WZANI v Minister for Immigration & Anor [2009] FMCA 129 (6 March 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 129

MIGRATION – Protection visa application – whether well founded fear of persecution – alleged Falun Gong member – knowledge of practices and beliefs – credibility – whether Tribunal properly considered claims – whether denial of procedural fairness – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36(2), 65(1), 91X, 474, 476, Part 7 Division 4 Migration Regulations 1994 (Cth), Schedule 2, Parts 785 and 866

Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 SZKLK v Minister for Immigration [2008] FCA 1125 WZANE v Minister for Immigration & Anor [2008] FMCA 1520

Applicant:

WZANI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 148 OF 2008

Judgment of:

Lucev FM

Hearing date:

24 February 2009

Date of Last Submission:

24 February 2009

Delivered at:

Perth

Delivered on:

6 March 2009

REPRESENTATION

Applicant:

In Person

Counsel for the First Respondent:

Mr D Estrin

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1) That the application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 148 OF 2008

WZANI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a Chinese national, arrived in Australia on 15 February 2008 on a sub-class 876 visitor visa.[1]
2. On 7 March 2008 the applicant applied for a Protection (Class XA) visa.[2] On 4 April 2008 a delegate of the Minister invited the applicant to attend an interview to discuss his claims.[3] The applicant did not attend.[4] On 17 May 2008 the delegate refused the protection visa application.[5] On 18 June 2008 the applicant sought review of the delegate’s decision by the second respondent, the Refugee Review Tribunal.[6] On 6 August 2008 the applicant attended a hearing before the Tribunal.[7] On 13 August 2008 the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.[8]
3. On 30 September 2008 the applicant filed an application in this Court under s.476 of the Migration Act 1958 (Cth)[9] seeking that this Court review the Tribunal Decision.

Issue

4. The issue is whether the Tribunal committed jurisdictional error on the grounds alleged in the application, or whether the decision is a privative clause decision in relation to which the Court has no jurisdiction.[10]

Grounds of application and orders and relief sought

5. The grounds of the applicant’s application are:
   • 1. The Refugee Review Tribunal rejected the applicant’s claimed involvement in Falun Gong in China without considering the all of information the applicant provided.
   • 2. The Refugee Review Tribunal has no reason not to accept that the applicant will have faced the real prospect of harm in China if the applicant returns.
   • 3. It is not reasonable for the Tribunal not to believe the applicant has ever followed falun gong practice or belief.
6. The orders sought by the applicant are:
   • 1. An order in the nature of a writ of prohibition to prevent the Minister acting upon the Tribunal’s decision.
   • 2. An order in the nature of a writ of certiorari that the decision of the Tribunal be set aside.
   • 3. Such further orders as the court thinks fit.

Applicant’s affidavit

7. On 30 September 2008 the applicant filed an affidavit, sworn on 30 September 2008,[11] in support of his application. The Applicant’s Affidavit did no more than annex copies of his application to the Court and the Tribunal Decision.

