SZNWX v Minister for Immigration

[2009] FMCA 1257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWX v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1257

MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of China claiming fear of persecution on the basis of religion – Falun Dafa – whether imputed Falun Dafa practitioner – credibility – no jurisdictional error.

Migration Act 1958 (Cth), ss.420, 424, 425, 474

Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham [2000] 168 ALR 407 at paragraph 67
Minister for Immigration Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

Applicant: SZNWX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2206 of 2009

Judgment of: Scarlett FM

Hearing date: 7 December 2009

Date of Last Submission: 7 December 2009

Delivered at: Sydney

Delivered on: 7 December 2009

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2206 of 2009

SZNWX

Applicant

And

MINSITER FOR IMMIGRATION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Application

1. The applicant is seeking a review of a decision of the Refugee Review Tribunal.  He is a citizen of China, who has applied for a protection visa.  On 13 August 2009, the Refugee Review 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 asks the Court to issue a writ of certiorari to quash the Tribunal decision.  He also asks the Court to make an order in the nature of mandamus to send his application back to the Tribunal for reconsideration according to law.  It has been explained to the applicant that the Court can only make orders of that nature if the Court is satisfied that the Tribunal decision is affected by jurisdictional error.

Background

1. The background is that the applicant arrived in Australia on 7 February 2009.  On 18 February 2009, he applied for a Protection (Class XA) Visa.  In his application, he gave his reasons for claiming to be a refugee.  In answer to question 41, which is:

   Why did you leave that country?

   meaning the People’s Republic of China, he said:

   Because of my religion, I am a Falun Dafa member.  I was expelled from my job.  The family all almost gone[1].

   [1] See Court Book at page 18

2. In answer to question 42, which says:

   What do you fear may happen to you if you go back to that country?

   the applicant said:

I will be in jail if I go back to China, because of my believing[2].

[2] See Court Book at page 19

1. On 24 March 2009, the Department of Immigration and Citizenship wrote to the applicant and invited him to attend an interview with a departmental officer on Tuesday 5 May 2009.  The Protection (Class XA) Visa decision record shows that the applicant did not attend the interview.  On 5 May 2009, the applicant’s application for a protection visa was refused.  In the decision record, the delegate noted that the applicant did not attend the interview.  The delegate went on to say:

   If interviewed, the applicant would have been required to satisfy me that he was a genuine Falun Gong Falun Dafa practitioner.  I therefore cannot be satisfied that he is a genuine Falun Gong Falun Dafa practitioner[3].

   [3] See Court Book at page 39

Refugee Review Tribunal

1. After his application for a visa was refused, the applicant applied to the Refugee Review Tribunal for a review of that decision.  The Tribunal received his application for review on 1 June 2009.  The applicant did not provide any other information with his application for review, except to note that his address had been changed and that he had left Sydney and was living in a country town in New South Wales.

2. The Tribunal wrote to the applicant on 19 June 2009 by registered post, inviting him to appear before a hearing of the Tribunal on 30 July 2009.  The Tribunal’s hearing record shows that the applicant attended the hearing on 30 July 2009.  He produced a copy of his passport, issued by the People’s Republic of China, at the hearing.

3. The Tribunal made its decision on 13 August 2009, affirming the decision not to grant the applicant a Protection (Class XA) Visa.  The Tribunal noted that when the applicant attended, gave evidence, with the assistance of a Mandarin interpreter, he said that he did not know what was in his protection visa application.  The Tribunal recorded the applicant’s statements as follows:

   Following the Tribunal’s introduction, the applicant said he did not know what was in his protection visa application.  He said that he had paid a friend, Mr Li Feng, $800 to arrange for the completion of the protection visa application, as well as putting in place arrangements to get a tax file number and an ABN.  He had heard nothing more.  The applicant said that he had told his friend his personal background and biodata.  The Tribunal asked him to confirm, by way of example, that the form correctly recorded his education.  The applicant said that he did not know what refugee claims had been made on his behalf.  The Tribunal expressed surprise that the applicant had not taken the trouble to at least let his friend know whether or not he was, for example, a Falun Gong practitioner[4].

   [4] See Court Book at page 60-61,27-28

4. The Tribunal went on to record the applicant’s evidence, which appeared to be different from the refugee claims made in the protection visa application.  The Tribunal noted, at paragraph 30:

   The applicant said that he fears that the PRC authorities will persecute him because his wife is a Falun Gong practitioner, and because he was arrested and detained together with her and others in October 2008[5]. 

   [5] See Court Book at page 61

5. Further on, at paragraph 33, the Tribunal recorded:

   The applicant confirmed that he is not a Falun Gong practitioner, but is at risk from the authorities because of his association with his wife[6]. 

   [6] See Court Book at page 61 para.33

6. The Tribunal then set out an account of the applicant’s evidence to the Tribunal.  In its findings and reasons, the Tribunal found that the applicant had the nationality of the People’s Republic of China, based on his recently issued PRC travel document and the photocopies pages of his PRC passport and his other documentary and oral evidence.  The Tribunal noted the applicant’s claim to fear harm from the PRC authorities arising from his wife’s Falun Gong adherence.  However, the Tribunal said that it found the applicant to be a witness of low credibility.  The Tribunal then set out its reasons as to why, from the applicant’s evidence, it had formed that view.

