SZOPG v Minister for Immigration

[2010] FMCA 882

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPG v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 882

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; 474; pt.8 div.2

Minister for Immigration and Citizenship v SZKTI (2009) 110 ALD 238
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

Applicant: SZOPG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1921 of 2010

Judgment of: Emmett FM

Hearing date: 10 November 2010

Date of Last Submission: 10 November 2010

Delivered at: Sydney

Delivered on: 17 November 2010

REPRESENTATION

The Applicant appeared in person assisted by a Mandarin interpreter

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Ms J. Gallagher, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1921 of 2010

SZOPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. 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 30 June 2010 and handed down on 1 July 2010.

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”)

3. The Applicant arrived in Australia on 1 May 2010 having departed legally from Pudong Airport, Shanghai on a passport issued in his own name and a Student (Class TU, Subclass 570) visa issued on 17 April 2009.

4. On 13 November 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 4 February 2010, the Delegate refused the Applicant’s application for a protection visa.

6. On 8 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 30 June 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 1 September 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. The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by the Chinese authorities by reason of his being a Falun Gong practitioner.

2. The Applicant claimed he was first introduced to Falun Gong in 2003 and became a Falun Gong practitioner at the end of that year. He claimed that, in 2004, he wrote a letter to a television station about his story and how he came to be a Falun Gong practitioner. The Applicant claimed that, as a result of this letter, was asked by the “suburb committee to have a “talk””. He claimed the committee tried to persuade him to change his mind and warned him when he would not that there would be consequences.

3. The Applicant claimed that, two days after his meeting with the committee, police took him to the police station and asked him to write a statement. He claimed that, when he wrote his story down, he was beaten by the police, threatened and told to renounce his belief. He claimed that two days later he was sent to a detention centre where he was held for one month. He claimed that during his detention he and other Falun Gong practitioners were tortured and forced “to attend a brainwashing session”.

4. The Applicant claimed that, with the help of a friend on the suburb committee, he was released, though “they extorted two thousand Yuan RMB from my family before they would release me”. He claimed that he was in poor physical and mental condition upon leaving detention and incapable of caring for himself.

5. The Applicant claimed that after his release he was visited by the authorities and he and his family were threatened. He claimed his wife was scared and he had to pretend he had given up Falun Gong whilst still continuing to practice.

6. The Applicant claimed that in 2008 he decided to travel overseas to Australia.

The Delegate’s decision

1. On 2 February 2010, the Applicant attended an interview with the Delegate by telephone.

2. On 4 February 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.

3. The Delegate found many aspects of the Applicant’s evidence to be “vague, devoid of relevant facts as to when claimed events occurred and what has actually happened to him”. The Delegate found the Applicant did not provide substantive responses to questions put to him by the Delegate. Ultimately, the Delegate found the Applicant’s evidence to be “vague, contradictory, unsubstantiated” and that he had fabricated his claims. The Delegate also had regard to the delay and timing of the Applicant’s application for a protection visa. The Applicant had arrived in Australia on 1 May 2009 on a student visa which was cancelled on 17 November 2009. The Applicant lodged his protection visa on 13 November 2009.

The Tribunal’s review and decision

1. On 8 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided no further documents in support of his review application.

3. On 22 March 2010, the Tribunal wrote to the Applicant informing him 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 18 May 2010 to give oral evidence and present arguments.

4. On 18 May 2010, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, material referred to in the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal found the Applicant’s credibility was in issue.

7. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “The Tribunal found that the Applicant was not credible and did not accept any of his claims: CB 95 [129]. The Tribunal noted that before the delegate the Applicant claimed that FG was banned in 2002 (rather than 1999), gave inconsistent evidence as to when he practised FG, and did not know the five FG exercises or their names. It concluded that he was not a genuine FG practitioner in China: CB 102 [166]. It also found that the Applicant gave contradictory evidence as to whether he had a detention certificate, and when he wrote to the TV station. It further noted that he only applied for the visa after being in Australia for six months and following the cancellation of his student visa. As a result the Tribunal found that the Applicant was not credible and not a FG practitioner in China and had never been harmed for this reason as he claimed: CB 104-105 [176]. It also disregarded his Australian FG practice and protests pursuant to s 91R(3) of the Migration Act 1958 (the Act): CB 102 [166]. As a result of these findings it was not satisfied that the Applicant’s claimed fears were well founded: CB 105 [178].”

The proceeding before this Court

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

2. On 7 October 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 he 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.

3. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

5. The Applicant confirmed that he relied on the grounds contained in the initiating application filed on 1 September 2010 as follows:

   “1. The procedures required by law to be observed in connection with the making of the decision were not observed.

   2. The making of the decision was an improper exercise of the power conferred by the enactment.

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

6. 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.

7. None of the grounds are supported by particulars or oral or written submissions. The grounds do not by themselves identify an error capable of review by this Court. They are bare assertions in a form regularly seen by this Court.

