SZNWB v Minister for Immigration

Case •

[2009] FMCA 1202

•

26 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWB v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1202
MIGRATION – VISA – Protection (Class XA) visa – Refugee Review Tribunal – application to review decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – citizen of China claiming well founded fear of persecution on the ground of being a Falun Gong practitioner – credibility – privative clause – no reviewable error.
Migration Act 1958 (Cth) ss.65, 91R, 424A, 424AA, 425, 474
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, [2000] HCA 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33
Applicant: SZNWB
Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2051 of 2009
Judgment of: Scarlett FM
Hearing date: 26 November 2009
Date of Last Submission: 26 November 2009
Delivered at: Sydney
Delivered on: 26 November 2009

REPRESENTATION

Applicant: Appeared in person
Counsel for the Respondent: Mr Healey
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2051 of 2009

SZNWB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Applicant is a citizen of China who asks the Court to review a decision of the Tribunal made on 27th July 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.

  2. The Applicant seeks orders, in the nature of certiorari & mandamus, asking the Court to set aside the Tribunal decision and remit his application for a visit to the Tribunal for reconsideration according to law.  It has been explained to the Applicant that in order to make orders of that nature the Court would need to be satisfied that the Tribunal decision is effected by jurisdictional error.  (See Plaintiff S157/2002 v Commonwealth of Australia[1].)

    [1] (2003) 211 CLR 476; [2003] HCA 2

Background

  1. The background to this matter is that the Applicant arrived in Australia on 21st November 2008. On 31st December 2008 he applied for a Protection (Class XA) visa. In a statement submitted with his application, the Applicant claimed that he started to practice Falun Gong in February 1994.  He did this to deal with rheumatism which he had been suffering in his legs.  He claimed that in 1995 he started to work at a construction company and, whilst the work was hard, when he was not working he was able to get together with other Falun Gong practitioners.

  2. Unfortunately, the Chinese Communist Party started to prosecute Falun Gong practitioners on 20 July 1999 and many people were arrested.  The Applicant described how he was arrested in his statement:

    On 21 June 2000, I was arrested by 3 plain clothes police when I was on the way home from the construction site.  I thought it was a robbery, but after they explained, I knew my secret of being a Falun Gong practitioner was exposed. Those 3 police are from the Haerbin Police Station. They kept me at Haerbin Yaziquan Second Detention centre until 27 June 2000. Then, they transferred me into Wanjia work camp.[2]

    [2] See Court Book at pages 28-29.

  3. The Applicant described in his statement how he was kept in the work camp and was forced to undergo brainwashing and was required to sign a declaration promising not to practice Falun Gong in the future.  About two months later, on the 7th November 2001, he was released.

  4. The Applicant claimed that he decided to leave; however, he could not get a passport because he was a Falun Gong practitioner. He described what happened:

    So I bribed an officer to get a passport on 25 April 2006. But my name is on the list of banned foreign travel, I could not apply a visa to go to Australia.[3]

    [3] See Court Book at page 30.

  5. The Applicant claimed that he bribed the police officer to apply for another passport in another name. Eventually, he obtained a visa – on 5th November 2008 – so he finalised his small business and left China on 20th November 2008.

  6. The Department of Immigration and Citizenship wrote to the Applicant, on 12th February 2009, inviting him to attend an interview with an officer of the Department on Tuesday, 10th March 2009.  The Applicant did not attend the interview. On 11th March 2009, the Department of Immigration and Citizenship wrote to the Applicant notifying him that his application for Protection (Class XA) visa had been refused. 

  7. In the Protection (Class XA) visa decision record the Minister’s delegate noted that the Applicant did not attend the scheduled interview and set out reasons as to why the claim for a visa had been refused:

    The applicant has provided extremely little detail regarding his claim of practising Falun Gong. He has stated that he was detained on one occasion in 2000 – 2001. However, in failing to attend the interview, I have been unable to test the assertions made by the applicant in regards to his claims and to be satisfied with the veracity of this claim. I am not satisfied that the applicant was detained as claimed.  I am not able to be satisfied that he has a fear of Convention-related persecution in China as claimed, or that he is a person to whom Australia has protection obligations.[4]

    [4] See Court Book at page 71.

