SZNBC v Minister for Immigration & Anor [2009] FMCA 120 (9 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBC v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 120

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his political opinion and religion – no reviewable error.

Migration Act 1958 (Cth) ss.91R(3), 474

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 CLR 407 at 424

Applicant:

SZNBC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3247 of 2008

Judgment of:

Scarlett FM

Hearing date:

9 February 2009

Date of Last Submission:

9 February 2009

Delivered at:

Sydney

Delivered on:

9 February 2009

REPRESENTATION

Applicant:

Applicant in Person

Counsel for the Respondents:

Ms Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent's costs fixed in the sum of $4,200.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3247 of 2008

SZNBC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant is a citizen of China. He asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal handed down a decision on 21st October 2008 in which it affirmed the decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa. The Applicant seeks orders essentially setting aside the Tribunal decision and remitting his application to the Tribunal for determination.
2. He has set out in his application two grounds of review. Each of the grounds contains what appears to be more than one ground:
   1. In his first ground, the Applicant complains that it was not fair that the Tribunal did not believe the evidence that he provided and did not give him any chance to comment on any doubts that the Tribunal had. He claimed that the Tribunal did not have evidence that he was not a Falun Gong practitioner.
   2. In his second ground he complains that the Tribunal refused his application and used failed cases against his application. He claims that the Tribunal did not consider the things that he had said were true and did not consider that he would be put in gaol if he were to return to China.
3. It has been explained to the Applicant that in order for the Court to make the orders that he seeks, the Court would have to be satisfied that the decision is affected by jurisdictional error. The Minister has submitted that there is no jurisdictional error in the Tribunal decision.

Background

4. The background to this matter is that the Applicant arrived in Australia on 16th April 2008. A week later, on 23rd April 2008, he applied for a Protection (Class XA) visa. The basis of his application is that he claimed to have been persecuted in China as a Falun Gong practitioner and was detained by the police and subsequently lost his job. He claimed to fear that he would be put in gaol if he returned to China. He claimed in his application that he had been detained for three months and a friend of his, a doctor, had been sentenced to two years in a labour reform camp for his belief in Falun Gong.
5. The Applicant had the assistance of a migration agent in preparing his application and the agent assisted him to provide a typed statement to the Department of Immigration & Citizenship setting out his claims in more detail. A copy of that statement can be found in the Court Book at page 35.
6. A delegate of the Minister wrote to the Applicant on 6th May 2008 inviting him to attend an interview on 5th June 2008. The Applicant's agent acknowledged the invitation to an interview indicating that the Applicant would attend. The Applicant provided further documentary evidence in English along with a copy of his passport.
7. The Minister's delegate refused the application for a visa on 4th July 2008. The delegate considered the Applicant's claims and considered Independent Country Information about the treatment of Falun Gong practitioners. The delegate also considered information from the Department of Foreign Affairs and Trade about departure procedures from the People’s Republic of China. The delegate also considered the Applicant's oral evidence to the Department at the interview on 5th June 2008. The delegate was not convinced that the Applicant was a genuine Falun Gong practitioner. In the delegate's reasons the delegate said:
   • “The applicant's responses at interview regarding the basic teachings and information about Falun Gong indicate that he has minimal knowledge of Falun Gong. His answers were brief and vague. His responses are not characteristic of a Falun Gong practitioner who has been practising Falun Gong since 2004. From the information provided by the applicant at interview, I am not satisfied that he is a genuine Falun Gong practitioner.
   • As I do not accept that he is a genuine Falun Gong practitioner, I do not accept that he was arrested and detained on account of his Falun Gong beliefs and practices as claimed.”[1]

Application to the Refugee Review Tribunal

8. The Applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received the application for review on 25th July 2008. The Applicant nominated his migration agent as his advisor, whom he authorised to act for him in relation to the application.
9. The Tribunal wrote to the Applicant on 26th August 2008 inviting him to attend a hearing on 8th October 2008. The Applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language. He provided his passport to the Tribunal and also provided a number of photographs of himself and other people.
10. The Tribunal signed its decision on 21st October 2008 and handed the decision down on 11th November 2008. The Tribunal affirmed the decision not to grant the Applicant a protection (Class XA) visa.
11. The Tribunal decision record shows that the Tribunal considered the Applicant's written material in his original application for a visa and the Applicant's interview with the Minister's delegate on 5th June 2008. The Tribunal considered the further submission from the Applicant's advisor sent to the department on 12th June 2008 containing various documents. The Tribunal set out a summary of the Applicant's evidence at the Tribunal hearing. The Tribunal also considered Independent Country Information about Falun Gong and about falsified documentation in China.
12. The Tribunal accepted that the Applicant was a citizen of The People's Republic of China, based on the passport which he produced. The Tribunal noted the Applicant's claim to fear harm at the hands of the authorities in China because of being a Falun Gong practitioner. However, the Tribunal was not satisfied that the Applicant was a Falun Gong practitioner. The Tribunal said:
    • “The applicant proved an unsatisfactory witness at the hearing. His evidence was notably vague, confused and implausible in a number of areas, and there were clear inconsistencies with the claims in his protection visa application which he was unable to explain convincingly. He appeared ready to tailor his evidence when inconsistencies or implausibilities were drawn to his attention.”[2]
13. The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner in China or that he had ever suffered harm in China.