7. The Tribunal went on to find that it did not accept that the applicant was the husband of a Falun Gong practitioner who had been subject to adverse attention because of his imputed Falun Gong adherence and/or his association with his wife.

8. The Tribunal expressed disbelief at the applicant’s knowledge of Falun Gong, based on his wife’s alleged adherence to the belief, and noted that there were further factors discussed at the hearing that reinforced the Tribunal’s view that the applicant had no connection with Falun Gong in China, and that he had not suffered persecution for that or for any other reason.  In particular, it referred to his passport – noting:

   The applicant’s passport (a partial photocopy of which was attached to the protection visa application) indicates that it was issued at the beginning of November 2008.  This means that he applied for it during his period of claimed detention, or almost immediately after his release.  The tribunal found the applicant’s references that he relied on a police friend and, when pressed for detail, that he RMB 15,000 to be glib and unpersuasive[7].

   [7] See Court Book at page 64

9. The Tribunal also noted that it had discussed, at the hearing of the applicant, why it was that he – and not his wife – had chosen to travel from China to Australia, when his wife would face a higher risk of persecution if she were, in fact, a Falun Gong practitioner. The Tribunal noted, but did not accept, the applicant’s explanations. The Tribunal went on to note:

   As noted above (paragraph 49), the applicant appeared to place greater priority on administrative and financial matters than his refugee claims.  The applicant’s casual, vague references to his refugee claims add to the Tribunal’s concerns about the truthfulness of his claims as a whole[8].

   [8] See Court Book at page 64

10. The Tribunal was not satisfied that the applicant had a well-found fear of convention-related persecution, having found that he had not been subject to adverse attention from the authorities in China, for reason of any imputed Falun Gong membership, or any other convention reason.

11. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) Visa.  The applicant commenced proceedings in this court by filing an application and affidavit in support on 10 September 2009.  In that application, he sets out two grounds of review:

    (1) The Tribunal said that the material I provided does not suggest that I will face a real chance of convention-related persecution for any reason now or in the foreseeable future if I return to China.  The tribunal made error in this finding.

    (2) The Tribunal did not refer to any independent information for the consideration of my application.  The Tribunal failed to carry out its statutory duty. 

12. Those are the two grounds of review, set out in the application.  As was submitted to the Court by Ms Rayment, solicitor, who appeared for the Minister, the applicant’s first ground does no more than seek to agitate the merits of the Tribunal’s decision, a review of which the court cannot undertake.  I am referred to the decision of Minister for Immigration Local Government and Ethnic Affairs v Wu Shan Liang[9] at 272.

    [9] (1996) 185 CLR 259

13. As was submitted, the Tribunal carefully considered the applicant’s evidence to fear persecution in the People’s Republic of China and gave clear and cogent reasons for making its adverse credibility findings.  It was submitted that those reasons were open to the Tribunal on the material before it.  I am referred to the decision of Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[10] at [67].

    [10] (2000) 168 ALR 407

14. In respect of the applicant’s second ground, a claim that the Tribunal did not refer to any independent information for the consideration of his application, and therefore failed to carry out its statutory duty, it was submitted correctly that the Tribunal is under no obligation to undertake investigations or make inquiries.

15. True it is that the Tribunal has power to seek information under the provisions of section 424 of the Migration Act.  However, it has no obligation to do so.  It is for an applicant for a visa to bring to the Tribunal whatever material and evidence that is necessary to satisfy the Tribunal that the applicant meets the requirements for the visa.  If the applicant wished the Tribunal to consider independent country information, it was upon him to submit that country information to the Tribunal.  It is certainly not the case that the Tribunal is required to conduct its own independent investigations of the applicant’s refugee claims.

16. The applicant’s written outline of submissions, filed on 1 December 2009, sets out what appear to be two separate grounds.  The first ground relates to a claim that the Tribunal failed to consider an aspect of the applicant’s claim, giving rise to jurisdictional error.  That claim is set out in paragraphs 9 and 10 of the applicant’s submission, which say as follows:

    The Tribunal failed to consider whether I will continue to practice Falun Gong in China, and face persecution as a Falun Gong practitioner.  In the circumstances, the Tribunal failed to – an aspect of my claim, giving rise to jurisdictional error.

    10. In the above claim, a question for Tribunal’s consideration was (a) whether I would, as I claimed, continue to practice Falun Gong if I was required to return to China and (b) if so, whether there was a real chance I would be persecuted as a result.

17. The applicant made an oral submission to the Court in which he referred to that particular ground.  He claimed that the Refugee Review Tribunal did not consider seriously the risk if he were to return to China and continue to practice Falun Gong.  He said that he believed that the RRT members’ understanding of Falun Gong was different from the knowledge of Falun Gong practitioners.