Tribunal Decision

8. The issue identified in the Tribunal Decision was whether under s.65 of the Migration Act the decision-maker (the delegate) was satisfied that the prescribed criteria for the grant of a visa had been met.[12] The Tribunal referred to the relevant criterion under s.36(2) of the Migration Act for the grant of a class XA protection visa as being whether the Minister (the first respondent) was satisfied that Australia had protection obligations towards the applicant, and the further criteria for the grant of a protection visa as set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth).[13] The Tribunal identified the relevant elements of the Convention definition of “refugee”,[14] and identified that there was a question as to whether the applicant had a well-founded fear of persecution.[15]
9. The Tribunal set out in full the applicant’s statement attached to the protection visa application, which was as follows:
   • My name is [name deleted by reason of s91X of the Migration Act], 34-year-old, born in Chongqing, China. I would like to apply for a protection visa in order to avoid a risk of being jailed in my original country.
   • I am a genuine Falun Gong practitioner. For practicing Falun Dafa I was detained in China’s notorious Chongqing Forced Labor Camp and witnessed and suffered unimaginable torture.
   • I started to practice Falun Gong in December 1998. I have been detained for my belief. In May 2001 when I went to Beijing to appeal for Falun Gong. In jail, the inmates were often ordered to beat and swear at me because I refused to sign a pledge stating that I would no longer go to Beijing to appeal. I had done nothing wrong.
   • All practitioners detained in the detention center or the forced labor camp have to endure brainwashing. Every day, we have to sit in one position and watch anti Falun Gong propaganda on TV or listen to the guards for over 5 hours. No one is allowed to move. Sometimes, a brainwashing session lasts for days and we’re not allowed to sleep during the entire time. Often, we’re not even allowed to use the toilet. We are beaten daily in an attempt to force us to give up the practice of Falun Gong.
   • Numerous means are used to torture practitioners in Chongqing Forced Labor Camp. For example: practitioners are hung up and whipped; they are stripped naked and shackled to iron chairs for long periods of time, while being deprived of sleep and shocked with electric batons; they are hung up with their hands cuffed behind their backs for several days at a time; female practitioners are thrown into cells with violent male criminals, etc. After enduring such torture, many practitioners end up on the verge of death. They are sent to the hospital run by the forced labor camp. What they experience there is yet another kind of torture.
   • I was eventually sent to the forced labor camp hospital. While there, I did not receive any medical treatment and neither did other practitioners. I witnessed many practitioners who could only lie in bed, unable to take care of themselves. The doctors would violently remove their clothes, and use metal spoons to scrape their scabies. Their bodies would bleed, and the doctors would rinse the blood off with dirty tap water. I saw this with my own eyes and I heard their heart-breaking screams. I cannot use words to describe that sound. I would watch with tears pouring down my face.
   • Most Falun Gong practitioners refused to give up their belief. We went on hunger strikes to protest our unlawful arrest and the inhumane torture and persecution. The police would then further torture us with force-feeding. When Practitioners Are Tortured to Death it is Counted as Suicide.
   • I cannot stand the torture. I had to sign a pledge stating that I would no longer go to Beijing to appeal for Falun Gong again. I was later released from the Labor Camp. To avoid further persecution, I bribe a powerful government officer to prepare to go overseas. I raised 100,000 RMB (around A$15,000) by selling my belongings and borrowing from my relatives.
   • Without successfully arriving Australia, I would be in jail again and suffering terribly in China. I am grateful for regaining my freedom, a privilege that millions of Falun Gong practitioners in China do not have.
   • Thanks for kind consideration.[16]
10. The applicant gave oral evidence before the Tribunal on 6 August 2008. He read a statement to the Tribunal, which when interpreted, was in the same terms as the written statement set out above.[17]
11. The applicant described to the Tribunal his method of practising Falun Gong which essentially consisted of going to a park once or twice a week, usually with others in the park practising as well, but sometimes practising by himself, and listening to a cassette of music whilst he practised Falun Gong. The applicant said that he did this until he travelled to Beijing with other practitioners in May 2001 and was arrested when the government discovered that a group of Falun Gong practitioners had travelled to Beijing.[18]
12. The applicant was asked whether he was aware of the banning of Falun Gong in China in 1999 following demonstrations in April and May 1999 in Tianjing and Beijing, but the applicant was not aware of the ban or the demonstrations, or the subsequent goaling of practitioners, during 1999. Asked to comment about the fact that this may indicate that he was not being truthful about his past experiences as a Falun Gong practitioner the applicant said that he lived in a small area without many Falun Gong practitioners and did not watch much television and was therefore unaware of the events of 1999.[19]
13. The Tribunal asked the applicant whether he knew of any books regarding Falun Gong practice. The applicant did not know of any books nor of any practitioner who had written books associated with Falun Gong. In particular the applicant was unaware of Zhuan Falun, a book written by the leader of Falun Gong, Li Hongzhi, which articulates the philosophy informing Falun Gong practice, and was a best seller in Beijing in 1996.[20] The applicant was asked to comment on information concerning the books and “explained that he had not heard of these books because he was not well educated and used to just listen to the music associated with the Falun Gong practice.”[21]