The Tribunal’s Findings and Reasons

14. The Tribunal set out its reasons for those findings on pages 107 and 108 of the Court Book. The Tribunal also noted the Applicant's claims to have practised Falun Gong on an almost daily basis in Australia but was not satisfied that that claim was credible. The Tribunal said:
    • “On the basis of his scant knowledge of the Falun Gong faith I am not satisfied that this claim is credible and I do not accept it. I do accept, on the basis of the photographs he has submitted, that he has been present at one or more Falun Gong demonstrations and practice sessions. However, I am not satisfied that the dominant reason for this conduct has been other than to strengthen his claim to be a refugee and, consistent with s.91R(3), I have disregarded it in assessing his claims.”[3]
15. Because the Tribunal was not satisfied that the Applicant was ever a Falun Gong practitioner in China, or that he was ever arrested and detained by the authorities for that reason, the Tribunal was not satisfied that there was a real chance that he would suffer serious harm in China for any involvement with Falun Gong or for escaping from custody if he were to return. The Tribunal affirmed the decision not to grant the Applicant a protection (Class XA) visa.

Application for Judicial Review

16. The Applicant has filed an application setting out the grounds on which he relies and an affidavit in support. In the affidavit, to which he annexes a copy of his Tribunal decision, the Applicant says,
    • “I was persecuted as Falun Gong practitioner. There is no religious freedom in China. I fear to be put in gaol again when I go back to China.”
17. The Applicant has not filed any written outline of submissions but attended Court and addressed the Court in support of his claim. He said that he was 55 years old and does not understand English. He said he did not know how to get access to public transport and does not have any relatives in Australia. He feels uncomfortable in this country. He said he had not come to Australia to work. He is over 50 years old and if he wanted to make a fortune he did not need to come to Australia to do so. He said that he would like to help his wife, who was injured in a traffic accident in 2004. She has suffered both mentally and physically.
18. He re-affirmed his claim to be a believer in Falun Gong and told the Court that his wife and son in China were both being monitored by the police. In answer to a question from the Bench about what he told the Tribunal, he said that he may not have made his evidence clear to the Tribunal hearing because he was ill on that day. He said that he had caught a cold. He claimed that the Tribunal decision was unfair and incorrect. He said that it was wrong for the Tribunal to say that he was not a Falun Gong practitioner because he could do all of the Falun Gong exercises. As to the photographs of him practising Falun Gong, he said that he had to go to Darling Harbour to practice Falun Gong but he did not need to have his photographs taken.

Ground 1

19. Counsel for the Minister, Ms Mitchelmore, submitted that neither ground raised jurisdictional error. She submitted that the Tribunal's conclusion that the Applicant was not a credible witness was a finding that was available to it on the evidence and is not open to review by the Court. She referred the Court to the decision of Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[4]. She went on to submit that the Tribunal had clearly put the Applicant on notice that it had doubts about the truth of his central claim to be a Falun Gong practitioner.
20. Ms Mitchelmore submitted that not only did the Tribunal raise these doubts with the Applicant, it gave him a chance to comment or respond and offered some additional time in which to do so. She submitted that the Tribunal had demonstrated that its conduct was not unfair despite what the Applicant alleges. It was also submitted that the Applicant's claim that the Tribunal did not have evidence that he was not a Falun Gong practitioner misconceived the role of the Tribunal and it is not for the Tribunal to make an Applicant's case for him and her.

Ground 2

21. As to the second ground, it was submitted that the Applicant's complaint that the Tribunal refused his application was no more than a complaint about the result. As to the complaint that the Tribunal used failed cases against his application, it was submitted that the Tribunal's decision was a product of its applying well-settled principles to the evidence before it, the cases on which it relied as establishing those principles long accepted as good authority. It was submitted that the Applicant's claim that the Tribunal did not believe what he said was a repetition of the first ground and it was also submitted that the Tribunal did consider the Applicant's claim that he would be put in gaol if he returned to China and that he faced risks if he did so.

