SZSFQ v Minister for Immigration

[2013] FMCA 143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSFQ v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 143

MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case raised – application dismissed.

Migration Act 1958 (Cth), ss.5, 91R, 474, 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2001] HCA 1; (2001) 58 ALD 609
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant: SZSFQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2690 of 2012

Judgment of: Nicholls FM

Hearing date: 22 February 2013

Date of Last Submission: 22 February 2013

Delivered at: Sydney

Delivered on: 22 February 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 20 November 2012 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $2,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2690 of 2012

SZSFQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 20 November 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review by this Court of the decision by the Refugee Review Tribunal (“the Tribunal”), made on 24 October 2012, which affirmed an earlier decision made by the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The Minister has put before the Court a bundle of relevant documents, to which I will refer as the Court Book (“CB”). The following matters can be ascertained from this.

2. The applicant is a national of the People’s Republic of China (“China”) (CB 13). She arrived in Australia on 20 November 2011 (CB 13). She applied for a protection visa on 29 November 2011 (CB 1). The applicant’s claims to protection were essentially that she was perceived by the authorities in China to be a Falun Gong practitioner, and had suffered harm as a result (CB 26 to CB 27). 

3. The Minister’s delegate found, variously, after having interviewed the applicant, that her factual assertions relevant to her claimed fear were vague and generalised, and were “farfetched” (CB 50.6). The delegate said that they were quite lacking in credibility (CB 50.8). The application for the protection visa was refused on that basis (CB 51).

4. The applicant applied for review by the Tribunal on 29 May 2012 (CB 54 to CB 59). She attended a hearing before the Tribunal (CB 69 to CB 70 and CB 75). The only account put before the Court of what occurred at that hearing is the Tribunal’s own account, set out in its decision record ([31] at CB 84 to [46] at CB 87). 

5. The Tribunal found inconsistencies and implausibilities in the applicant’s account of past events ([52] at CB 89 to [53] at CB 90). It found her credibility to be seriously undermined by this. Ultimately, the Tribunal concluded that the applicant was not a genuine Falun Gong practitioner ([59] at CB 91). However, more importantly given the way the applicant has presented her claims now, the Tribunal also  found she had not been, and would not be perceived to be, a Falun Gong practitioner by the Chinese authorities if she were to return to China ([65] at CB 91). Given that this was the entire basis of the applicant’s claims to fear persecutory harm, the Tribunal affirmed the delegate’s decision ([68] – [69] at CB 94).

6. The applicant made an application to the Court on 20 November 2012. In a presentation which is now, unfortunately, becoming quite common in matters of this type, the application to the Court does not say what relief the applicant seeks. Under the heading of “Orders sought by Applicant” the applicant makes certain assertions. This requires the Court’s attention to focus not only on the stated grounds of the application such as they are, but also as to what is set out in what are said to be the “Orders sought” by the applicant.

7. I will read the entire contents of both the orders and the grounds onto the record. The “orders” sought by applicant are as follows:

   “1, I don’t think the immigration and RRT’s decision are fair to me because my risk and fears due to my Falun Gong background has not carefully considered.

   2, RRT did not consider that my family has been much affected due to my Falun Gong history and I will be persecuted and life challenged if I return to origin in China. 

   3, RRT member failed to consider my explanation of getting involvement in Falun Gong practice and activities in Australia because of my concern and fear upon Chinese spy and intelligence working in secret monitoring Falun Gong activities elsewhere and I have a big concern that my family in China will be affected if I become an target to be monitored in practice.”

8. The grounds of the application are:

   “1, I am a Chinese citizen and FalunGong practitioner who has been targeted and threatened by Chinese government in China.  I was affected and faced risk due to my Aunt’s Falun Gong background and was arrested by police. 

   2, my hometown in China was the most targeting area where Falun Gong practitioner have been brutally persecuted, and anyone with Falun Gong background are targeted, controlled and under surveillance. such horrible situation has never been changed, and decayed. 

