WAMQ v Minister for Immigration
[2008] FMCA 440
•26 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAMQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 440 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal – where applicant claims that the Tribunal differently constituted granted an application by another person of similar background to the applicant for a Protection (Class XA) visa – each case before the Tribunal relies on its own facts – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 S20/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59 |
| Applicant: | WAMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 261 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 March 2008 |
| Date of Last Submission: | 26 March 2008 |
| Delivered at: | Perth |
| Delivered on: | 26 March 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Counsel for the Respondents: | Mr Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application for adjournment is refused.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5000 and I allow 3 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 261 of 2007
| WAMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The Refugee Review Tribunal affirmed a decision by a delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection visa. The applicant asks the court to quash the Refugee Review Tribunal’s decision. She also asks the court to remit her application to the Tribunal for reconsideration. I have explained to the applicant, that in order for the court to make those orders, the court needs to be satisfied that the tribunal decision is affected by jurisdictional error.
Background
A brief background to the matter is that the applicant arrived in Australia on 8 March 2007. On 22 March, she applied for a Protection (class XA) visa.
She claimed in her application that she feared persecution if she were required to return to China because she is a Falun Gong practitioner. She claims to have been arrested and detained for a period of up to 50 days because of her Falun Gong beliefs. She joined a tour group which visited Australia and New Zealand and, whilst in New Zealand, the tour organisers collected the applicant’s passport, along with the passports of the other members of the group. However, when they arrived in Brisbane the tour organisers omitted to collect the applicant’s passport and she used the passport to seek protection in Australia.
The delegate of the Minister for Immigration and Citizenship was not satisfied that the applicant had demonstrated a well-founded fear of persecution for a reason related to the Refugees’ Convention. The reasons given, in brief are:
a)The applicant had not provided any detail or any documentary evidence to support her claims that she was a Falun Gong practitioner who was being monitored by the authorities in China.
b)Whilst independent evidence shows that genuine Falun Gong practitioners have been prevented from leaving China, the applicant had obtained a passport which was issued to her a few years before she used it to come to Australia.
c)The fact that she was given a legal passport in her name and that the authorities were aware of that fact suggested that she was of no interest to the authorities for her claimed participation in Falun Gong activities.
d)The applicant had not provided any letters of support from any organisation in Australia or testimonials from fellow practitioners to support her claims of being a Falun Gong practitioner.
e)Whilst the applicant had not provided a full copy of her passport the detail provided showed that she had appeared to have travelled out of China in 2005 and to have returned to China without any problem.
For those reasons, the delegate of the Minister was not satisfied that the applicant had a well-founded fear of persecution and refused the application for a visa on 3 May 2007.
Review by Refugee Review Tribunal
On 4 June 2007, the Refugee Review Tribunal received an application from the applicant for review of the delegate’s decision; at that stage the applicant was living in Sydney. No other documents were provided at that stage. The Tribunal wrote to the applicant on 4 June 2007 acknowledging receipt of her application and wrote again on 19 June inviting the applicant to attend a hearing of the Tribunal to give oral evidence and present arguments. The hearing was scheduled for 30 July 2007.
The applicant attended the hearing. She brought her passport issued by the People’s Republic of China. She gave evidence with the assistance of an interpreter in the Mandarin language. That same day she completed a form headed “Change of Contact Details” in which she indicated that she would no longer be living in Sydney but would be living in Western Australia.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 5 November 2007. The Tribunal handed that decision down on 27 November. The Tribunal affirmed the decision not to grant the applicant a Protection (class XA) visa. A copy of the Tribunal decision record can be found in the court book at pages 72 through to 83.
In its decision record the Tribunal considered and set out the applicant’s claims and evidence taken from her application for a protection visa. The Tribunal noted that the applicant did not provide any additional information at the time she lodged her application for review. The Tribunal set out a summary of the applicant’s evidence given at the Tribunal hearing[1]. The Tribunal also considered independent evidence about Falun Gong and about the situation of Chinese citizens who return to China after they have remained out of China for a longer period than they had indicated[2].