Court’s Considerations

22. The Applicant has made a number of claims that the Tribunal fell into error. In both of his grounds he complains that the Tribunal did not believe in the truth of his evidence. That is entirely a matter for the Tribunal. It is for the Tribunal to assess the evidence and make the findings of fact upon that evidence. There is no unfairness in the Tribunal not being satisfied as to the Applicant's credibility. Provided there is evidence upon which the Tribunal could make an adverse credibility finding, then there is no avenue for a Court conducting judicial review to interfere.
23. In this case the Tribunal set out in its findings and reasons why it was not satisfied about the veracity of the Applicant's claims. In particular the Tribunal's reasons can be found in paragraphs 74 through to 80 of the Tribunal decision at pages 107 and 108 of the Court Book. As to the Applicant's claim that he was not given a chance to comment on the Tribunal's doubts about his evidence, that is not borne out by the decision record. In paragraph 54 the Tribunal said:
    • “I put to the applicant that, on the information before the Tribunal, I had doubts as to the truth of his claim to have been a Falun Gong practitioner, given his limited knowledge of Falun Gong and his claim to have practised in a public park. I also had doubts that he had genuinely practised Falun Gong in Australia. I doubted that he had been arrested for this reason, had escaped from custody and had gone into hiding.”[5]
24. The Tribunal went on to point out that invited the Applicant to comment on or respond, and explained that he could have additional time and could respond in any way that he wished. The Applicant, according to the Tribunal, said that he had had a settled and happy personal life in China and would not have left his family behind to face hardship and difficulty in Australia had he not been forced to do so by the fear of a lengthy gaol term.
25. In my view there is no breach of s.424A of the Migration Act, nor is there any procedural unfairness in breach of s.425 of the Migration Act, because the Tribunal did give the Applicant an opportunity to understand what the issues were and an opportunity to reply to them. The issues relating to disbelief that he is a genuine Falun Gong practitioner were the same issues that had led to the delegate's decision. The Applicant's claim that the Tribunal did not have evidence that he was not a Falun Gong practitioner does not establish any jurisdictional error. It was up to the Applicant to satisfy the Tribunal that he was entitled to a visa and it was not the task of the Tribunal to prove that he was not.
26. The Applicant's second ground complains that his application was refused but there is no error shown in that. The applicant's claim that the Tribunal used failed cases against his application has no substance at all. A reading of the Tribunal decision shows that it followed accepted decisions by both the High Court of Australia and the Federal Court of Australia and did not misconstrue the law so far as those authorities were concerned.
27. The Applicant claimed that the Tribunal did not consider that he would be put in gaol on return to China or that he faced risks if he returned to China. The fact is that the Tribunal did not believe the central part of the Applicant's claim that he was a Falun Gong practitioner in China and had been persecuted for that reason. Thus there was no basis upon which the Applicant could have a well-founded fear of harm for that reason. The Applicant's grounds of review have not been made out. There is no breach of s.424A or s.425 of the Migration Act. There is no jurisdictional error.

Conclusion

28. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Accordingly, writs of certiorari or mandamus are not available. It follows that the application must be dismissed.

Costs

29. There is an application for costs on behalf of the First Respondent Minister. The amount sought is $4,200.00 which I note is well within the scale provided by the Federal Magistrates Court Rules. The Applicant, when asked whether he wished to make any submissions about that order for costs made three points. First, he claimed that during the Departmental interview he was not able to make himself clear because of nervousness; whilst that is not a matter that bears on whether or not the Court should make an order for costs, I note that it was also a claim that he made at the Tribunal hearing but that was not accepted by the Tribunal Member. “The Tribunal was not satisfied that the Applicant was hindered by nervousness or any other mental or physical difficulty from participating in the Tribunal hearing.”[6]
30. The Applicant also told the Court that, for financial reasons, he could not afford the services of a solicitor to appear for him. That is unfortunate but that is not a reason to not making an order for costs. The Applicant also told the Court that it was open to the Court to visit his residence where it would be seen that he and the people with whom he shared accommodation were all Falun Gong practitioners. It is the case of course that the Court does not undertake merits review and it does not consider factual evidence relating to an applicant's claim.
31. In my view this is an appropriate case to make an order for costs in favour of the First Respondent. I am satisfied that the sum of $4,200.00 is an appropriate figure in the circumstances.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 20 February 2009

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[1] See Court Book at page 63.
[2] See Court Book at page 107
[3] See Court Book at page 109.
[4] (2000) 168 CLR 407 at 424
[5] See Court Book at page 102.
[6] See Court Book at page 107.