SZOLQ v Minister for Immigration

[2010] FMCA 605

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOLQ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 605

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.65(1)(b), 474

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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 (1986) 162 CLR 24
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: SZOLQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1271 of 2010

Judgment of: Emmett FM

Hearing date: 10 August 2010

Date of Last Submission: 10 August 2010

Delivered at: Sydney

Delivered on: 10 August 2010

REPRESENTATION

Applicant appeared in person with a Mandarin interpreter

Solicitors for the Respondent: Mr Ben May, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1271 of 2010

SZOLQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 May 2010 and handed down on 17 May 2010. 

2. The applicant is a citizen of the People’s Republic of China (“China”) and claims to be a Falun Gong practitioner who fears persecution from authorities in China for that reason. 

Background

1. The applicant arrived in Australia on 17 November 2009, having departed legally from Shanghai on a passport issued in his own name and a Subclass 676 (Tourist) visa issued on 6 November 2009. 

2. On 8 December 2009, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”). 

3. On 15 March 2010, a delegate of the First Respondent (“the Delegate”) refused the applicant’s application for a protection visa.

4. On 8 March 2010, the applicant lodged an application for a review of the delegate’s decision by the Refugee Review Tribunal.

5. On 14 May 2010, the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa. 

6. On 9 June 2010, the applicant filed an application in this Court, seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. 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 s.65(1)(b) mandates that the visa application is to be refused.

2. 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”).

3. 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.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The applicant’s application for a protection visa

1. In support of his protection visa application, lodged on 8 December 2009, the applicant provided a statement in which he claimed he feared persecution by the Chinese authorities by reason of being a Falun Gong practitioner.

2. The applicant claimed to have been introduced to Falun Gong in 2006 when a package of Falun Gong materials, including a CD, was left outside his hotel door.  The applicant claimed he started practising Falun Gong following a motorbike accident that he had had in 2004, hoping it may have a beneficial effect on his physical difficulties. 

3. The applicant claimed that on 20 September 2009, a fellow Falun Gong practitioner was arrested and named the applicant as the leader of Falun Gong in the applicant’s village.  The applicant stated that on that night, he was arrested, questioned and brutalised by police at the local station, resulting in his confession. 

4. The applicant claimed that his wife paid a bribe to secure his release following a threat that he would be sent to a re-education labour camp. 

5. The applicant stated that his wife was aware that he would not stop his Falun Gong practice and, for that reason, he left for Australia with the intention that his wife would join him later. 

The Delegate’s decision

1. On 5 March 2010, the department invited the applicant to attend an interview, on 8 March 2010, with a delegate of the first respondent.  However, the applicant did not attend that interview. The Delegate noted that the applicant did not provide any reason for his non-attendance at the interview. 

2. On 8 March 2010, the Delegate refused the applicant’s application for a protection visa.  The Delegate found the applicant’s claims to be vague and unsubstantiated and to be no more than mere assertions. 

3. The Delegate noted that the applicant had departed China using his own valid passport and did not provide any details as to how he was able to circumvent the security vetting procedures on departing from China.  The Delegate had regard to independent information that indicated that China maintained strict controls on the issue of passports and the entry and exit of Chinese citizens.

4. Ultimately, the Delegate was not satisfied that the applicant was of any interest to the authorities in China for a Convention related reason at the time of his departure.  The Delegate was not satisfied that there was any evidence to indicate that the applicant would be of any interest to the authorities for any Convention related reason in the reasonably foreseeable future if the applicant was to return to China. 

5. Accordingly, the Delegate found that the applicant is not a person to whom Australia has protection obligations under the Convention. 

The Tribunal’s review and decision

1. On 15 March 2010 the applicant lodged an application for review of the Delegate’s decision.  However, the applicant did not provide any further documents in support of the review application.

2. On 7 April 2010, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it.  It was unable to make a favourable decision on that material alone.  The Tribunal invited the applicant to attend a hearing which he did on 13 May 2010.  The applicant gave evidence at the hearing in support of his claims. 

