to be another challenge to the Tribunal’s factual conclusions which, for the reasons already given, does not amount to a proper basis for review in judicial review proceedings.
Generally
More generally, the applicant alleges that the Tribunal failed to comply with s.420 of the Act and that because of this its decision is affected by jurisdictional error. However, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 makes it clear that the Tribunal’s decision is not reviewable on the ground that the Tribunal failed to observe procedures required by s.420.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 March 2009
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