14. The applicant was asked about beliefs associated with Falun Gong, and told the Tribunal that he had “only been interested in the music and he had a friend doing Falun Gong.”[22] The applicant knew nothing of the beliefs associated with Falun Gong and did not know that the Falun was a law wheel.[23]
15. The Tribunal asked the applicant for comment on the fact that his lack of knowledge as to the beliefs associated with Falun Gong might indicate that he was not being truthful about his past practice of Falun Gong or his detention in China. The applicant said that he was telling the truth and that it was up to the Tribunal as to whether they believed him. He explained that he did not have a great knowledge of Falun Gong because he had been busy at work and also he was not well educated.[24]
16. The Tribunal asked the applicant what he did when listening to the music and practising Falun Gong. The applicant’s response was “that he would close his eyes and listen to the music and move his arms. Asked to demonstrate the arm movements, he moved his arms to either side of his body twice and then raised them above his head. He said this was about it.”[25] The Tribunal went on to ask the applicant about his awareness of movements or exercises which were associated with the practice of Falun Gong. The applicant said that he had forgotten the sets of movements. Asked how many exercises there were he said there were seven or eight. He was unable to demonstrate any of them, name any of them, and believed that each was performed standing up.[26]
17. The Tribunal asked the applicant to comment on the fact that he was not aware of the five sets of exercises associated with Falun Gong, their names nor the sets of movements involved. He was also asked to comment on the fact that the fifth exercise was performed sitting down, and that these facts may indicate that he was not truthful about being a Falun Gong practitioner because he was not aware of this information, and that it was possible the Tribunal may disbelieve he was a Falun Gong practitioner or was ever detained in China because he was not aware of this information. The applicant responded by saying that he was telling the truth and that if the Tribunal “did not believe he could not help this.”[27]
18. The Tribunal went on to consider information available to it in relation to Falun Gong publications, and in particular the book Zhuan Falun, which is regarded as central to Falun Gong practice and belief.[28] The Tribunal also went on to consider independent country information concerning Falun Gong demonstrations in 1999 and the banning of Falun Gong by the Chinese authorities in 1999. The Tribunal also considered independent country information related to the treatment of Falun Gong activists in China, and their treatment by the Chinese authorities.[29] Ultimately, the Tribunal concluded that there was ample evidence that genuine practitioners of Falun Gong faced the real prospect of harm in China.[30]
19. The Tribunal summed up its views as follows:
    • 53. In the Tribunal’s view, the applicant’s evidence at the hearing before it was completely lacking in credibility. The applicant, despite reading a statement which he claimed was true about practice of falun gong in China between 1998 and 2001, exhibited no relevant knowledge of falun gong practice or belief. Beyond knowing the name of the leader of the practice worldwide, he was unaware of its central literature, beliefs and practices. He did not now [sic] the name of Zhuan Falun, identified as a central text to the faith and was unaware of the nature of or names for any of the exercises which form a central part of the public practice of the beliefs. Nor was the applicant aware of the central features of the treatment of practitioners in China during the period that he claimed involvement in China between 1998 and 2001. Notably, he was unaware that the movement was banned in 1999, or of the central and important demonstrations giving rise to the harsh treatment by Chinese Government.
    • 54. The applicant, commenting on these matters, referred to the fact that he was busy, his lack of education and lack of knowledge of public events. In the Tribunal’s views, the explanations for the applicant’s extraordinary absence of knowledge of matters going to the practice of falun gong cannot plausibly be explained on this basis. He did not exhibit anything which suggests he has had any exposure to falun gong practice or belief in his past. His lack of knowledge extended to all possible elements of the beliefs, from the literature to its actual practice, all of which suggests that the applicant has simply presented a fabricated claim. Were his education level affecting his ability to attend to the literature of the movement, one could reasonably expect that he would have some knowledge of movements associated with the practice he claims, and yet even this was absent.
    • 55. ...
    • 56. In the Tribunal’s view, the applicant’s claims of past falun gong practise and periods of detention in China arising from this are entirely fabricated, merely to support this application for protection. The Tribunal does not believe the applicant has ever been a practitioner of falun gong, nor that he was ever detained or mistreated in China for this, or any other, reason.[31]
20. For the sake of completeness, the Court notes that these findings were made against a background where the applicant asserted that he:
    1. was a “genuine Falun Gong practitioner”;[32] and
    2. had 12 years of primary and high school education.[33]
21. The Tribunal’s decision to affirm the delegate’s decision was based on the credibility of the applicant’s claims. The Tribunal found that the applicant’s lack of knowledge of all possible elements of the belief indicated that he was not a Falun Gong practitioner. It consequently found that the applicant’s claims of past Falun Gong practice and periods of detention were entirely fabricated. There was therefore nothing to suggest that there was a basis for the applicant to fear harm if he returned to China.[34]