3. The Tribunal’s decision is accurately summarised by the solicitor for the first respondent, Mr May, in his written submissions as follows and

   “10. As noted above, on 14 May 2010, the RRT affirmed the delegate's decision.[1]  The RRT did not consider that the applicant had given credible or truthful evidence about his claims.[2]

   [1] RD 74

   [2] See [73] of RRT's decision at RD 84

   11. The RRT did not accept that the applicant had been truthful because:

   1) the applicant's account of how he became involved with Falun Gong (that he picked up a mysterious package out of curiosity) was implausible;[3]

   2) the applicant had not explained how he had learnt to perform the Falun Gong exercises;[4]

   3) the applicant's knowledge of Falun Gong beliefs and practices was rudimentary;[5]

   4) the RRT would have expected the applicant to know and have access to the principal text of Falun Gong, the Zhuan Falun;[6]

   5) the applicant's claims relating to his detention and mistreatment were confused and lacked detail;[7]

   6) the applicant had claimed that the Chinese authorities planned to detain him, but could not explain why this was so given that a bribe had just been paid for his release;[8] and

   7) the applicant could not explain why, if the authorities wished to detain him, he had been able to depart China legally.[9]

   12. The RRT therefore did not accept that the applicant was a Falun Gong practitioner, and did not accept that he would be at risk of mistreatment for that reason.[10]  The RRT accordingly was not satisfied that the applicant held a well-founded fear of persecution for a Convention reason, and affirmed the delegate's decision.[11]”

   [3] See [75] of RRT's decision at RD 84

   [4] See [76] of RRT's decision at RD 84

   [5] See [77] of RRT's decision at RD 84-85

   [6] See [77] of RRT's decision at RD 85

   [7] See [78] of RRT's decision at RD 85

   [8] See [80] of RRT's decision at RD 85

   [9] See [82] of RRT's decision at RD 85-86

   [10] See [84] of RRT's decision at RD 86

   [11] See [84]-[86] of RRT's decision at RD 86

The proceeding before this Court

1. The applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.

2. On 1 July 2010, the applicant attended a directions hearing before me. 

3. On that occasion, I explained to the applicant that the role of this Court was very different to that of the Tribunal and that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions.  I explained 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 effected by a mistake that goes to its jurisdiction.  I explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.  I explained to the applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

4. I also explained to the applicant the cost consequences that may flow in accordance with the costs schedule of this Court if he was unsuccessful.  The applicant confirmed that he wished to continue with his proceeding. 

5. Accordingly, I made directions giving the applicant 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 including any transcript of the Tribunal hearing.  The applicant was also directed to give notice to the Court and to the first respondent if he wished to rely on a recording of the Tribunal’s hearing and that to provide written submissions in support of his application.

6. The applicant was referred to the Court’s Legal Panel Advice Scheme for free legal advice.  The applicant chose not to attend the chambers of the panel adviser.  However, he agreed that he has received written advice from that adviser in accordance with his request. 

7. At the directions hearing the applicant was also provided with the contact details of legal services providers and interpreting and translating services in documents headed in his own language. 

8. At the commencement of the hearing this morning the applicant confirmed that he had not filed any document in accordance with the directions of the Court or otherwise and that he had no further documents to provide to the Court this morning in support of his application.

9. The applicant confirmed that he relied on the grounds of his application filed on 9 June 2010.  Those grounds are as follows:

   “1. Before National Day (October 2006), at a hotel, I found a package containing a CD disc of Falun Gong materials from which I started to learn Falun Gong. I learnt that it can help one cure one’s illness. I had a motorbike and I had an injury in 2004. and after my practicing Falun Gong, my health improved. In September 2009, I was arrested and sent to the police station where I was beaten, kicked and the police put pliers on my fingers and grabbed my hair and hit my head on the wall. My wise (sic) paid 20.000BRMB (sic) to the chief of the local police station. I was released.

   2. The member of the Tribunal didn’t believe my experience and particularly, he thought if I was arrested and wanted by the Chinese authorities, I couldn’t be allowed to leave China.

   3. My wife paid 20.000RMB to the local police station. We are sure that he dare not to report my matter to our city public security bureau, therefore, I was not wanted by authorities. That was way (sic) I could leave China without problem. The member of the Tribunal didn’t consider my matter in details as well the corruption of the Chinese officials. In China one can bribe officials to do what one wants.”