18. He said that their understanding of Falun Gong is based on years of practice and their life.  This submission, or original ground, can only be described as curious and elicited some questions from the bench.  It was pointed out to the applicant that he had, in his original application for a protection visa, claimed to be a Falun Gong practitioner.  However, at the hearing, the Tribunal recorded him as saying that he was not a Falun Gong practitioner, but his wife was a practitioner of Falun Gong, and he feared persecution by being associated with her.  However, in his written submission to the court, and in his oral submission – which he read from a sheet of paper – the applicant again claimed that he was the Falun Gong practitioner.

19. The applicant was asked which account was correct.  He initially told the court that the account that he was the Falun Gong practitioner was correct.  When asked about the version he had given to the Refugee Review Tribunal – namely that it was his wife who was a Falun Gong practitioner – he said that that was correct too.  He was then asked how he could reconcile the two diametrically opposed claims, and he told the court that he could not answer.

20. However, in submissions in reply, he told the court that some other people had prepared his case for him, and he had no idea what the content of his application was.  He then told the court that his wife was a Falun Gong practitioner, and so was he.  The only evidence as to what took place at the Tribunal hearing that is before the court is the Tribunal’s decision record.  The Tribunal has recorded clearly that the applicant had said that he did not know what was in his original application for a protection visa, but that he was not a Falun Gong practitioner, but his wife was.

21. The Tribunal therefore dealt with the applicant’s claim that he feared persecution based on an imputation that he was a Falun Gong practitioner – not because he said that he was, but that he was associated with his wife, who was a Falun Gong practitioner.  The Tribunal considered his claim on that basis, which was the basis that he told the Tribunal, and rejected it.

22. It therefore cannot be the case that the Tribunal fell into error by failing to consider whether he would continue to practice Falun Gong in China, when he had specifically told the Tribunal that he was not a Falun Gong practitioner. That ground must fail. The other ground, if such it be, that appears in the submission relies on the provisions of section 420 of the Migration Act.  The applicant claimed that the Tribunal had, in some way, fallen into error by breaching subsection 421 of the Act.  That subsection provides:

    The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

23. That is referred to in the written submissions, and the applicant also referred to it in the oral submission that he made to the court which, as I said, was read out from a sheet of paper. Although, on that occasion, he informed the court that section 420 provided the Tribunal must assess every case in a fair, just, expedient manner without any bias. Well, true it is that the Tribunal is required not to apply bias. But there is no specific reference to bias, or the absence of it, in section 420. In any event, section 420 requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

24. Even if it were a jurisdictional error not, in some way, to comply with section 420, there is no evidence before the court that the Tribunal’s decision was not fair, just, economical, informal or quick. In my view, from carefully reading the Tribunal decision record, the Tribunal did – in carrying out its functions under the Act – pursue the objective, as set out in section 420 of the Act. That ground, if it is a ground, must also fail.

25. The two grounds in the application, as I have indicated, must fail and, indeed, neither one of them specifies a jurisdictional error.  Ground 1 is a claim which is tantamount to an attempt at a merits review and ground 2 makes the erroneous claim that the Tribunal was, in some way, required to make its own independent inquiries.  In neither case is that correct.  I am mindful of the fact that the applicant is not legally represented.

26. I have read through the Tribunal decision record, independently of the applicant’s claims – or of the Minister’s submissions – in order to ascertain whether there may be any arguable case of jurisdictional error. Despite the applicant’s passing reference to bias, there is absolutely no evidence of bias in the Tribunal decision – whether actual or apprehended. There is no breach of section 424A of the Migration Act.  The Tribunal decision is based on the applicant’s claims, in his application for protection visa, and the applicant’s claims to the Tribunal.  The information there is excluded from the operation of subsection 424A(1) or subsection 424A(3)(b) and (ba) of the Act. 

    (b) Information that the applicant gave for the purpose of the application for review, or that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department.

27. The applicant, of course, did not attend the departmental interview and did not provide any oral information to the delegate. As to section 425 of the Migration Act, it is clear that the Tribunal invited the applicant to attend a hearing. It wrote to the applicant on 19 June inviting him to attend a hearing on 30 July 2009. The copy of the hearing invitation – it appears at pages 48 and 49 of the court book – shows that it was posted by registered post on 19 June 2009. Therefore, the applicant was given more than sufficient notice to attend the hearing. The Tribunal hearing invitation complies with the requirements of section 425A of the Migration Act.

28. The applicant attended the hearing and was provided with an interpreter in the Mandarin language.  He gave evidence with the assistance of that interpreter.  The delegate had rejected the applicant’s application on the basis of an insufficiency of information to show that he was a Falun Gong practitioner.  The applicant told a completely different story to the Tribunal – that he was not a Falun Gong practitioner, but that his wife was – and the Tribunal considered that claim, discussed it with the applicant, and rejected it.

29. There is no breach of section 425 of the Migration Act. There is no arguable case for any jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act.  As a privative clause decision, it is final and conclusive, and not subject to orders in the nature of certiorari or mandamus, as the applicant seeks.  It follows, therefore, that the application must be dismissed.

30. There is an application for costs on behalf of the first respondent Minister.  The applicant has been unsuccessful in his claim, and it is appropriate that an order for costs should be made in favour of the successful respondent.  The amount sought is $3600, which is below the court scale, and an appropriate figure in the circumstances.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  17 December 2009