[1] See Court Book pages 76-78
[2] See Court Book pages 78-81
In the Tribunal’s Findings and Reasons[3], the Tribunal accepted that the applicant was a Chinese national based on her Chinese passport. However, the Tribunal was not satisfied that the applicant was a genuine Falun Gong practitioner. The Tribunal noted the applicant’s claims but expressed some doubt about these claims based on the applicant’s limited knowledge and understanding of Falun Gong and the principles of Falun Gong. The Tribunal noted, in particular, the applicant’s inability to perform all of the five basic exercises and the fact that she was only able to name four of them. The Tribunal said:
The Tribunal is of the view that the applicant’s inability to perform, to completion, any of the exercises indicate that the applicant is not a genuine Falun Gong practitioner. The Tribunal would expect that a genuine Falun Gong practitioner of over eight years standing should be familiar with and be able to demonstrate each of the five Falun Gong exercises.[4]
[3] at pages 81-83 of the Court Book
[4] Court Book at 81
The Tribunal went on to describe the limited nature of the applicant’s knowledge and understanding and then went on to consider what the Tribunal considered to be an inconsistency in her evidence. This related to a claimed deep commitment to Falun Gong, on the one hand, but a statement given in evidence, that she had not practiced Falun Gong since arriving in Australia, especially as the applicant had observed people practicing Falun Gong in a park near the railway station in the suburb of Sydney in which she previously lived.
The Tribunal stated that it would expect that a long-standing Falun Gong practitioner, which the applicant claimed to be, would be able to articulate an understanding of the principles and meaning of Falun Gong; would be able to demonstrate the five Falun Gong exercises; and would be able to explain the importance of the Falun itself. The Tribunal found that the applicant’s – what the Tribunal Member described as the applicant’s, “Extremely limited understanding of Falun Gong,” to be inconsistent with her claim that she had practiced Falun Gong since 1998. The Tribunal went on to find:
In light of the serious deficiencies in the applicant’s evidence in relation to her knowledge of Falun Gong, the tribunal does not accept that she was a Falun Gong practitioner in China. The applicant’s evidence at the Tribunal hearing leads the Tribunal to conclude that she has learned some basic information about Falun Gong for the purposes of providing evidence at the Tribunal hearing in relation to her claim to be a Falun Gong practitioner.
Given the deficiencies in the applicant’s knowledge of Falun Gong and the Tribunal’s finding that she was not a Falun Gong practitioner in China, the Tribunal does not accept that the applicant was detained in August and September 2000 for practicing Falun Gong. The Tribunal does not accept that the applicant was placed under surveillance for this period, nor that she was forced to attend study classes repudiating Falun Gong, nor that she was interrogated and abused and beaten by Police and denied access to a solicitor.[5]
[5] Court Book at 82
The Tribunal noted that the applicant had travelled to Singapore and Malaysia in 2005 and had returned to China without seeking asylum in either country and did later travelled to Germany, France, the Netherlands, Belgium, and Luxembourg, again returning to China without seeking asylum in any of those countries. The Tribunal went on to note:
The fact that the applicant returned to China on each of these occasions is, in the Tribunal’s view, further evidence that the applicant did not have a well-founded fear of persecution in China contrary to her evidence to the Tribunal.[6]
[6] ibid
The Tribunal noted the applicant’s claim that she feared persecution if she were to return to China at that stage which was later than the date that she should have returned. The Tribunal considered that, and, based on independent country information, was not satisfied that the fear was well-founded. Because the Tribunal was not satisfied with the basic aspects of the applicant’s claim, namely, that (a) she was a Falun Gong practitioner, and (b) that she had suffered serious harm in China as a result, the Tribunal did not accept at the applicant would practice Falun Gong on her return to China.
The Tribunal also found that it was not satisfied that the applicant’s fear of returning to China on the basis that she did not return on the date she should have returned disclosed a well-founded fear of persecution. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason if she returned to China and affirmed the decision not to grant a Protection, (class XA) visa. I note that there is an error, and it appears in the first paragraph of page 83 of the Court Book in which the applicant is referred to, on one occasion, by the pronoun “his” rather than “her” but, in my view, that is a mere typographical error and nothing turns on it.
The applicant commenced proceedings for judicial review in this court by filing an application and an affidavit in support on 24 December 2007. In her application she sets out six grounds of review:
(1)The Refugee Review Tribunal did not properly consider the applicant’s claim of being a Falun Gong practitioner.