10. 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 the application generally.  In relation to Ground 1, I suggested to the applicant that Ground 1 appeared to be no more than a summary of the applicant’s claims and did not appear to identify a mistake made by the Tribunal.  The applicant agreed that Ground 1 did no more than summarise his claims.  The applicant did not seek to elaborate on any further complaint about the Tribunal’s decision in Ground 1. 

11. Ground 2 appears to complain that the Tribunal did not believe the applicant’s claims of being a Falun Gong practitioner in China and of his arrest for that reason, or that he was wanted by Chinese authorities and would not be allowed to leave China.  I explained to the applicant that, if the Tribunal’s findings and conclusions about his evidence were open to it on the evidence and material before it, then the fact that the applicant may disagree with those findings and conclusions did not, by itself, establish a mistake on the part of the Tribunal that went to its jurisdiction.  The applicant confirmed his disagreement with the Tribunal’s findings and conclusions. 

12. 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 the applicant at the hearing on 13 May 2010.  The Tribunal put to the applicant concerns it had about the applicant’s evidence, and noted the applicant’s responses.  There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant suggest that the Tribunal’s decision record is not accurate. 

13. As stated above, at the directions hearing on 1 July 2010, the applicant was given an opportunity to file a transcript of the Tribunal hearing and 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 the exchanges it had with the applicant at the Tribunal hearing. 

14. The Tribunal explored the applicant’s claims with him in some detail, including how he purchased his ticket to travel to Australia.  The Tribunal noted that the applicant was evasive when asked about these matters.  The applicant told the Court this morning that the Tribunal asked him about his travel and purchase of his ticket to Australia.  Whilst he did not elaborate on that statement, if the applicant was intending to suggest that the Tribunal made a mistake in asking him about those matters, plainly, they were matters about which the Tribunal was entitled to ask questions, particularly in light of the fact that the applicant was able to travel to Australia on his own passport and depart China without difficulty.

15. The Tribunal noted that it put to the applicant, the country information before it that indicated that China had a comprehensive database which was used to check departures at international terminals and that if a person was wanted, he would be stopped at the airport barrier and picked up. 

16. The Tribunal also explored with the applicant in some detail his knowledge and past practice of Falun Gong.  The Tribunal explored with the applicant his claims of having obtained Falun Gong materials in China and its concerns about the manner in which those materials came into his possession.  The Tribunal also explored with the applicant why he had taken the materials to read them at home if he knew that Falun Gong was forbidden in China. 

17. The Tribunal explored with the applicant in some detail his claims of arrest and detention for three days and his claim that his wife paid a bribe for his release.  It also explored with the applicant his alleged injuries following his detention. 

18. In particular, the Tribunal noted that it asked the applicant why he thought he would be taken to a re-education camp if his wife had just paid a bribe to have him released from the local police station.  It noted the applicant’s response that he was a Falun Gong practitioner and, “they wanted to cut it at its roots.”  The Tribunal then asked the applicant why, in that case, had he been released and noted that he was unable to answer that question in any meaningful way. 

19. The Tribunal noted that the applicant stated that he had not engaged in any public practice or Falun Gong activities in Australia because he had heard of government spies and he did not want to put his family in China at risk of harm by public practice.  The Tribunal noted the applicant’s evidence that he had not acquired any books in Australia on the basis that they were difficult to obtain. 

20. Ultimately, the Tribunal rejected comprehensively the applicant’s claims to ever have been a Falun Gong practitioner in China, to have been arrested and detained without reason, or to have suffered persecution in China for any Convention related reason arising out of his alleged practice as a Falun Gong practitioner.  The Tribunal found the applicant’s explanation of how and why he commenced Falun Gong practice in 2006 to be implausible, and did not accept the applicant’s explanation following the Tribunal’s concerns expressed about that matter to the applicant during the hearing.  The Tribunal found his knowledge of Falun Gong to be “rudimentary and fragmented”.

21. The Tribunal had regard to independent information in finding that the applicant did not have the depth of knowledge, which the Tribunal would have expected from a committed and long-term Falun Gong practitioner who had felt so strongly about his practice that he had left his home and family in China to escape persecution. 