8. The Applicant raised for the first time at the hearing before this Court, a complaint that when he was making submissions to the Tribunal at the hearing, the Tribunal Member was checking his watch and thinking that the Applicant was making very lengthy submissions. He said that the Tribunal Member did not seem to be listening to him carefully, although it was a very lengthy hearing. When I asked the Applicant what was actually his complaint, he answered that the decision was unfair. When I asked why it was unfair he said that he had nothing else to say.

9. The Applicant did not seek an adjournment to file an amended application or any further evidence. Plainly the complaints he made to the Court this morning are not presently the subject of evidence before this Court. Even if the Applicant were given leave to give evidence in support of the complaints he has identified this morning, in my view, they do not establish as presently articulated a complaint with any, or any reasonable, prospects of success. As stated above, the Applicant has received free legal advice in accordance with the Court’s legal advice scheme and was also provided on the first return date before this Court the contact details of legal services providers, together with translating and interpreting services, in documents headed in his own language.

10. 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. At the directions hearing on 7 October 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. 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.

11. The Tribunal’s decision record makes clear that the Tribunal set out in full the Applicant’s written claims. The Tribunal then summarised in detail the Applicant’s interview with the Delegate on 2 February 2010. The Tribunal then provided a detailed summary of the exchanges it had with the Applicant at the hearing on 18 May 2010. The decision record makes clear that the Tribunal explored the Applicant’s claims with him in detail and put to him matters of concern it had about his evidence. In particular, the Tribunal put to the Applicant evidence that the Applicant had given to the Delegate which the Tribunal found to be inconsistent.

12. In light of the Applicant’s oral complaint to this Court, it was of interest that the Tribunal noted that the Applicant complained to the Tribunal that the Delegate had not allowed him to give his answers and had asked him to make his answers short. The Tribunal Member said that the tape of the interview made clear that what the Delegate was seeking to convey to the Applicant, was a necessity to allow the interpreter to translate a few words at a time, rather than for the Applicant to continue on with his answer for some time before the interpreter was able to translate.

13. The Tribunal’s decision record also identifies with some particularity the country information to which it had regard.

14. The Tribunal also noted with particularity the Applicant’s responses to concerns that it put to the Applicant about his evidence during the hearing. However, ultimately, the Tribunal was not persuaded by the Applicant’s explanations.

15. Further, at the conclusion of the hearing, the Tribunal sent to the Applicant two copies of a recording of the Tribunal hearing by separate mail to enable the Applicant to respond further in writing if he chose to do so. The Tribunal noted that the Applicant did not provide any further information in writing.

16. The Tribunal found that the Applicant did not have any trouble expressing himself verbally, although the Tribunal noted that part of his explanation for his inconsistent evidence to the Delegate was that he had such difficulty.

17. The Tribunal found that, whilst the Applicant knew the names of five of the Falun Gong exercises now, he was only able to demonstrate two. The Tribunal found that the knowledge the Applicant presently has is knowledge he gained since he came to Australia. The Tribunal made a similar finding in relation to the recitation by the Applicant of verses attached to the five main Falun Gong exercises. At the interview with the Delegate, the Applicant was unable to recite any of the verses. However, at the Tribunal hearing, the Applicant was able to recite verses attached to exercises one to three. Again, the Tribunal found that the Applicant had learned those verses since he came to Australia.

18. Further, the Tribunal put to the Applicant its concerns about the delay and timing of the lodging of his protection visa application and noted the Applicant’s responses. Ultimately, the Tribunal found that the Applicant applied for a protection visa simply to remain in Australia after the cancellation of his student visa.

19. The Tribunal rejected comprehensively the Applicant’s claims of being a genuine Falun Gong practitioner in China and having been persecuted for that reason or any other Convention related reason. The Tribunal specifically identified the claims it rejected as including the claim that: the Applicant was a Falun Gong practitioner in China; the Applicant was a Falun Gong supporter who wrote to the local television station about the benefits of Falun Gong; the Applicant was detained for close to a month; and, the Applicant was threatened and harassed by authorities after his release. The Tribunal noted that it had considered the Applicant’s claims both individually and cumulatively and found that the Applicant would not practise as a Falun Gong practitioner in the reasonably foreseeable future or fear persecution arising from former association with any Falun Gong practitioners if he were to return to China now or in the reasonably foreseeable future.

20. Ultimately, the Tribunal found the Applicant’s evidence contradictory, unreliable and found that the Applicant not to be a credible witness.

21. To the extent that the Tribunal had regard to the Applicant’s conduct in Australia in assessing his credibility, the Tribunal was entitled to do so (Minister for Immigration and Citizenship v SZKTI (2009) 110 ALD 238).

22. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including the Tribunal’s 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).

23. Otherwise, the Applicant’s complaints appear to be more in the nature of 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).

24. Accordingly, the grounds of the application and the Applicant’s oral submissions today do not establish any jurisdictional error on the part of the Tribunal.

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. The Tribunal put to the Applicant matters of concern it had about his 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.

1. 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.

2. 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.

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

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: 

Date:  17 November 2010