SZNNX v Minister for Immigration - [2009] FMCA 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNX v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 863

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; 91S; 422B; 424A(1); 424A(3)(a); 424A(3)(b); 424A(3)(ba); pt.7 div 4; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412
SZNAV v Minister for Immigration and Citizenship [2009] FMCA 693
Minister for Immigration and Citizenship vSZNAV [2009] FCAFC 109
Minister for Immigration and Citizenship vSZKTI [2009] HCA 30

Applicant:

SZNNX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1050 of 2009

Judgment of:

Emmett FM

Hearing date:

26 August 2009

Date of Last Submission:

26 August 2009

Delivered at:

Sydney

Delivered on:

7 September 2009

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Mr R. Baird, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1050 of 2009

SZNNX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 26 March 2009 and handed down on 26 March 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 and his wife arrived in Australia on 10 October 2008 having departed legally from Shanghai on a passport issued in his own name and a tourist visa.
On 31 October 2008, the Applicant and his wife lodged applications for protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”) under the Act. The Applicant’s wife visa was dependant on the outcome of the Applicant’s protection visa application.
On 1 December 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s and his wife’s applications for protection visas.
On 30 December 2008, the Applicant and his wife lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 26 March 2009, the Tribunal affirmed decision of the Delegate not to grant protection visas.
On 1 May 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The wife of the Applicant is not included in the application for judicial review.