22. The Tribunal identified various aspects of Falun Gong with which it would have expected the applicant to be more familiar.  The Tribunal found the applicant’s evidence about his arrest and detention to be affected by an absence of detail about totality of the incident.  The Tribunal found that the applicant was unable to satisfactorily identify the treatment that he claimed to have received in hospital as a result of the alleged ill-treatment at the hands of police during his detention.  The Tribunal found his evidence to be confused and not consistent. 

23. The Tribunal rejected the applicant’s claims of a fear to be forced to a labour camp for re-education if he were to return to China.  The Tribunal found that there was no logical reason why he would be arrested on his return if his wife had already secured his release through bribery.  The Tribunal noted that when it put that concern to the applicant at the hearing, he was unable to discuss it in any meaningful way other than to repeat he would be sent for re-education.  The Tribunal also found, the applicant’s explanations as to how he was able to depart China without difficulty to be unsatisfactory and rejected the applicant’s claim that he was about to be arrested when he left Beijing. 

1. The Tribunal found that the applicant was not of any adverse interest to authorities in China and also rejected the applicant’s claims that the authorities had attended his home after he left China in order to find out his whereabouts. 

2. The Tribunal concluded that the applicant did not face a real chance of persecution if he were to return to China now or in the foreseeable future and was not satisfied that the applicant has a well-founded fear of persecution for a Convention related reason. 

3. Accordingly, the Tribunal affirmed the decision under review. 

4. The Tribunal’s findings and conclusions 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 as a decision-maker (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

5. Otherwise the applicant’s complaints in Ground 2 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 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J)

6. Accordingly, Ground 2 of the application is not made out. 

7. In support of Ground 3, the applicant said no more than that he left China without a problem because of the bribe paid by his wife and that the Tribunal had not believed him. 

8. That complaint also appears to be no more than a disagreement with the Tribunal’s findings and conclusions and, for the reasons stated above, it does not establish any jurisdictional error on the part of the Tribunal in the making of its decision, including the conduct of its review. 

9. The allegation in Ground 3 that the Tribunal did not consider the applicant’s claims in detail is not made out.  As is plain from the reasons above, the Tribunal explored with the applicant in great detail all his claims.  The decision record does not suggest that the applicant had any further evidence or material that he wished the Tribunal to consider or that there was any further information or evidence that he wished to provide to the Tribunal at the hearing and which he was unable to give. 

10. The complaint in Ground 3 that the Tribunal did not consider the corruption of Chinese officials and that in China one can bribe officials to do what one wants does not by itself establish an error on the part of the Tribunal. 

11. The Tribunal identified with some particularity the independent information to which it had regard.  The country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court).

12. It was open to the Tribunal on the independent information before it to find that a person of interest would not be able to leave China without restriction and that, if the Chinese authorities had any adverse interest in the applicant, his name would have been entered in a data base.

13. The Tribunal certainly considered the applicant’s claim that his wife had bribed police to secure his release, however did not accept the applicant’s evidence in relation to that allegation.  The Tribunal found the applicant’s evidence about that alleged incident did not adequately deal with the circumstances leading up to his arrest and detention and, as stated above, the Tribunal found his account of the incident to be short and lacking in detail. 

14. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. 

15. In the light of the Tribunal’s findings, there was no obligation on it to consider the further corruption of Chinese officials.  The applicant’s assertion in Ground 3 that in China one can bribe officials to do what one wants does not, by itself, establish any error on the part of the Tribunal in the making of its decision or the conduct of its review. 

16. Accordingly, Ground 3 is not made out. 

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing, and had regard to all material provided in support. 

2. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also identified country information to which it had regard and which it explored with the applicant at the hearing. 

3. Ultimately it is for the applicant to satisfy the Tribunal that he meets the criteria for being a refugee. If the Tribunal is not so satisfied then s.65(1)(b) of the Migration Act 1958 (Cth) mandates that the Tribunal must refuse the applicant a protection visa. It mandates that a decision-maker, in this case the Tribunal, must refuse the applicant his protection visa. As stated above, the Tribunal 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.

4. The Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and 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. 

5. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Migration Act1958 (Cth), this Court has no jurisdiction to interfere with the Tribunal’s decision.

6. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: 

Date:  16 August 2010