Submissions to the Court

22. The applicant, contrary to the Court’s orders of 27 October 2008, did not file any written submissions.
23. The applicant did not seek to make any oral submissions to the Court. Asked to identify what error, and in particular jurisdictional error, the Tribunal had made and how it was that the Tribunal had not dealt correctly with his review application, the applicant simply said that what he was saying was the truth, and that the Tribunal did not deal with the matter correctly because what he had told the Tribunal was the truth.

Consideration

Tribunal's decision reviewable only if jurisdictional error

24. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[35] An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
    1. identifies a wrong issue;
    2. asks the wrong question;
    100. ignores relevant material; or
    4. relies on irrelevant material,

in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[36]

Grounds of application

25. The three grounds of application are set out above and are separately considered below.[37]

Ground 1 - Alleged failure to consider all of the information provided

26. The Tribunal:
    1. considered all of the applicant’s claims and the evidence put to it; and
    2. gave the applicant an opportunity to comment on information which the Tribunal considered relevant.
27. The applicant has not pointed to any information which the Tribunal failed to consider. Nor could he have, for the Tribunal dealt with and assessed all of the claims, evidence and information in an orderly and coherent way.
28. This ground is not made out, and must therefore fail.

Ground 2 - No reason not to accept claims

29. Section 65 of the Migration Act requires the Tribunal to refuse an application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established.[38]
30. In SZJEH v Minister for Immigration and Citizenship[39] the Federal Court noted that:
    • “it is well established that findings of credit are a matter for the Tribunal and absent some error going to the jurisdiction of the Tribunal, the decision of the Tribunal is not open to judicial review”.[40]
31. The Tribunal found the applicant's claims were not credible. Thus, the Tribunal was not affirmatively satisfied that the applicant was a Falun Gong practitioner. That was a finding open to the Tribunal on the basis of the information provided to it by the applicant both orally and in writing. That finding, being open and having been made, provided a reason not to accept the applicant’s claims.
32. This ground is not made out, and must therefore fail.

Ground 3 - Unreasonable not to believe applicant

33. The applicant is not expected to "pass an examination in divinity studies".[41] But, in this case, the evidence indicates that the applicant knew almost nothing of the beliefs and practices of Falun Gong. It was not therefore unreasonable for the Tribunal to make an adverse finding about the applicant's claims, based on its finding as to his "extraordinary absence of knowledge of matters going to the practice of falun gong".[42] Having regard to that finding, which it was open to the Tribunal to make on the evidence, it was reasonable for the Tribunal not to believe the applicant’s claims.
34. This ground is not made out, and must therefore fail.

