BZABA v Minister for Immigraiton

[2011] FMCA 935

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZABA v MINISTER FOR IMMIGRAITON & ANOR [2011] FMCA 935

MIGRATION – Review by Refugee Review Tribunal (RRT) – application for extension of time for compliance pursuant to s.477(2) – application contends Tribunal’s decision affected by jurisdictional error – no jurisdictional error.

Migration Act 1958 (Cth), ss.36(1), 424A, 424AA, 424(1), 424(2), 425, 474, 477(1), 477(2), 477(2)(a)

Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant: BZABA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 386 of 2011

Judgment of: Burnett FM

Hearing date: 4 October 2011

Date of Last Submission: 4 October 2011

Delivered at: Brisbane

Delivered on: 4 October 2011

REPRESENTATION

The applicant appeared on her own behalf

Solicitors for the First Respondent: Sparke Helmore Lawyers

Solicitors for the Second Respondent: Sparke Helmore Lawyers

ORDERS

1. That the time for compliance with the provisions of s.477 be extended to 20 May 2011.

2. That the application filed 20 May 2011 be dismissed.

3. That the applicant pay the respondent’s costs, fixed in the sum of $5,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 386 of 2011

BZABA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant is a woman of approximately 35 years of age who is a national of the People’s Republic of China.  She previously lived in the Heilongjiang Province.  She arrived in Australia on a business short stay visa (456) on 23 May 2010.  That visa was valid until 23 June 2010.  On 23 June 2010 she applied for a protection visa, that is, a Protection (Class XA) visa.  The principal grounds for her protection claim were that it was not safe for her to live in China as she was a Falun Gong practitioner.  She was interviewed by a departmental delegate on 29 October 2010.  Following interview and consideration of the matters stated by her, her application for a protection visa was refused on 11 December 2010 and she was notified of that refusal by a letter of that same date.

2. The basis of the delegate’s refusal was that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.  The applicant then applied to the Refugee Review Tribunal on 30 January 2011 for a review of the delegate’s decision.  The tribunal heard the applicant’s claim, but ultimately determined the application against her by affirming the delegate’s decision not to grant her a Protection (Class XA) visa.  That decision was made on 13 April 2011.  The applicant subsequently applied to this court by application filed 20 May 2011 for judicial review of the tribunal’s decision.

3. At the outset it ought be noted that the applicant’s application for review was filed two days late and is incompetent by virtue of s.477(1) of the Migration Act 1958 (Cth) (the Act) unless the court makes an order extending time under s.477(2). The applicant has applied for an extension of time as required by s.477(2)(a) of the Act and has stated the need for extra time arose because of the time required to have the tribunal decision translated into Chinese for her comprehension. The period of delay is short and the applicant has provided some explanation for the delay. The respondent does not oppose the court making an order for an extension of time. That is despite the respondent contending that the application reveals poor prospects. In the circumstances, I will order that the time for compliance with the provisions of s.477 be extended to 20 May 2011.

4. In her application the applicant advanced three grounds.  First, the applicant contended the tribunal’s decision was affected by jurisdictional error as it failed to give consideration to a substantial part of her claims.  She contended the tribunal failed to give sufficient consideration to her explanation after the hearing.

5. Ground 2 contended that the tribunal rejected her credibility because she gave incorrect answers to some questions.  She contended that by doing so the tribunal ignored the fact “that human memory can go wrong sometimes”.  She contended the tribunal had asked her about things that happened two years ago.

6. By ground 3 the applicant contended that the tribunal compared her evidence to the evidence given by another visa applicant in her independent visa application and rejected her claims on the basis of the inconsistencies between them.  She contended that by doing so the tribunal had made a jurisdictional error.

7. As I have earlier indicated, the substance of the applicant’s claim for a protection visa was her contention that she was a person to whom Australia had obligations under the Refugees Convention because of a well-founded fear of persecution by the Chinese authorities on account of her engagement in the practice of Falun Gong.