  8. The delegate also considered the circumstance of the Applicant’s leaving China and found that, even if the delegate were to accept that the Applicant had come to the adverse attention of the authorities previously, the fact that he was able to obtain a passport and apply for a visa and leave China showed that the authorities were no longer interested in him.

Application to the Refugee Review Tribunal

  1. After his application for a protection visa was refused, the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The application was received by the Tribunal on 16th April 2009. The Applicant nominated his migration agent to receive correspondence on his behalf. He did not provide any additional information with the application for review.

  2. On 20th May 2009 the Tribunal wrote to the Applicant inviting him to attend a hearing of the Tribunal to give evidence and present arguments relating to the issues arising in his case.  The hearing was scheduled for 7th July 2009. The Applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language.  He had produced to the Tribunal at the hearing a copy of his passport issued by the People’s Republic of China. The Tribunal made its decision on 27th July 2009, refusing the application for a protection visa.

  3. The Tribunal, in its decision, set out – under the heading Claims and Evidence – the details of the Applicant’s application for a visa, his typed statement in support of the application, and a lengthy summary of the evidence given at the hearing. The Tribunal also referred to Independent Country Information about Falun Gong and its principles and practices, and also on leaving China and entering Hong Kong from mainland China.

  4. The Tribunal set out how the Applicant was asked about his knowledge of Falun Gong and the Applicant knew that there were five main Falun Gong exercises although he could not remember their names. The Tribunal named the five exercises, which are: 

    i)Buddha showing a Thousand Hands.

    ii)Falun Standing Stance. 

    iii)Penetrating the Two Cosmic Extremes. 

    iv)Falun Heavenly Circuit.

    v)Strengthening Divine Powers.

  5. The Tribunal asks the Applicant to demonstrate the fourth exercise, Falun Heavenly Circuit, and the Applicant stated that he was not very familiar with that exercise because he had been distributing leaflets and he had not done much exercise. The Tribunal then went further to ask the Applicant about his knowledge of the exercises. At paragraph [57] of the decision record, the Tribunal said:

    The Tribunal asked the applicant whether he could demonstrate to the Tribunal any of the five exercises that he had just mentioned. The applicant stood up and made no more than one movement with an arm.  The Tribunal asked which exercise that was.  The applicant said he did not know which one it belonged to. The Tribunal indicated that it was not of much use. He indicated that he did not know the name of the exercise he was performing.[5]

    [5] See Court Book at pages 111-112.

  6. The Tribunal set out how it put certain information to the Applicant at the hearing. The Tribunal described in the decision record what was said, at [64]:

    The Tribunal said words to the following effect: 

    Remember at the beginning of the hearing I told you I may put to you any information that I may consider would be the reasons for affirming the decision.  I will explain to you the consequences of the information and I’m going to invite you to comment on or respond to the information.  If you cannot provide an acceptable response, you may not be provided with a protection visa.  You may respond to the information orally by giving your answer or comments or in writing, sometime later.  You can seek additional time to comment on or respond to the information. 

    I will go through the information with you so you can tell me if you want to respond now or in writing later. The applicant stated that he wanted to respond now, today.[6]

    [6] See Court Book at page 112 at [64].

  7. The Tribunal then set out a number of pieces of information and recorded the Applicant’s comments in reply. 

Tribunal’s Findings and Reasons

  1. In its findings and reasons, the Tribunal found that the Applicant was a national of the People’s Republic of China, based on the receipt of his passport from that country. However, the Tribunal was critical of the Applicant’s lack of knowledge of Falun Gong. The Tribunal referred to the Falun Gong exercises and made these comments:

    The Tribunal finds that the Applicant was unable to demonstrate any of the five main Falun Gong exercises at the hearing, and the limited movement that he displayed at the hearing could not be attributed to any of the five main exercises.

    As a result of its findings, the Tribunal finds that the applicant is not a credible witness. 