(2)The RRT failed to consider that the applicant’s individual situation was matched up with the independent evidence gathered by the Tribunal from an independent source.
(3)The RRT failed to take into account that there was no contrary evidence to prove that the applicant was not a Falun Gong practitioner.
(4)The RRT did not give proper consideration to the applicant’s claim that she was detained for 50 days from 1 August 2000 and was released on 20 September 2000. There was no contrary evidence to prove that the applicant was not detained during that period.
(5)The RRT erred in that that applicant had a fear of persecution as a result of her later return to China because an ordinary person may have no such fear but the applicant was a Falun Gong practitioner and was detained for 50 days.
(6)The RRT failed to consider the applicant’s belief that only in Australia are Falun Gong practitioners are well protected, more so than they are in other countries.
The applicant has not filed any written submissions in support of her case. She attended court and made oral submissions. I asked the applicant a number of questions about her grounds of review and the applicant added to ground (1), her claim that the Tribunal did not properly consider her claim to be a Falun Gong practitioner by saying that she had a friend who came from the same part of China, who had a similar background and that person has gained refugee status in Australia. Why, she asks rhetorically, did the Refugee Review Tribunal not believe her?
The applicant’s claim about the success of her friend’s refugee claim which was, in effect, the core claim of her application to this court, also provided an explanation of the applicant’s second ground, that the Tribunal failed to consider that her individual situation matched up with independent evidence gathered by the Tribunal from an independent source. As far as the applicant’s third and fourth grounds were concerned, the applicant was asked if the point of those grounds was that the Tribunal did not have, but should have had, evidence to rebut the applicant’s claims before it could find that it did not accept those claims. The applicant reiterated her case that the Tribunal had considered her case differently to the cases of other people.
The applicant’s fifth ground was somewhat difficult to understand. I put to the applicant that the fifth ground meant that the Tribunal had erred because even though a person other than the applicant may not fear trouble from the authorities if she returned to China– if that person returned to China much later than expected, the applicant had, at least, a subjective fear because of the applicant’s history of having been a Falun Gong practitioner in China and having been arrested and detained for that period. The applicant agreed that that is what that ground referred to.
In the explanation of her sixth ground, the applicant said that it was, to her knowledge, that Falun Gong practitioners can expect protection in Australia but she was not aware that people seeking refugee status in the other countries which she had visited, namely Singapore, Malaysia, Germany, France, Belgium, the Netherlands, or Luxembourg, or New Zealand would be able to claim protection on the basis that they were Falun Gong practitioners. The applicant later explained that, whilst she was in New Zealand before she came to Australia, there were two reasons why she did not seek protection in that country. One, that she did not have access to her passport because it was held by the organiser of the tour group and two, she did not know that New Zealand would provide protection to people seeking to be classified as refugees on the basis that they were Falun Gong practitioners.
After the applicant had answered questions from the Bench I offered the applicant the opportunity to address the court in support of her claim that the tribunal had fallen into error. The applicant then sought an adjournment so that she could provide written submissions after she had obtained legal advice.
I have decided to refuse that adjournment, and I indicated to the applicant that the final hearing had started. I note that this application first came before the court on 29 January 2008, where Lucev FM made directions for hearing which included filing written submissions well before the hearing date of today. In my view, both parties have had sufficient time to prepare this case for hearing today. It is for those reasons that I decided to refuse the application for an adjournment.
The applicant told the court that the main reason why she believed that the Tribunal had fallen into error was that the Tribunal made different decisions in different cases. She complained that there were Falun Gong practitioners with similar backgrounds to her own who had been successful in obtaining refugee status in this country, but she had not.
For the Minister, who is the first respondent to the application, Mr Hannan of counsel provided a written outline of submissions which were filed at the court on 25 March. I was informed that a copy of those submissions had been couriered to the applicant, although she had not had the time to read them before she had come to court because she had been in Melbourne. The applicant in fact arrived at court approximately 25 minutes after the scheduled time. I had adjourned the proceedings for a period of half an hour so that the Mandarin interpreter could take the applicant through the outline of submissions. In those submissions, counsel for the respondent addressed each of the applicant’s grounds and stated, correctly in my view, a number of propositions, which a court conducting judicial review of an administrative decision must take into account. I will expand on those submissions shortly.
