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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa.

MZWEQ v Minister for Immigration [2004] FMCA 867 (8 October 2004)

MZWEQ v Minister for Immigration [2004] FMCA 867 (8 October 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWEQ v MINISTER FOR IMMIGRATION
[2004] FMCA 867




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa.




Migration Act 1958 (Cth)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]

1 KB 223

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant:
MZWEQ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 412 of 2004




Delivered on:


8 October 2004




Delivered at:


Melbourne




Hearing Date:


8 October 2004




Judgment of:


Riethmuller FM




REPRESENTATION

Counsel for the Applicant:


Applicant appeared in person




Counsel for the Respondent:


Mr Grey




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The applicant's application filed 1 April 2004 be dismissed.

(2) The applicant do pay the respondent's costs fixed in the sum of $6,500.00

.FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 412 of 2004

MZWEQ



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an ex tempore Judgment

2. The applicant in this matter seeks a review of a Refugee Review Tribunal (`the RRT') decision made on 9 February 2004. The applicant is a citizen of the People's Republic of China and arrived in Australia on 21 October 2002. On 8 November 2002 he lodged an application for a protection visa with the respondent. A delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant such a visa on 24 January 2003. The applicant then applied for a review of that decision by the RRT on 17 February 2003. The RRT provided the applicant with a hearing on 21 January 2004 conducted with the assistance of an interpreter fluent in English and Mandarin.

3. The substance of the applicant's claim was that he was at risk of persecution as a result of his involvement with and adherence to the Falun Gong faith or philosophy. These matters were examined extensively by the RRT member in a relatively lengthy written decision of some 32 pages. The applicant seeks to review that decision on the basis of a number of specific arguments which it is appropriate that I deal with individually.

4. The first matter raised by the applicant is that the RRT did not place appropriate regard or weight upon two documents that the applicant said were significant. They were documents purporting to be an arrest warrant and a criminal court verdict produced by officials of the People's Republic of China. The applicant says that they are genuine documents and support his claim. The RRT rejected the applicant's credit and disbelieved him on the question of whether or not he was a Falun Gong practitioner and rejected the proposition that he was a Falun Gong leader in China. This appears at pages 30 to 31 of the RRT's decision. The RRT went on to specifically refer to the document in the following terms:

The tribunal also considered the documents provided by the applicant, including the arrest warrant, criminal court verdict and medical report of 20 August 2002 and finds that it cannot accept the documents as they do not outweigh the problems in the applicant's evidence. Also, for the reasons given above, that the tribunal does not find that the applicant was a Falun Gong practitioner and of any interest to the authorities. The tribunal also noted the advice of the document investigation unit in regard to accepting the arrest warrant and criminal court verdict documents at face value.

Further, the tribunal notes from the independent country information that he would not have been able to leave China using a passport issued in his own name if he was a dissident and sentenced on 9 October 2002 as the authorities thoroughly check prior to departure. The tribunal finds that he would not be on a wanted list if he returns to China. The tribunal finds that he is not of adverse interest to the authorities. The tribunal also notes from the independent country information there do not seem to be any cases of Falun Gong practitioners returning to China who were subjected to legal or administrative penalties who were not also engaging in conduct illegal under Chinese law.

5. The advice of the document investigation unit appears in the court book and in substance sets out that there are matters apparent on a close examination of the ink and toner on the document that give rise to concerns as to whether or not the document is genuine, but that the examiner's report is inconclusive. It is clear from the submissions of the applicant that he was made aware of the substance of this report during his hearing before the RRT and this is recounted in the RRT's decision at the bottom of page 14.

6. The applicant was given an opportunity to make some further submissions after the RRT hearing which he took advantage of by sending a letter of 1 February 2004. He does not address the comments of the document investigation unit in that letter. At no time has he sought to obtain his own evidence with respect to the document examination.

7. In these circumstances it is difficult to conclude that there has been a breach of the rules of procedural fairness as the RRT clearly raised the issue and evidence with the applicant and he was given time to respond. Ultimately, the RRT did not make a formal finding as to whether the document was genuine or a forgery, and given the state of the evidence from the document examiner, it would have been difficult for the RRT to do so, except in reliance upon the applicant's version and credit. For other reasons set out in the decision they rejected his version of events.

8. Further, the RRT's reference to the fact that the authorities would check a person leaving China and see if he was a dissident who had been sentenced appears a logical and probative matter leading to a conclusion that the documents were not likely to be genuine.

9. In the circumstances I do not find that there has been a breach of the rules of procedural fairness, nor is there an illogicality in the way in which the RRT has dealt with the evidence in this regard.

10. The next point raised on behalf of the applicant was a claim that the decision of the RRT was so unreasonable no reasonable decision-maker would make it. This is in effect a submission in accordance with the principles in the matter of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]

1 KB 223. The Wednesbury case principles apply to the exercise of a discretion, not to the fact-finding process of the RRT. I deal with this submission on the basis that it is intended to allege that the finding of the RRT that he was not a Falun Gong member is not supported by any probative evidence. That submission simply cannot stand in light of the extensive discussions by the RRT of the evidence of the applicant, the circumstances under which he left China, the circumstances of his claim and the country information.