    The Tribunal finds that the applicant changed his claims at the hearing because he was aware that he could not show any proficiency in demonstrating the exercises, so he stated he distributed pamphlets and helped people to know about Falun Gong, rather than being a person who practised the exercises.[7]

    [7] See Court Book at page 121.

  2. The Tribunal found that the Applicant was never a Falun Gong practitioner in the People’s Republic of China and did not accept any of the Applicant’s claims about matters that arose from being a Falun Gong practitioner.

  3. Regarding the Applicant’s claims of involvement in Falun Gong in Australia, including the distribution of Falun Gong materials, the Tribunal disregarded that conduct pursuant to s.91R(3) of the Migration Act. The Tribunal found that the Applicant would not practice Falun Gong on return to the People’s Republic of China and found that he would not be involved in any political activities or other conduct that would expose him to Convention-related harm if he were to return to China.

  4. Thus, the Tribunal was not satisfied that the Applicant faced a real chance of persecution if he were to return to China at the time of the hearing or in the foreseeable future. 

  5. Accordingly, the Tribunal affirmed their decision not to grant the Applicant a Protection (Class XA) visa.

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court on 25th August 2009 by filing an application and an affidavit in support.  His affidavit annexes a copy of the Tribunal decision and sets out these matters:

    i)  I do not want to go back to China.

    ii) The decision of Refugee Review Tribunal is attached.

  2. The application, as I have indicated previously, seeks orders setting aside the Tribunal decision and remitting the Applicant’s application for a protection visa to the Tribunal for determination according to law.  The Applicant relies on three grounds in his application:

    i) The making of the decision was an important exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

    ii) There was no evidence or other material to justify the making of the decision.

    iii) The decision involved an error of law.

  3. The Applicant did not file a written outline of submissions, but has attended the hearing today and was given the opportunity to make oral submissions in support of his case. He told the Court that he was a Falun Gong practitioner but the Refugee Review Tribunal did not believe him.  That was what he wanted to complain about. He told the Court further that he wanted to argue that point with the Refugee Review Tribunal. He wanted to tell the Tribunal that he was just a beginner at Falun Gong. In answer to a question from the bench the Applicant said that he had told that fact to the Tribunal beforehand.

  4. Mr Healey of counsel appeared for the Minister. A comprehensive outline of written submissions was filed on 19th November 2009, and Mr Healey made oral submissions in answer to what the Applicant told the Court.  He drew the Court’s attention to the fact that the Tribunal had found that the Applicant was not a credible witness and pointed out the question of credibility was a matter for the Tribunal as a finding of fact par excellence.

  5. Referring the Court to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[8].  He noted that the Applicant had complained to the Court about a wrong finding of fact and pointed out that a wrong-finding fact is not an error of law let alone a jurisdictional error unless there was no evidence to justify making of such a finding. (See Australian Broadcasting Tribunal v Bond[9]).

    [8] (2000) 168 ALR 407, [2000] HCA 1 at [67]

    [9] (1990) 170 CLR 321, [1990] HCA 33

  6. He also submitted that the Applicant had made no complaint about the procedure of the Tribunal. In respect of the Applicant’s three grounds, Mr Healey submitted that the first purported ground is not a recognised ground at all, even if it may be relevant to the exercise of the Court’s discretion to grant relief.

  7. The second ground, which he characterised as a no-evidence ground, he dealt with on the basis that in order for that ground to succeed the Applicant would have to show that there was absolutely no evidence or other material before the tribunal on which the decision could be based.  That proposition, he submitted, was clearly untenable.

  8. He also pointed out, correctly, that the third ground – being error of law – would only be open to the Applicant if the error of law was a jurisdictional error but, in this case, there was no particularisation of any error of law.  Thus, he submitted, the Applicant’s three grounds of review must fail.

  9. The first ground appears from time to time in applications to this Court.  It says:

    The making of the decision was an important exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

    That statement does not allege any jurisdictional error.  It is just a bland statement and, more or less, a meaningless one.  It is not a ground of review.

  10. The second ground claims:

    There was no evidence or other material to justify the making of the decision.