In oral submissions, Mr Hannan of counsel identified that the nub of the Refugee Review Tribunal decision was its finding that the applicant was not a Falun Gong practitioner in China. It followed from that finding that the applicant could not have been detained by the authorities on the basis that she was a Falun Gong practitioner. The tribunal found that the applicant would not practice Falun Gong if she returned to China.
As to the applicant’s grievance that the applicant’s friend, and apparently other people, had been granted refugee status in this country, Mr Hannan pointed out that each case must depend on its own facts. There was no evidence that the applicant had invited the Refugee Review Tribunal to consider the case of her friend who had been successful and, in any event, that would have been irrelevant because the Tribunal is obliged to consider each case on its own merits and on its own circumstances. Mr Hannan pointed out that the tribunal had clearly accepted from the independent country information that some Falun Gong practitioners in China have suffered from persecution and, presumably, such people, if they were to apply for protection visas in Australia, may well be successful. However, as he reiterated, each case must be considered on its own facts.
The applicant in reply reminded the court that she had no opportunity to abscond from the tour group in New Zealand because the tour leader had retained the parties’ passports and, in any event, she was not aware that New Zealand would offer protection to people claiming refugee status because they were Falun Gong practitioners in China. I note in passing, although it is irrelevant to this decision, that New Zealand is a party to the Refugees Convention.
The principles that a court must consider have been neatly set out by counsel for the first respondent Minister in paragraphs 48 to 56 of his written outline of submissions. It is correct to say that a court conducting judicial review upon refugee status must be astute not to turn judicial review into merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). The onus was on the applicant to make out the factual basis of her application and the Refugee Review Tribunal is not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348, and also Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 at [13]).
The finding of fact, including the making of credibility findings, is uniquely within the jurisdiction of the Refugee Review Tribunal and not within the jurisdiction of the court (see NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]). In particular, disagreement with the Refugee Review Tribunal’s findings of fact does not support a contention that the Refugee Review Tribunal failed to consider the evidence properly or fairly (see SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at [14]).
Further, it was legitimate for The tribunal to have regard to the applicant’s failure to apply for asylum elsewhere, and a challenge to the Tribunal’s decision on that basis invites the court to engage in impermissible merits review. I am referred to the decision of NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [12]). In my view, with respect, it was perhaps more apt for the Tribunal to refer not so much to a failure to apply for refugee status in other countries but to note, as the Tribunal in fact did, at page 82 of the Court Book, that:
After the applicant’s trips overseas, she had returned to China on each of those occasions.
The Tribunal noted that that was further evidence that the applicant did not have a well founded fear of persecution in China.
It was legitimate for the Tribunal to refer to discrepancies between the applicant’s statement attached to her application for a protection visa and her oral evidence before the Tribunal, and Mr Hannan submitted that this did not engage section 424A(1) of the Migration Act, referring the court to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.
In dealing with the applicant’s grounds of review in detail, I will consider them one at a time. Ground one says:
The Refugee Review Tribunal (RRT) did not properly consider the applicant’s claim of being a Falun Gong practitioner.
In my view, the Tribunal did consider the applicant’s claim to be a Falun Gong practitioner. The Tribunal asked the applicant about Falun Gong exercises and beliefs, and considered independent evidence about Falun Gong[7]. The Tribunal found serious deficiencies in the applicant’s evidence in relation to her knowledge of Falun Gong. As I have said, disagreement with the Tribunal’s findings of fact does not support a contention that the Refugee Review Tribunal failed to consider the evidence properly or fairly (see SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at [14]).
[7] Court Book 78-79
The applicant’s second ground says:
The Refugee Review Tribunal failed to consider that the applicant’s individual situation was matched up with the independent evidence gathered by the tribunal from an independent course.
In my view, this is no more than a challenge to the Tribunal’s factual findings. It is an invitation to the court to rehear the application on its factual merits. As I indicated earlier, a court conducting judicial review upon refugee status must be astute not to turn judicial review into merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang).
The applicant’s third ground says:
The RRT failed to take into account that there was no contrary evidence to prove that the applicant was not a Falun Gong practitioner.
This ground is misconceived. The Refugee Review Tribunal is not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant (see Selvadurai v Minister for Immigration and Ethnic Affairs).