Conclusion on findings, grounds of application and Tribunal’s approach

35. All of the Tribunal's findings were open to it on the information before it and no criticism can be made of the approach it took. The Tribunal approached its task correctly and had regard to relevant material.
36. The Tribunal found that the applicant had not been truthful in his claims and accordingly rejected them. That finding is factual and was open on the information and evidence before the Tribunal. It cannot be challenged in judicial review proceedings.[43]
37. The Tribunal complied with the procedural fairness provisions contained in Part 7 Division 4 of the Migration Act and ensured that the applicant was aware of all of the Tribunal's concerns. The Tribunal gave the applicant an opportunity to comment on any possible adverse view the Tribunal had about the credibility of his account.
38. The applicant advanced no arguable grounds of jurisdictional error in the application, the Applicant’s Affidavit and his oral submissions. As filed and argued the applicant asserts little but that he deserves protection because the Tribunal rejected his claimed involvement in Falun Gong in China. Essentially, on the material provided by the applicant, the Court is asked to make a merits judgment, or at least review the merits of the Tribunal Decision in relation to the facts. That is not the Court’s function.
39. The Tribunal considered the ultimate question of satisfaction: namely, whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal considered the ultimate question in proper form, having regard to:
    1. the prescribed criteria;
    2. sections 36(2) and 65(1) of the Migration Act and Parts 785 and 866 of Schedule 2 to the Migration Regulations;
    100. the definition of “refugee”; and
    4. that element of the definition of “refugee” as to whether there was a well-founded fear based on a “real chance” of persecution for a Convention reason.[44]
40. The Tribunal considered the applicant’s claims based on all of the information available, and in particular the written information and oral testimony of the applicant. The Tribunal’s failure to be satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa had been established because it did not believe the applicant had been truthful in his claims is a factual finding as to credibility. It does not amount to a jurisdictional error. The Tribunal was therefore entitled to reject the applicant’s claims. In the absence of jurisdictional error it is not the task of this Court to review the merits of the Tribunal Decision.

Conclusion

41. There was no jurisdictional error in the Tribunal’s Decision. The Tribunal Decision is a privative clause decision under section 474 of the Migration Act which the Court has no jurisdiction to review. The application will therefore be dismissed.
42. The Court will hear the parties as to costs.

I certify that the preceding 42Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-twoforty-two (42) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: Sandra Gough

Date: 6 March 2009

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[1] Court Book (“CB”) 29 and 63.
[2] CB 1-28.
[3] CB 35.
[4] CB 43.
[5] CB 39-43.
[6] “Tribunal”. CB 44-47.
[7] CB 65-66.
[8] CB 71-82 (“Tribunal Decision”).
[9] “Migration Act”.
[10] Migration Act, ss.474 and 476.
[11] “Applicant’s Affidavit”.
[12] CB 73.
[13] CB 73. “Migration Regulations”.
[14] CB 73-74.
[15] CB 73 and 79-81.
[16] CB 74-75. See also CB 16-17. The statement has been transcribed without amendment save for the deletion of the applicant’s name.
[17] CB 75.
[18] CB 75.
[19] CB 75-76.
[20] CB 76-78.
[21] CB 76.
[22] CB 76.
[23] CB 76.
[24] CB 76.
[25] CB 76.
[26] CB 77.
[27] CB 77.
[28] CB 77.
[29] CB 78-79.
[30] CB 80.
[31] CB 80.
[32] CB 74 (para.2 of the translated written statement).
[33] CB 5.
[34] CB 79-80.
[35] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[36] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; WZANE v Minister for Immigration & Anor [2008] FMCA 1520 at para.32 per Lucev FM.
[37] See para.5 above.
[38] SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 at paras.13-14 per Greenwood J.
[39] [2007] FCA 1706 (“SZJEH”).
[40] SZJEH at para.17 per Jacobson J.
[41] SZKLK v Minister for Immigration [2008] FCA 1125 at para.56 per Logan J.
[42] CB 80.
[43] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at para.10 per Gray, Tamberlin and Lander JJ.
[44] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ. See also Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611 at 650-651 per Gummow J; [1999] HCA 21 at paras.128, 130 and 131 per Gummow J; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at para. 15 per Black CJ, Sundberg and Bennett JJ; SZGZQ at paras.13-14 per Greenwood J; SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 at paras. 28-30 per Lucev FM.