SZNGK v Minister for Immigration
[2009] FMCA 490
•22 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNGK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 490 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91R(3), 91S, 442B, 424A, 424A(1), 424A(3)(a), 424A(3)(b), 424A(3)(ba), 425, 442B, 474, pt.4 div.7, pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 |
| Applicant: | SZNGK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 416 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 May 2009 |
| Date of last submission: | 22 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2009 |
REPRESENTATION
| The Applicant appeared in person assisted by a Mandarin interpreter |
| Solicitor for the Respondent: | Mr A. Markus, Australia Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 416 of 2009
| SZNGK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 January 2009 and handed down on 30 January 2009.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 10 August 2008 having departed legally from Shenzhen on a passport issued in his own name and a subclass 456 business (short stay) visa issued on 7 August 2008.
On 8 September 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 17 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 1 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 29 January 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 February 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application.
The Applicant claimed to have commenced Falun Gong practice in December 2007 in his own home with a teacher. The Applicant claimed that, on 15 February 2008, while he and his teacher were practicing, police broke in and arrested the Applicant and his teacher. The Applicant stated that he was “beaten savagely” at the police station and thereafter tortured and harassed whilst in detention. The Applicant stated that he was released 15 days later, however, his restaurant was banned and he was required to report to police every week.
The Applicant claimed he and his family moved to another province and he continued to practice Falun Gong. The Applicant claimed that on 23 July 2008 he was again approached by Chinese authorities and warned against practicing Falun Gong.
The Delegate’s decision
On 21 October 2008, the Applicant attended an interview with the Delegate.
On 17 November 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate found the Applicant’s written claims to be inconsistent with information provided at interview. The Delegate was not satisfied that the Applicant is a genuine Falun Gong practitioner or that he was arrested and detained in China for that reason.
The Tribunal’s review and decision
On 1 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of his review application.
On 18 December 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 23 January 2009 to give oral evidence and present arguments.
On 23 January 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file and other materials available to it from a range of sources.
The Tribunal found the Applicant “completely lacked credibility”.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“10. The Tribunal further found that the applicant displayed very limited knowledge of Falun Gong.[1] The applicant's inability to perform the exercises led the Tribunal to find that he was untruthful about learning and practising the exercises in China.[2] The Tribunal did not accept that the applicant had practised the Falun Gong exercises in China or Australia and accordingly did not accept that he came to the attention of authorities in China or was perceived to be a Falun Gong practitioner.[3]
11. The Tribunal accepted that the applicant may have had contact with Falun Gong practitioners in Australia, and acknowledged that he had displayed some knowledge of Falun Gong. However, because the Tribunal rejected the applicant's claim to have been involved with Falun Gong in China, the Tribunal found that the applicant had memorised information about Falun Gong while he was in Australia. It was not satisfied that the applicant made contact with Falun Gong practitioners and acquired knowledge of Falun Gong otherwise than for the purpose of strengthening his claims to be a refugee and accordingly disregarded this conduct pursuant to s 91R(3) of the Migration Act 1958 (Cth).[4]”
[1] RD 83
[2] RD 83
[3] RD 83-84
[4] See RD 84
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 9 March 2009 the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. The Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. No further application, evidence or submissions were filed by or on behalf of the Applicant.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services. The Applicant has participated in the Court’s legal advice scheme and received advice.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that he wished to continue with his application.
At the commencement of the hearing, the Applicant confirmed that he had filed no further application, evidence or submissions in support of his application. The Applicant confirmed that he relied on the grounds contained in the application filed on 23 February 2009 as follows:
“1. I was persecuted by Chinese government. I told the truth, but RRT did not believe me. RRT considered my case unfairly.
2. If I go back to China, I will be exposed to the risk. RRT did not take into account my situation in China.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally.
Grounds
Ground 1 makes the bare assertions that the Applicant was persecuted by the Chinese government; he told the truth but was not believed; and that the Tribunal considered his case unfairly.
