SZOMV v Minister for Immigration
[2010] FMCA 768
•6 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOMV v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 768 |
| 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); 65(1)(b); 91R; 424AA; 427(1)(d); 474; pt.8 div.2 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 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) 197 CLR 510 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | SZOMV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1423 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 October 2010 |
| Date of Last Submission: | 6 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1423 of 2010
| SZOMV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 May 2010 and handed down on 27 May 2010.
The applicant claims to be a citizen of the People’s Republic of China and a practitioner of Falun Gong (“the Applicant”).
The issues in this case are whether the Tribunal’s adverse credibility findings were open to it and whether there was any further investigation of the Applicant’s claims that the Tribunal should have made. The Applicant made bare assertions to this effect unsupported by particulars, evidence or submissions. However, these issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and consideration of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 8 August 2009 having departed legally from Beijing on a passport issued in her own name and a Subclass 676 (Tourist) visa issued on 21 June 2009.
On 22 October 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 18 January 2010, the Delegate refused the Applicant’s application for a protection visa.
On 19 February 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 26 May 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 29 June 2010, 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 s.65(1)(b) mandates that 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”).
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 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
The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by the Chinese authorities by reason of being a Falun Gong practitioner.
The Applicant claimed she was arrested in Beijing in May 2002, following four attempts in Beijing to appeal the government’s stance on Falun Gong. The Applicant claimed she was sent to a detention camp where she was beaten and tortured. The Applicant claimed that as a result her health deteriorated so she decided to go overseas “to avoid further prosecution”.
The Applicant claimed her family sold all their belongings to raise money to bribe an official to issue the Applicant a passport and to apply for a visa to Australia.
The Delegate’s decision
The Applicant was invited to attend an interview with the Delegate on 18 December 2009. The Applicant did not attend that interview.
On 18 January 2010, 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 Tribunal’s review and decision
On 19 February 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 8 March 2010, the Tribunal wrote to the Applicant informing her 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 4 May 2010 to give oral evidence and present arguments.
On 4 May 2010, the Applicant attended the Tribunal hearing and gave evidence.
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 Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“5. In a decision dated 26 May 2009, the Tribunal affirmed the decision of a delegate of the Minister to refuse the applicant a protection visa (RD 105-126). The Tribunal found that the applicant was not a credible witness and did not accept any of her claims relating to her being a Falun Gong practitioner in China (RD 123 at [88], 124 at [95], 125 at [98]). In making these findings, the Tribunal found:
- The applicant did not respond to a Departmental letter inviting her to an interview in relation to her protection visa application and nor did she attend the interview. The Tribunal did not accept the applicant's explanations for why she did not respond to the invitation. The Tribunal therefore found that her intention was not to attend the hearing and her credibility was in issue (RD 123-4 at [89]-[92]).
- Given independent information that Falun Gong was banned in China in 1999 and the absence of independent information to support the applicant's claim that Falun Gong was not banned in her province until 2003, the Tribunal found that the applicant's credibility and whether she was a genuine Falun Gong practitioner in China was in issue (RD 124 at [93]).
- The applicant did not know of the existence of the five main Falun Gong exercises which the Tribunal found, based on independent information, was fundamental to being a genuine Falun Gong practitioner. The applicant could not name the number or names of the exercises and would not perform any of them (RD 124 at [94]).
- The Tribunal did not accept the applicant's explanation for why she could not perform any of the exercises. It found that the reason the applicant was unwilling to perform the exercises was because she did not know how to do them. The Tribunal found the applicant was not a genuine Falun Gong practitioner and not a credible witness (RD 124 at [95]).
6. The Tribunal disregarded the applicant's claimed practice of Falun Gong in Australia as it was not satisfied that the applicant had engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee (RD 124-5 at [96]-[97]). The Tribunal also considered whether the applicant may be imputed with being a Falun Gong practitioner were she to return to China but found that she would not be (RD 125 at [99]).
