NAZZ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application under s 39B(1) of the Judiciary Act 1903 (Cth) for prerogative relief in respect of a decision of the Refugee Review Tribunal ("RRT") made on 24 November 2003 and handed down on 17 December 2003. The RRT affirmed a decision of the delegate of the respondent ("Minister") made on 20 February 2003, refusing an application for a protection visa. 2 The sole ground of the application is as follows: "[The RRT] found that the applicant had failed to satisfy the basic requirement for the grant of the visa. In making this finding, RRT ignored parts of the applicant's claims in the statement attached to his application for the relevant visa submitted. In doing so, RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give [sic] rise to jurisdictional error." 3 At a directions hearing held on 6 February 2004, the applicant was directed to file and serve written submissions on or before 9 March 2004. No written submissions were filed. The applicant appeared without legal representation at the hearing. The only submission he made at the hearing was that the decision of the RRT "was unjust". Indeed, in his brief oral submissions the appellant volunteered that he was not in fact a Falun Gong practitioner. This admission is not easy to reconcile with the claims made in support of his application for a protection visa. 4 The applicant is a citizen of the Peoples' Republic of China ("PRC"). He was born in 1960 and is now 43 years of age. He speaks, reads and writes Mandarin. 5 The applicant entered Australia on 11 February 1998, but returned to China six days later. He re-entered Australia on 17 March 1998. However, it was not until 31 January 2003 that he lodged an application for a protection (Class XA) visa. The applicant claimed that if he were to return to the PRC, he would be persecuted because of his "Falun Gong activities". 6 The delegate refused the application for a protection visa on 20 February 2003. On 20 March 2003, the applicant applied to the RRT for review of the delegate's decision. 7 The applicant gave evidence before the RRT at a hearing conducted on 7 November 2003. It appears that the applicant was questioned at some length by the RRT member. As already noted, the RRT handed down its decision on 17 December 2003 and affirmed the delegate's refusal to grant a protection visa. 8 In a statement accompanying his application for a protection visa, the applicant claimed that he had started to practise Falun Gong in 1997. Not entirely consistently, he claimed that during the three year period 1995 to 1998, he had always been an enthusiastic practitioner of Falun Gong. He said that the Chinese authorities had not commenced their crack-down on Falun Gong practitioners at the time he had departed the PRC, but that after the crack-down had commenced the PRC had become "a hell for Falun Gong practitioners". He claimed that in November 1999, he received a notice from his employer, the Chinese Academy of Science, that he should submit a written confession concerning his Falun Gong activities, or face removal from his position. The applicant resisted this direction and kept practising Falun Gong in Australia, with the consequence that in February 2000 his qualification as an engineer was cancelled and he was forced to resign his position. 9 The applicant claimed that he dared not to return to the PRC because of the "miserable news" that he had gleaned from Chinese newspapers that Falun Gong members were persecuted by the Government. He also expressed his belief that the Chinese government had targeted him, since his application for a passport renewal had been refused by the Consulate on the ground that he was a Falun Gong practitioner and that his activities endangered the government of the PRC. 10 At the hearing before the RRT, the applicant said that he had not originally wished to apply for refugee status, but some people from his work unit, the Chinese Academy of Science, had been arrested. The applicant claimed that the arrests had been related to his activities, because he had sent the arrested workers information by registered mail. The workers had since written "remorse letters" and had mentioned the applicant's name. Accordingly, he was known to the authorities. The applicant claimed that it was the arrests that prompted him to apply for refugee status. 11 The RRT found that the applicant had provided inconsistent reasons for his actions, exaggerated, dissembled, admitted some of his claims were false and raised new issues at the hearing. For these reasons, the RRT did not regard the applicant as a credible witness. The RRT also found that the applicant's evidence concerning his education was exaggerated and inconsistent. The RRT did not accept the applicant's evidence that he was an engineer and found that his claims concerning his school and university education were false. 12 The RRT considered that the fact that the applicant had returned to the PRC from Australia in February 1998 showed that he did not, at that time, have a subjective fear of persecution in the PRC. Indeed, he had not claimed to have a fear at that time. 13 The RRT pointed out that, although the applicant knew the principles of Falun Gong, he did not know the names of the so-called "five exercises". Furthermore, in his evidence he stated that he did not have a great belief in Falun Gong and, although he was a member of the organisation, he did not practise it very much. According to the RRT, the applicant was unable to provide proof that he practised Falun Gong in Australia. On the basis of this state of evidence and the RRT's view that the applicant was not a credible witness, the RRT found that he was not a Falun Gong practitioner and had not practised Falun Gong either in the PRC or Australia. 14 The RRT also rejected the applicant's claim that his passport had not been renewed by the PRC Consulate because he was a Falun Gong practitioner. The RRT made this finding because the applicant admitted at the hearing that he had not applied for a renewal and had simply turned round and left the Consulate without making an application for renewal of his passport. The RRT also rejected the applicant's revised version of events, which was that he had not attempted to renew his passport because other Falun Gong members had told him it would be futile to do so. The RRT considered that the applicant had manufactured this evidence at the hearing. 15 The RRT noted that the claim concerning the so-called "remorse letter" had been made by the applicant for the first time at the hearing. This account, so the RRT found, was contrived by the applicant in order to enhance his claims. The applicant had simply been unable to provide any consistent reason as to why he had not raised the "remorse letter" at an earlier stage. 16 For these reasons, the RRT concluded that the applicant did not face a real chance of persecution should he return to the PRC. Accordingly, the RRT was not satisfied that the applicant had a well-founded fear of persecution for any Convention related reason. 17 As can be seen from the account of the RRT's reasons, the applicant failed in his application to review the delegate's decision because the claims made by the applicant in support of his application for a protection visa were comprehensively disbelieved. Those claims were carefully recorded and the RRT gave cogent reasons for rejecting them. In particular the RRT did not accept that the applicant was a Falun Gong practitioner. In view of the applicant's own evidence, it is difficult to see what other finding the RRT could have made. 18 Insofar as the applicant contends that the RRT's decision was one that could not reasonably have been reached, there is no basis for the contention. The conclusion reached by the RRT was plainly open on the material before it. The fact that the applicant emphatically disagrees with the RRT's findings is not a basis for concluding that the decision was affected by jurisdictional error: see Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5], per Gleeson CJ. Indeed in this case it seems that the applicant does not really disagree with the RRT's key findings, but is simply dissatisfied with the refusal to permit him to remain in Australia. 19 The applicant has not identified any error in the approach of the RRT, much less one that could amount to a jurisdictional error sufficient to found prerogative relief. 20 The application must be dismissed. The applicant must pay the Minister's costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.