11. It appears to me that it was open to the RRT on the material before it to come to the conclusion that it did, that is, that it did not accept he is a Falun Gong practitioner.

12. The next matter raised was a complaint that the RRT said in its decision that the country information indicates that only the leaders of Falun Gong are likely to be arrested and that this is contrary to the evidence. The respondent refers to the evidentiary foundation for this comment at some length in its submissions in the following terms:

21. The impugned "finding" was not a material finding at all, but was an observation drawing on cited country information which tended to support a finding reached through independent analysis.

22. Further and in any event, the context in which the observation as made is important, and in the light of that context [it] can be seen that the country information amply supported the observation: The observation was made by the RRT in the context of a claim by the appolicant that the had been arrested, detained, charged and convicted by reason of his involvement in Falun Gong. Having referred to the evidence the RRT stated (at CB 1235-6):

The Tribunal does not accept that he is a Falun Gong practitioner and also does not accept that he was a Falun Gong leader in China as his knowledge about the Falun Gong would have been expected to have been much greater. The Tribunal therefore does not accept that he (as provided in his personal statement of 1 February 2004 which is inconsistent with his evidence at the hearing) organised, distributed and also taught some people Falun Gong. The Tribunal notes the late date these claims were raised and the inconsistency with his earlier claims and evidence at the hearing. Therefore the Tribunal does not accept that he was arrested, imprisoned and charged as claimed. The Tribunal is supported in its finding by the independent country information above that indicates that only leaders of the Falun Gong were arrested and imprisoned for any length of time.

23. The independent country information referred to by the RRT in its decision (and/or inferences drawn from that independent country information) provides support for it observation. In particular, the country information indicated that "judicial prosecution" was concentrated on organizers of Falun Gong and distributors of Falun Gong material: CB 124.5, 126.5. If, in spite of the context of the applicant's claims, administrative mistreatment were taken to be encompassed by the RRT's observation, then (as the RRT noted) there are inconsistencies between various sources of country information as to the level of involvement in Falun Gong liable to lead to mistreatment [CB 128.9]. However, even on this reading of the observation made by the RRT, there is some information which supports its observation: e.g. the DFAT material quoted at CB 129-130.3. Accordingly, the applicant's complaint in this regard is at most a complaint about the weight the RRT accorded to the competing evidence, not an allegation of jurisdictional error.

13. I accept the submissions of the respondent in this regard.

14. I have also considered whether there has been a potential failure of the RRT to provide the country information to the applicant and whether this would amount to a breach of the rules of procedural fairness. It appears that such information would not have to have been provided to him by way of a copy of the country reports: See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.

15. In this case there is no evidence upon which I could rely to show that these issues were not raised with the applicant at his hearing before the RRT. It is for the applicant to produce such evidence if any is available. In the circumstances I do not find that this ground is made out.

16. The next matter raised by the applicant was that the RRT did not collect all of the evidence relevant to the claim that the officials of the People's Republic of China are interested in ordinary Falun Gong members. The applicant says the RRT ought to have made further inquiries or talked to other people. The RRT is not required to make such independent inquiries and a failure to do so is not a reviewable error. During argument the applicant at one stage asked what other evidence he could provide. This was a rhetorical question to make the point that effectively he had no other evidence in support of the submission that it was unfair to reject his claim when there was nothing more he could do to prove it. That is invariably the position of a person when a RRT or court makes a finding against them on a matter of fact. It does not logically show an error on the part of the RRT.

17. The final matter relied upon by the applicant was a claim that the RRT did not have regard to his driver's licence and national ID card. He says that they were not forwarded to the RRT by the respondent. The relevance of the driver's licence was that it was evidence as to which particular city he lived at for a period of time. However, the RRT accepted his evidence on this point when it accepted his work history in China. It is not an error that is reviewable that the RRT has failed to have regard to a specific piece of evidence that supports a finding that it made in favour of the applicant. The same reasoning applies to the national identity card because that card simply goes to prove that he was a citizen of the People's Republic of China, a matter of fact accepted by the RRT.

18. A further matter that I should address was that the applicant complained that sufficient regard was not had to his medical report. The medical report was referred to by the RRT as set out in the quote above. There does not appear to be anything in the medical record which compels a decision different to that which the RRT reached. It does not appear to me that this is a reviewable error on the part of the RRT as it has dealt with the report on the basis that it did not outweigh the other problems with the applicant's evidence which is a logical conclusion open to be drawn despite the report.

19. In the circumstances I have found no basis for reviewing the decision of the RRT and therefore I must refuse the application of the applicant. I order that the application be dismissed.

20. In the circumstances of this case the applicant has been unsuccessful. This is a proper basis for ordering that the applicant pay the respondent's costs. There are no other facts or circumstances in this case that would indicate some different order should be made with respect to costs. The amount of costs sought by the Minister at $6,500.00 is reasonable having regard to the Federal Magistrates Court scale. In the circumstances I order that the applicant pay the respondent's costs fixed at $6,500.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date:
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