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, 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 claims for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by the Chinese authorities for his practice of Falun Gong. The Applicant claimed his parents began practicing Falun Gong in 1996 and were arrested in June 2002. He claimed the authorities tortured his parents and detained his mother for one year and his father for eight months. The Applicant claimed his parents were again arrested in September 2005 for one year and when he inquired as to why stated that he was told by police that he too would be jailed.
The Applicant claimed he had difficulty in China maintaining employment as he would be dismissed when employers found out his parents were Falun Gong practitioners.
Following his parents release in September 2006, the Applicant claimed they were worried he too would be jailed and bribed a government official to issue passports for the Applicant and his wife so they could travel to Australia.
On 13 November 2008, the Delegate wrote to the Applicant, noting his wife’s inclusion in the protection visa application, inviting the Applicant to attend an interview with the Delegate on 1 December 2008 and requesting the Applicant confirm his intention to attend prior to the date of the interview. The Applicant did not confirm his intention to attend this interview or attend the interview on 1 December 2008.
On 1 December 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 proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 18 May 2009, the Applicant attended a directions hearing before this Court. The Court explained to the Applicant that his grounds as presently drafted did not disclose any error capable of review by this Court. The Court also explained to the Applicant that it was not the Court’s role to reconsider his claims and make different factual findings or reach different conclusions. The Court explained to the Applicant that the only issue before it was whether or not the decision of the Tribunal is affected by a legal mistake that goes to its jurisdiction. The Court further explained to the Applicant the consequences that may flow to him if he was unsuccessful and provided him with a copy of the costs schedule of the Court. At his request, the Applicant 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 and written submissions in support of his application.
No further documents were filed by or on behalf of the Applicant either in accordance with the Court’s direction or otherwise.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services.
At the commencement of the hearing the Applicant confirmed that he relied on the grounds contained in an application filed on 1 May 2009 as follows:
“1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
2. I am entitled to a protection visa.
3. I meet the refugee criteria because I face a risk of being jailed if I return to my original country.”
Plainly, none of the grounds of the application identify any error on the part of the Tribunal capable of review by this Court.
The Applicant made no meaningful or relevant submissions in support of his application, save to say that he had told the truth to the Tribunal.
On 2 February 2009, the Tribunal wrote to the applicants informing them 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 applicants to attend a hearing on 11 March 2009 to give oral evidence and present arguments.
On 11 March 2009, the Applicant attended the Tribunal hearing and gave evidence. The Tribunal noted in its decision record that the Applicant indicated his wife was ill and unable to attend the hearing. The Tribunal hearing was conducted with the assistance of a Mandarin interpreter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources. The applicants provided further documents in support of their application.
The Tribunal explored the Applicant’s written claims with him at the hearing. The Tribunal then put to him a number of concerns it had with his claims that the Tribunal told him may affect his credibility, including the following:
a)The Tribunal asked the Applicant why in his written statement he mentioned only that the police threatened him whereas at the hearing he had said he was under surveillance and had to report to police. The Tribunal noted the Applicant’s response that he was in a hurry when writing his statement and that he may have included that information to the international student who was assisting him with his protection visa application but that the student did not include it. The Tribunal noted that it put to the Applicant that this explanation was in contrast to his previous evidence that his statement had been read back to him in his dialect.
b)The Tribunal explored with the Applicant why he left his infant daughter in China and noted his response that his intention was that he and his wife would come to Australia and afterwards they would bring their daughter to Australia. The Tribunal put to the Applicant that it was difficult to believe that if his parents were still active Falun Gong practitioners under surveillance and had been detained on two prior occasions, he would leave his baby daughter with them while he and his wife came to Australia. The Tribunal noted the Applicant’s response that “they were desperate”.
c)The Tribunal put to the Applicant its concerns about his travel to Singapore and Malaysia for holidays in 2008 where he did not seek protection and returned to China. The Tribunal noted the Applicant’s response that in Singapore he was told there was no way of seeking protection and that he could not find any Falun Gong practitioners to ask. He also stated that he did not think of seeking protection in Malaysia.
d)The Tribunal put to the Applicant that he claimed his employment was affected by his parents practising Falun Gong, yet his employment record indicated that he had been employed for approximately 18 months before he left China to August 2008. The Tribunal noted that the Applicant’s response that he had been able to obtain a job until it was discovered that his parents had been detained for being Falun Gong practitioners, whereupon he was dismissed.
e)The Tribunal put to the Applicant that his father was able to obtain employment despite the Applicant’s allegation that he was a known Falun Gong practitioner. The Tribunal noted the Applicant’s response that his father had obtained employment through connections.
f)The Tribunal put to the Applicant that it was surprising that he was able to leave China through “normal channels”, if he was under surveillance for being a suspected Falun Gong practitioner or supporter and that independent country information indicated that Chinese authorities checked all outgoing passengers against alert lists which operated at airports.
g)The Tribunal put to the Applicant that he was able to leave China on 2 occasions without interference and that, in the circumstances, caused the Tribunal to question whether he was under question for being a suspected Falun Gong practitioner. The Tribunal noted the Applicant’s response that perhaps the people assisting him had helped.
The Tribunal noted with particularity the country information to which it had regard, including country information in relation to the targeting of family members of Falun Gong practitioners.
The Tribunal noted that, at the end of the hearing, it asked the Applicant if there was anything further he wished to add and noted his response that he hoped Australia had sympathy for him and his family.
Following the hearing, the Tribunal noted that it received a statement from the Applicant’s wife dated 18 March 2009 that generally corroborated the Applicant’s claims.
The Tribunal found the Applicant’s evidence to be “inconsistent with independent country information and implausible amounting to a fabrication.”
The Tribunal was not satisfied by explanations provided by the Applicant in respect of matters of concern that it put to the Applicant about his claims. The Tribunal also found that the Applicant’s conduct in holidaying in Malaysia, and whilst there not enquiring as to the possibility of protection, indicated that the Applicant did not hold a genuine fear of persecution because of the alleged activities of his parents. The Tribunal comprehensively rejected the Applicant’s claims that his parents had been arrested or that the Applicant and his parents had been under surveillance for being Falun Gong practitioners.
There was no transcript of the Tribunal hearing provided to this Court, neither 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 18 May 2009, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing; however, no step was taken by the Applicant to rely on 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 Tribunal’s findings were open to it on the evidence and materials 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).
There was no information relied on by the Tribunal as part of its reason for affirming the decision under review which gave rise to any obligation under s.424A(1) of the Act.
Part of the information upon which the Tribunal relied in affirming the decision under review was information that was not specifically about the Applicant or another person and was just about a class of persons of which the Applicant is a member. That information was contained in the independent country information which the Tribunal identified and to which it had regard. It is a matter for the Tribunal the country information to which it has regard and the weight it gives such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]). Such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
Otherwise, the information which formed part of the reasons for affirming the decision under review was information given to the Tribunal by the Applicant for the purpose of his review application. Such information is also excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) and s.424A(3)(ba) of the Act.
The reasons for the Tribunal’s affirming the decision under review were based on the Tribunal’s disbelief of the Applicant’s evidence arising from inconsistencies and implausibilities that it found to exist in his evidence. The Tribunal’s evaluation and assessment of the Applicant’s credibility are part of its subjective appraisal and thought processes and are not information that enliven any obligation under s.424A(1) of the Act on the part of the Tribunal (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ).
The Tribunal complied with its obligations as set out in Part 7 Division 4 of the Act. Section 422B of the Act makes clear that Part 7 Division 4 of the Act is an exhaustive statement of the Tribunal’s obligations of natural justice (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412 at [66]-[70]).
In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. The Tribunal had regard to the relevant law in considering the Applicant’s claims and determining whether or not it was satisfied that the Applicant had a well-founded fear of persecution for a Convention related reason.
At the hearing before this Court, the Applicant sought an adjournment to consider the issue raised in the recent decision of SZNAV v Minister for Immigration and Citizenship [2009] FMCA 693 (“SZNAV”) per Raphael FM. By consent, the Applicant was given a further 7 days to file an amended application and any evidence and submissions in support of any such amended application. Directions were made that in the event no documents were filed in accordance with that order, the Court would thereafter notify the parties when its decision was ready for publication. No document has been filed by or on behalf of the Applicant within 7 days. In any event, the Full Court has now handed down its decision in Minister for Immigration and Citizenship vSZNAV [2009] FCAFC 109 which upheld the Minister’s appeal on the basis that the High Court had finally disposed of the issue in Minister for Immigration and Citizenship vSZKTI [2009] HCA 30. Accordingly, I do not propose to consider this issue any further.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 3 September 2009