  11. Mr Healey of counsel has characterised it as a no-evidence ground on the basis that the Applicant is complaining that there was no evidence upon which the Tribunal based its factual findings. Clearly, if the Tribunal makes findings of fact without evidence, then an error would arise. The primary finding of fact by the Tribunal in this case is its decision on the credibility of the Applicant. The Tribunal set out, in its decision, why it found that the Applicant was not a credible witness and those reasons can be found in the Tribunal decision record at [106] through to [114]. There was evidence upon which the Tribunal could make its findings of fact.

  12. It may well be argued that the Applicant’s second ground, claiming there was no evidence or other material to justify the making of the decision, is a claim that the Tribunal needs to produce evidence to refute or rebut the Applicant’s factual claims.  This is not a ground of review.  The Tribunal is not required to produce evidence to rebut the Applicant’s claims. 

  13. Section 65 of the Migration Act requires any applicant for a visa to satisfy the Minister or, in this case, the Tribunal standing in the shoes of the Minister, that the applicant meets the requirements for a particular visa. The Tribunal, in this case, must be affirmatively satisfied that the Applicant meets the requirements for a protection visa. If the Tribunal is not so satisfied, then the application will not succeed. But the Tribunal does not need to produce any evidence of its own rebutting or refuting any of the Applicant’s factual claims.

  14. The third ground claims that the Tribunal decision involved an error of law.  No error of law is particularised. All that the Applicant has claimed in his oral submissions is that he does not agree with the Tribunal decision and wants to go back to the Tribunal to argue it again. In particular, he wishes to argue before the Tribunal that he was only a beginner at Falun Gong and, presumably, therefore, could not be expected to know the Falun Gong exercises in any detail. Of course, that is a claim going to the factual merits of the Tribunal’s decision and merits review is not open for judicial review.

Conclusion

  1. I am mindful of the fact that the Applicant is not legally represented in these proceedings. The Court looks independently at the Tribunal decision and supporting documents in order to ascertain whether there is any breach of the Migration Act which would lead the Court to a finding of jurisdictional error. There is no breach of s.424A of the Migration Act. The Tribunal relied on the Applicant’s own evidence to the Tribunal in support of his claims and his own application for a visa. It also relied on Independent Country Information. None of that material comes within the boundaries of section 424A(1) of the Migration Act because it is excluded by section 424A(3).

  2. In any event, the Tribunal put matters to the Applicant and used the procedure set out in s.424AA of the Migration Act. The Tribunal’s decision of the way it did so, set out in paragraph [64] of the decision[10] indicates that the Tribunal followed the requirements of s.424AA very carefully. Thus, even if there was information that came within the definition of information for the purpose of s.424A of the Act, sub-section 424A(2A) of the Act would excuse the Tribunal from its obligation to give particulars of that information in the way prescribed by s.424A(1) of the Act. In any event, I am not satisfied that there was any such information so there is no breach of s.424A of the Act.

    [10] See Court Book at page 112.

  3. In my view, there is no breach of s.425 of the Act. The Tribunal invited the Applicant to attend the hearing and did so by giving him plenty of notice and sent out an invitation which complied with s.425A of the Act. At the hearing, the question of the Applicant’s credibility, particularly whether he was or was not a Falun Gong practitioner was clearly an issue. This should have come as no surprise to the Applicant because it was the Applicant’s credibility in his account of being a Falun Gong practitioner that was an issue dealt with by the Minister’s delegate in refusing the application for a visa in the first place.

  1. Thus, the Applicant could not claim to have been taken by surprise when the Tribunal dealt with the question of credibility and made a finding that it was not satisfied that he was a Falun Gong practitioner. There was no breach of s.425 of the Migration Act.

  2. In my view, no jurisdictional error has been made. In the absence of jurisdictional error, the Tribunal’s decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus in any Court in any respect. It follows, therefore, that the application must be dismissed.

  3. In the meantime, that this is an appropriate matter to make an order in favour of the First Respondent that the Applicant should pay the First Respondent’s costs.  I am satisfied that the schedule amount $5,865.00 is appropriate in the circumstances. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  10 December 2009


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