   3, The Chinese Government still looks for me if I return and I dare not go back and wish to insist my belief in Australia.”

9. At the first occasion when the applicant appeared before the Court, she was assisted by an interpreter in the Mandarin language. At that time I noted with the applicant that the grounds and the “orders” that she sought, if that is the correct word, appeared deficient in asserting a ground relevant to judicial review of the Tribunal’s decision. Nonetheless, given that the applicant had applied for protection in this country as a refugee, albeit unsuccessfully, I referred her to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. Orders were made to facilitate the applicant filing any amended application, or any evidence that she wanted to file in support of her application.

10. In addition to those orders, the matter was set down for today further directions. Despite the applicant’s claim today that she did not “understand”, I am satisfied that the Court acted within reason to put the applicant on notice that the Minister, by way of his formal response to the application, had made clear his opposition to the orders impliedly sought by the applicant on the basis that the application to the Court itself had not disclosed an arguable case for the relief that the applicant supposedly seeks.

11. That is, even though the applicant did not articulate in her application, in the usual way, the actual relief that she seeks, I accept, as the Minister has accepted (in my view, properly), that what the applicant was seeking by coming to this Court, or, really, what was permitted to her to seek, was that if there was “legal” (jurisdictional) error in what the Tribunal had done, that the Court would, in effect, send her matter back to the Tribunal for reconsideration. The Court had also sought to put the applicant on notice that if, after obtaining legal advice, her case had not advanced beyond that as asserted in the application to the Court, then the Minister may seek dismissal of the application at the next Court date. 

12. The applicant today has appeared in person before the Court.  She was assisted by an interpreter in the Mandarin language. Ms M. Stone appeared for the respondent Minister.

13. Nothing further has been filed by the applicant in her case to that initially filed. In these circumstances, the Minister pressed that the matter, in effect, proceed to a “show cause” hearing today, and that the application be dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). That is, on the basis that the application does not raise an arguable case for the relief that the applicant really seeks from the Court.

14. The applicant confirmed that she had spoken by telephone to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. She confirmed that she had been given some advice. I am able to note that a Certificate has been placed on the Court’s file. It is a Certificate by the panel member that a telephone conference took place with the applicant, and that subsequently, written advice was provided to the applicant. I note that in this case, the panel member is Mr C. Jackson of counsel, who often appears in this Court representing applicants such as the applicant currently before the Court.

15. For her part, when given the opportunity, the applicant said that she had nothing to say to the Court. I should note, again, that the orders for the relief sought by the applicant plainly do not seek any quashing of the Tribunal decision or return of the decision to the Tribunal for reconsideration according to law. As I said earlier, I take the view that, nonetheless, what the applicant seeks are the usual remedies for matters of this type. That is, relief or orders in the nature of some of the prerogative writs.

16. The three stated “grounds” of the application, if, indeed, they can be called grounds, do no more than repeat the applicant’s claims to fear persecutory harm. That is, they do no more than repeat some of the claims that she made in her application for a protection visa, and as ultimately presented to the Tribunal.  Despite the benefit of legal advice, the grounds therefore remain in that same state. That is, that the grounds of the application do not articulate or assert anything other than seeking impermissible merits review by this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

17. It is well established by relevant authorities that the limits on the exercise of this Court’s jurisdiction are placed clearly at the point of not being able to engage the merits of an applicant’s claims for a protection visa.  In that sense, clearly no arguable case for the relief sought, as I have sought to explain to the applicant, is apparent in the grounds. That finding alone should be sufficient to make the order that the Minister seeks. But, given that the applicant has appeared unrepresented before the Court, I have also had regard to what the applicant has stated under the heading of “Orders sought” in her application.

18. Unfortunately for the applicant, however, even that does not advance her case. I should note first that the reference to the “immigration decision” can only be understood, having regard to whoever drafted this document, as being a reference to the delegate’s decision. It is the case that that decision, under the Act, is a “primary decision” (see s.5 and s.474(2) and (4) of the Act). It is not only reviewable by the Tribunal, but plainly has been reviewed by the Tribunal. Given the provisions of s.474 of the Act, the Court has no power to review it.