Ground 1 was unsupported by particulars, evidence or submissions. The Court asked the Applicant in what way did the Tribunal consider his case unfairly. The Applicant responded that when he first came to Australia he did not bring much money, his mind was confused and he gave wrong answers to questions. He also said there were details he could not recall. The Applicant said that his confusion was the result of his financial stress.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 9 March 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure than any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on tapes of the hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Court raised with the Applicant that the Tribunal decision record did not suggest that any part of any explanation he gave to the Tribunal about his confusion included his financial stress. The Applicant responded that he had not realised the significance of his confusion and that was why he did not clarify further with the Tribunal that he also had financial stress.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims and explored those claims with him at the hearing in great detail. A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant matters of concern that it had arising from his evidence and noted the Applicant’s explanations and responses. In particular, the Tribunal explored with the Applicant his knowledge of Falun Gong and its exercises as well as the circumstances in which the Applicant was able to leave China.
The Tribunal noted that it informed the Applicant on more than one occasion that there were many inconsistencies in his oral evidence and written claims which may cause the Tribunal to find that he was not truthful and that he had no involvement with Falun Gong. The Tribunal noted that the Applicant said that the inconsistencies were due to his memory and that his memory was bad. A fair reading of the Tribunal’s decision record makes clear that the Tribunal carefully considered the Applicant’s explanation about his nervousness and confusion. However, the Tribunal was not persuaded that inconsistencies in the Applicant’s evidence were as a result of the Applicant’s confusion or forgetfulness or nervousness. Rather, the Tribunal found that the inconsistencies were part of the reasons for the Tribunal’s adverse credibility findings in respect of the Applicant.
The Tribunal found that the Applicant “completely lacked credibility”, had been “untruthful in his evidence” and had fabricated his claims of being a Falun Gong practitioner in China. The Tribunal found that the Applicant “displayed very limited knowledge about Falun Gong” and his lack of familiarity with the exercises was inconsistent with his claims that he had learned the exercises almost 12 months ago and had been performing them almost daily until two months before the Tribunal’s hearing.
The Tribunal comprehensively rejected the Applicant’s claims of ever having been a Falun Gong practitioner in China or ever having practiced Falun Gong exercises in China or Australia. The Tribunal found that the Applicant did not have an interest in Falun Gong and rejected his claim of ever having come to the attention of authorities in China for that reason. The Tribunal rejected all the Applicant’s claims in China including his allegations of detention and mistreatment by Chinese authorities.
The Tribunal found that the extent to which the Applicant was able to perform any of the exercises, he had memorised such information since being in Australia. The Tribunal accepted that the Applicant may have had contact with Falun Gong practitioners in Australia. However, the Tribunal was not satisfied that any information acquired by the Applicant in Australia about Falun Gong or any contact in Australia with Falun Gong practitioners was not for any purpose other than to strengthen his claims of being a refugee. Accordingly, a fair reading of the Tribunal’s decision record makes clear that the Tribunal, as it stated, disregarded such conduct in considering whether or not the Applicant had a well-founded fear of persecution for a Convention-related reason. In doing so, the Tribunal complied with s.91R(3) of the Act.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
If the Applicant’s complaint that the Tribunal did not consider his case fairly was intended to be an allegation of a breach of procedural fairness, the Tribunal’s obligations of procedural fairness are limited, pursuant to s.442B of the Act, to compliance with the requirements of Part 4 of Division 7 of the Act. There is no evidence before this Court to suggest that the Tribunal did not discharge its obligations in accordance with Part 4 and Division 7 of the Act.
The Applicant was invited to attend a hearing in accordance with s.425 of the Act, which he did. The reasons why the Tribunal rejected the Applicant’s claims were based entirely on the evidence and information given by the Applicant to the Tribunal for the purposes of his review and certain country information. Such information is excluded from the obligations of s.424A by reason of ss.424A(3)(a), 424A(3)(b) and 424A(3)(ba).
The inconsistencies found by the Tribunal to exist in the Applicant’s evidence are no more than the Tribunal’s evaluation of the evidence and materials before it. Those thought processes do not enliven the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [18]). Further, there was no other “information” before the Tribunal that, in its terms, constituted a rejection, denial or undermining of the Applicant’s claims.
Paragraph 2 of the Applicant’s grounds makes no assertion of error capable of review by this Court.
Otherwise, the Applicant’s allegations and complaints made in the grounds of his application and in support of his application generally are no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints and allegations invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J).
Accordingly, the grounds of the application are not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant and explored those claims with the Applicant at a hearing. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
Accordingly, the application should be dismissed with costs.
I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 22 May 2009
0
6
2