The applicant’s ground 4 says:
The Refugee Review Tribunal did not give proper consideration to the applicant’s claim that she was detained for 50 days from 1 August 2000, and was released on 20 September 2000. There was no contrary evidence to prove that the applicant was not detained during that period.
In my view, the Tribunal did consider this claim[8], and rejected it [9]. The Refugee Review Tribunal is not obliged to have rebutting evidence available before rejecting a factual assertion made by an applicant.
[8] Court Book 75 and 77
[9] Court Book 82
The applicant’s ground 5 says:
The Refugee Review Tribunal erred in that the applicant had a fear of persecution, as a result of her later return to China, because an ordinary person may have no such fear, but the applicant was a Falun Gong practitioner and was detained for 50 days.
This ground was somewhat difficult to understand. However, the applicant claims that she has a fear of persecution, arising out of her detention for 50 days as a Falun Gong practitioner. Accordingly, she claims to fear persecution, if she returns to China much later than she told the Chinese authorities that she would return. She claims that her fear is well founded, at least subjectively, because of her previous detention. The Tribunal considered that claim. The Tribunal considered independent evidence about that claim, and was not satisfied that the applicant’s claimed fear was well founded and rejected that claim.
The applicant’s final ground, ground 6, says:
The RRT failed to consider the applicant’s belief that only in Australia, the Falun Gong practitioners are well protected, more so than in other countries.
In my view, the Refugee Review Tribunal noted that the applicant had (a) travelled to Malaysia and Singapore in 2005, and (b) had returned to China without seeking asylum in those countries, if, of course, asylum is in fact available in Malaysia and Singapore, and (c) that the applicant had then travelled, on a later occasion, to Germany, France, The Netherlands, Belgium and Luxembourg without seeking asylum. The applicant believes that only in Australia are Falun Gong practitioners well protected, and considered that the Tribunal did not take that into account. In my view, this is no more than a challenge to the tribunal’s factual findings. It is an invitation to engage in merits review, which is unavailable. Whilst it may be argued that not all of the foreign countries mentioned are necessarily parties to the Refugees’ Convention, it would relevant for the Tribunal to consider that the applicant had had two trips overseas and on each occasion had returned to China, and found this to be inconsistent with her claim of a well-founded fear of persecution in China. In my view, this finding was open to the Tribunal on the evidence before it.
In my view, all of the applicant’s six grounds for review fail to disclose any jurisdictional error. I have considered the fact that the applicant is not legally represented, and I have examined the decision, and the supporting material, in order to ascertain whether any arguable case may be made of some other jurisdictional error not referred to.
Mr Hannan of counsel, suggested that the applicant may have considered arguing the question of illogicality in the Tribunal’s decision, but also submitted that this ground could not be made out. I have considered whether the question of illogicality is arguable, assuming, of course, that illogicality is a basis for finding of jurisdictional error. A consideration of the High Court decision is S20/2002 v Minister for Immigration and Multicultural Affairs, [2003] HCA 30, also 198 ALR 59, would not lend much support for such a consideration, even if illogicality had been made out. In my view, the submission of counsel that it could not be said that the Tribunal’s decision was illogical is appropriate, and I am not satisfied that any illogicality has been made out.
In considering the material before me I am not satisfied that any jurisdictional error has been made out and, accordingly, the Tribunal decision must be regarded as a privative clause decision of the nature defined in subsection 474(2) of the Migration Act. Subsection 474(1) of the Migration Act provides that privative clause decisions are final and conclusive. They are not subject to orders in the nature of certiorari or mandamus which, in effect, were the orders that the applicant seeks in her application. It follows, therefore, that the application by the applicant must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in her claim and I consider that this is an appropriate case to make an order for costs. The amount sought by the Minister is the sum of $5000, which is inclusive of counsel’s fees. I am of the view that that is an appropriate figure. The applicant disputes her liability to pay and advanced the proposition, which I do not believe to be correct, that the Minister’s legal advisors are salaried employees of the government. That is certainly not my understanding and, in any event, it is not a ground that I would consider in this case.
I am satisfied that the amount of $5000 is the appropriate figure although I accept the fact that the applicant has expressed some difficulty in meeting that sum due to her limited assets. Whilst I propose to make the order I will allow three months to pay.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman
Date: 9 April 2008
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