19. Second, the applicant asserts that her claims and explanations put to the Tribunal were not considered, or not carefully considered. It is the case that, on any plain reading of the Tribunal’s decision record, what is revealed is that her claims were in fact considered. Importantly, they were considered in the sense as required by such relevant authorities as NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, and the like. What remains, therefore, is that the applicant really complains that her claims were not accepted by the Tribunal. The short, and complete, answer to the applicant is that the Tribunal is not obliged to uncritically accept her claims (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J).

20. The Tribunal’s findings, and the findings informing the Tribunal’s adverse finding as to the credibility of what the applicant put to it, were all reasonably open to the Tribunal on what was before it. I note that findings of fact, including findings on credibility, are, in those circumstances findings of fact for the Tribunal to make, and within jurisdiction (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2001] HCA 1; (2001) 58 ALD 609). Again, therefore, the applicant seeks impermissible merits review. Therefore, again, there is no arguable case advanced here.

21. To the extent that what is set out in the application complains that the Tribunal’s decision was in some sense not “fair”, then this also does not assist the applicant’s case. In the current proceedings, the Court is not required to focus on whether the Tribunals’ conclusion was the correct, or “right”, outcome. Rather, the Court is to focus on whether the procedure before the Tribunal was “fair” (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 see also SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). Whether the outcome or the decision was the “right” decision, or even a “fair” decision, falls outside the jurisdiction of this Court.

22. Finally, I note that the applicant, again, makes an assertion that the Tribunal failed to consider her explanation of becoming involved in Falun Gong practice and activities in Australia. By that I understand this to be a reference to her explanation, given in the application to the Court, that her failure to become involved in these activities in Australia was because of her concern, and fear, that she would be treated by the Chinese authorities as a spy. That is not a factual assertion that can be made out on the material before the Court.

23. The Court can only proceed on the evidence that is presented to it. In relation to the applicant’s claimed activities in Australia, the Tribunal noted, based on the applicant’s own evidence, that she had not been an active Falun Gong practitioner in Australia. Apart from the claim to have practised in private, the Tribunal found that, given her lack of knowledge about Falun Gong, it was not prepared to accept as being credible, her claim to have been an active Falun Gong practitioner in Australia.

24. If the applicant had provided some explanation to the Tribunal as to why she was not an active Falun Gong practitioner in Australia, along the lines of what she suggests in the document to the Court, then such an explanation is not apparent on the material before the Court. The relevant part of the Tribunal’s account of the hearing is set out at [42] (at CB 86) of its decision record, where the applicant is reported as having given evidence that she has practised Falun Gong in Australia but “not that often”. Her evidence was that “she practised every few days after she arrived here, but now does not practise often” ([42] at CB 86).

25. When asked if she knew much about Falun Gong, she stated that her “knowledge is not very extensive” ([42] at CB 86). In terms of her practise in Australia ([42] at CB 86):

    “…she testified that she would practise a bit and follow a CD. She saw some activities in Chinatown, and intended to participate, but was told by her neighbour not to take part as this could cause problems in the PRC. She is unaware if anyone in Australia would be aware that the applicant practised Falun Gong at home.”

26. There is nothing here that she expressed any explanation, or concern, to the Tribunal about being perceived as a spy as the reason why she did not practise Falun Gong in Australia.

27. In all the circumstances, therefore, no arguable case is raised either by the grounds of the application, or, indeed, by what is set out under the heading of “Orders sought”. In the absence of any arguable case, it is appropriate that I grant the Minister’s application that the matter be dismissed, pursuant to r.44.12(1)(a) of this Court’s rules.

28. It is appropriate that an order for costs be made in the usual way in this matter.  The applicant has put nothing before the Court to argue against the making of the order. As to the amount, I am satisfied that the amount sought by the Minister is a reasonable amount in the circumstances.  I will therefore make the order in the amount sought. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 12 March 2013