SZNFD v Minister for Immigration
[2009] FMCA 821
•28 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 821 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNFD”. |
| Migration Act 1958 (Cth), ss.91R(3), 424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 |
| Applicant: | SZNFD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 238 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 2 February 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 238 of 2009
| SZNFD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a married woman from Henan province, the Peoples’ Republic of China. She claims that she was introduced to Falun Gong in 1996 which helped her health. After it was banned in China in 1999 her husband forbade her to practice at home. She practiced Falun Gong at a friend’s house until 2008 when the police discovered them there. She was detained at the local police station for a day and taken to a detention centre where she claims she was mistreated. A week later, the applicant’s husband paid a bribe, she was released on bail and made to sign an undertaking that she would not continue practicing Falun Gong.
At the hearing before the Refugee Review Tribunal (“the Tribunal”) on 18 November 2008, the applicant presented more evidence. She had copies of hospital records, an arrest warrant from her detention and several statements of support from Falun Gong members. The Tribunal member indicated to her at the hearing that he wished to authenticate the hospital records with the Australian Embassy in Beijing and with the doctor who treated her. The applicant said the doctor would confirm his report.
On 25 November 2008, the Tribunal wrote to the applicant inviting her comment on information it considered would be the reason, or a part of the reason, for affirming the delegate’s decision. The information the Tribunal had was that the doctor and examiner the applicant gave were not employed by the hospital. Furthermore, the hospital confirmed no record of the applicant as an in-patient during the dates given, neither was the admission number given correct. The applicant responded by letter dated 23 December 2008 that her family had informed her that the doctor’s name was an alias and her records were hidden because the medical staff were fearful of treating a Falun Gong practitioner released from detention. Also that the operations performed on her were privately arranged with the doctor and no admission formalities were completed.
The applicant arrived in Australia on 21 June 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 3 July 2008. A delegate of the first respondent refused to grant the visa on 13 September 2008 and the applicant was notified of the decision and her review rights by letter dated 13 September 2008. The applicant applied to the Tribunal for review of the delegate’s decision on 24 September 2008.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence in this matter. The Tribunal’s decision (RRT) case number 0806165 of the Tribunal member, Hugh Wyndham dated 5 January 2009 (CB 158-165) is the decision before this Court for judicial review.
The Tribunal’s findings
In setting out the following summary of the Tribunal’s decision, I have paraphrased or quoted directly from the written submissions of Mr Reilly, counsel for the first respondent. I have not made any further direct attribution as this would make the summary unwieldy. The summary is provided to assist in understanding the nature of the application and not to establish any evidentiary point.
The Tribunal found that the applicant was not credible and had fabricated her story (Court Book (“CB”) 163 at [33]). It noted that her response to the Tribunal’s letter under s.424A of the Migration Act 1958 (Cth) (“the Act”) had not explained why:
a)The hospital where she claimed she was treated had no record of an ultrasound specialist, which was in her original alleged hospital records;
b)She was now claiming two brief separate hospital admissions but had originally mentioned one extended stay;
c)Her claim that she had been treated twice without the hospital administration’s knowledge was implausible; and
d)None of the documents submitted by the applicant’s friends referred to her external injuries.
The Tribunal concluded that the applicant was not a Falun Gong practitioner or was ever detained for that reason. Based on her departure from China using her own passport, it also concluded that she was not of interest to the Chinese authorities. The Tribunal disregarded the applicant’s Falun Gong practice in Australia pursuant to s.91R(3) of the Act.
Consideration
At the first Court date directions hearing, the applicant indicated a desire to participate in the Court-sponsored legal advice scheme and arrangement for provision of that advice was made by the Court registry. The panel advisor indicated that the applicant attended a conference and was provided with written advice. I also granted her leave to file an amended application but the applicant did not avail herself of this opportunity. A further order was made for the applicant to file written submissions 14 days prior to the hearing but this was not complied with. When the applicant was invited to make oral submissions, no substantial statement was forthcoming.
Grounds of review
1. I am a Chinese citizen and I am a genuine Falungong member. I have been practicing for years and I have been warned by my local security and company to be put in prison if I continue this activity.
2. I can not stop practicing Falungong since it has helped a lot with my health condition. I cannot go back to China since I am very scared to be sentenced.
3. I have been actively practicing Falungong since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since they came to my home twice and asked where I am about.
In the absence of any particulars or submissions this application appears to be nothing more than a request for an impermissible merits review which is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at [31] where their Honours stated:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision. Judicial review asks whether the decision maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision that could have been made under the circumstances. Merits review provides a complete rehearsal of all the issues relevant to the application by reviewing all relevant material previously presented, as well as any new evidence.
As has been explained on numerous occasions in SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 and NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 and the Full Federal Court in NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354, the Court cannot engage in merits review. An application for a review of the Tribunal decision is not a hearing de novo. The finding of fact is within the jurisdiction of the Tribunal and not this Court. Nor is there an error in law in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137].
The applicant appears as a self-represented litigant with the assistance of a Mandarin interpreter. She seemed to rely on an unidentified third party to prepare her application and it was apparent that the applicant had little or no understanding of the grounds pleaded in her application or the issues before the Court. The Tribunal stated in its “Findings and Reasons” at [32]:
After carefully considering all the material submitted by the applicant and her written and oral claims, I have come to the conclusion that the applicant has fabricated her story and I do not accept it as truthful. (CB 163)
The Tribunal focused on the applicant’s claim of hospitalisation (absent in the original application but during the Tribunal hearing of 18 November 2008) for treatment which she claimed she sustained when she was in police custody. On 25 November 2008, the Tribunal wrote to the applicant inviting comment on this information as it considered that her claim of having been detained and mistreated was false. The Tribunal considered that no weight should be given to this claim or to the documents submitted in support of the alleged hospitalisation. In response, the applicant submitted 28 pages of documents which included hospital receipts for payment of unspecified medical expenses and statements of support from her husband, niece and three friends. The information supplied contained a number of inconsistencies which led the Tribunal to form the view that the applicant was not a credible person.
The Tribunal’s adverse credibility finding and consequent rejection of an applicant’s claim is a matter for the Tribunal par excellence, see Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]:
…a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
I am satisfied that the Tribunal’s finding in this respect was open to it on rational grounds and on the material before it. It discloses no error in the treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal decision is the only evidence before the Court in relation to the conduct of the hearing. The reasons indicate that the concerns the Tribunal had about aspects of the applicant’s evidence were raised with her during the hearing and in its subsequent letter under s.424A of the Act. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that she was not credible.
Conclusion
I am satisfied that none of the grounds pleaded in this application identify jurisdictional error. Neither it is apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in rejecting the applicant’s application for a Protection visa. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 28 August 2009
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