7. The Tribunal was therefore not satisfied the applicant has a well-founded fear of persecution for any Convention related reason and affirmed the decision under review.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 12 July 2010, the Applicant attended a directions hearing before me. I 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 mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that she wished to continue with the application. 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, including any transcript of the Tribunal hearing. The Applicant was also directed to file and serve written submissions in support of her application.
At the directions hearing, the Applicant elected not to participate in the Court’s Legal Advice Scheme. However, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing, the Applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application.
The Applicant confirmed that she relied on the grounds contained in the initiating application filed on 29 June 2010 as follows:
“1. The decision involved an error of law in that: There was no evidence or the other materials (sic) to justify the decision.
2. I believe I am a person to whom Australia has protection obligations under the Refugees Convention.
3. I do not think that the Tribunal Member can make such judgment without any further investigation.”
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.
Ground 1
Ground 1 asserts that the Tribunal’s decision involved an error of law in that there was no evidence or other materials to justify its decision.
In support of Ground 1, the Applicant stated that the evidence she had given to the Tribunal was true and that the Tribunal’s decision was unfair and unreasonable. I asked the Applicant why she said the Tribunal’s decision was unfair or unreasonable. The Applicant responded that her evidence was true and her application had been refused. She confirmed to the Court that the substance of her complaint is that the Tribunal did not believe her.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
The Tribunal’s decision record makes clear that the Tribunal quoted in full the Applicant’s written claims and summarised her evidence before the Tribunal.
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. As stated above, at the directions hearing on 12 July 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if she 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.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant matters of concern that it had about her evidence and noted her responses. The Tribunal also noted that it gave the Applicant an opportunity of providing any further responses in writing or attending a further hearing. The Tribunal noted that the Applicant declined the invitation and told the Tribunal that she did not want to come back and did not want further time for any written response. The Tribunal noted that it told the Applicant that it would consider any further document provided by the Applicant before the decision was made. The Tribunal noted that the Applicant said “she clearly understood everything the Tribunal said”.
The Tribunal gave the Applicant information that may be the reason or part of its reason for affirming the decision under review in accordance with s.424AA of the Act. That information is referred to in the First Respondent’s summary of the Tribunal’s decision quoted above in these Reasons.
Based on the Tribunal’s finding of the unsatisfactory nature of the Applicant’s evidence, the Tribunal found that the Applicant is not, and never has been, a Falun Gong practitioner and comprehensively rejected her claims of past persecution for that reason.
The Tribunal’s findings were open to it on the evidence and materials before it for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the decision maker (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, the Applicant’s complaints in Ground 1 are no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites 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) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J)
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Applicant believes she is a person to whom Australia has protection obligations under the Convention. Such an assertion does not disclose any error capable of review by this Court. I invited the Applicant to say whatever she wished in support of the assertion and she said she had nothing to say. The ground was otherwise not supported by any particulars, evidence or submissions.
Accordingly, Ground 2 is rejected.
Ground 3
Ground 3 asserts that the Applicant did not think that the Tribunal could make its decision without any further investigation. Again, the ground was unsupported by particulars, evidence or submissions. I asked the Applicant what was the investigation she says the Tribunal should have made. The Applicant replied that she did not know.
It is well established that a tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
As their Honours Gummow and Hayne JJ made clear in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate the Applicants’ claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so (for example, see s.427(1)(d) of the Act; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [24]-[25] per Heerey, Nicholson and Mansfield JJ; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 561; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78] per Nicholson J).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which was easily ascertained and none was identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In the circumstances, there was nothing in the instant case to suggest that there was cogent material readily available and centrally relevant to the decision such that it was unreasonable for the Tribunal not to have attempted to obtain that information. Nor was the Applicant able to identify to this Court any particular aspect of her claims that the Tribunal was obliged to investigate, and none is apparent on the face of the Tribunal’s decision record.
Accordingly, Ground 3 is 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; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her 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 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.
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.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 6 October 2010
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