8. In material she provided to the tribunal, including information provided in an interview before a delegate of the Minister, she gave oral evidence expanding on her written claims.  She claimed that her friend Jing Xiao, with whom she had travelled to Australia, and who also lodged an application for a protection visa, introduced her to Falun Gong in January 1999.  In broad terms, she made claims that her practice of Falun Gong improved her health, and that she practised Falun Gong regularly, and that she did so despite the fact that its practice was banned, and she was warned to stop practising.  She stated that despite ceasing practice in 1999 she resumed it in 2009 when she felt the authorities were no longer targeting Falun Gong practitioners.

9. She claimed that in August 2009 police came to Jing Xiao’s house where the applicant had practised Falun Gong with a group and that upon searching that house found Falun Gong materials.  She says subsequently the police visited her home and found Falun Gong materials at those premises.  She says she was taken to the police station with Jing Xiao, detained and forced to watch a brainwashing anti-Falun Gong video.  She says that she was released the next day after signing a statement promising not to practise Falun Gong any further.  They are, in summary, the matters that were placed by her before the tribunal.

10. In reaching its decision, the tribunal ultimately determined as a matter of fact that it did not accept that the applicant was a genuine Falun Gong practitioner in China or Australia.  The tribunal did not accept that she was introduced to it by her friend Jing Xiao or that she recommenced practising in 2009 or practised in Australia.  The tribunal did not accept that she would practise Falun Gong upon return to China and it did not accept that she had an interest in Falun Gong.  The tribunal concluded at paragraphs [126] and [127] of its reasons that in broad terms she was not, and never has been a Falun Gong practitioner; that she has ever been arrested, detained or otherwise experienced adverse attention in connection with Falun Gong; that she has come to the adverse interests of Chinese authorities in connection with Falun Gong; that Falun Gong is the applicant’s faith; that she would seek to practise Falun Gong on her return to China; and, that she is afraid to return to China because she is a Falun Gong practitioner.

11. Upon that basis, considering those matters singularly and cumulatively, the tribunal concluded it was not satisfied on the basis of the evidence before it that there is a real chance that the applicant would be persecuted in China for reasons of her religion, actual or imputed political opinion or any other Convention reason in the reasonably foreseeable future.  Accordingly, it concluded that the applicant did not have a well-founded fear of persecution for a Convention-related reason should she return to China.  It is in respect of those matters that the applicant now seeks judicial review.

12. Moving then to the first ground. In the first ground the applicant contends that the tribunal failed to give consideration to a substantial part of her claim. It is to be noted that when called upon at the hearing today to explain and particularise those matters the only particulars advanced by the applicant were that the tribunal asked her lots of questions and that the hearing lasted a long time. She complained to the effect that much of the questioning was repetitive. That matter of itself does not identify any failure by the tribunal to give consideration to a substantial part of her claim. Indeed, the detailed reasons provided by the tribunal belie any absence of a detailed consideration of the material placed before it by the applicant. Although the respondent in its submissions has sought to address ground 1 by reference to the s.424A letter, I do not think this submission is necessary in the context of this application, having regard to the applicant’s complaints.

13. The submission however, is correct, insofar as it addresses the true basis for the applicant’s application, and that is the applicant’s submission that she wanted to stay here, that is in Australia, and that she did not wish to go back to China.  She has good reason to wish to stay here in Australia because she has married since arriving here last year.  However, what she actually seeks, at least by implication, is a merits review, which authorities clearly state is impermissible in the context of judicial review.  Plainly, ground 1 cannot succeed.

14. Ground 2 contends that the tribunal rejected her credibility because she gave incorrect answers to some questions.  As I have just stated, it is impermissible for a court undertaking judicial review to review the merits in such an application, as has been stated earlier by appeal courts.  Matters of merit are matters for the tribunal, par excellence.  The ground advanced by the applicant demonstrates no basis for jurisdictional error, and also must be refused.

15. The third ground advanced by the applicant affects a complaint that the tribunal compared her evidence to the evidence given by another visa applicant in her independent visa application.

16. She contended that by rejecting her claims on the basis of the inconsistencies between her claims and those of another, the tribunal committed jurisdictional error.  In its submissions, the respondent noted that the applicant has failed to identify how jurisdictional error is established by the tribunal’s approach in comparing the applicant’s evidence to that of her friend, Jing Xiao, about their admitted common experiences, and then relying upon identified inconsistencies in the respective accounts to support its adverse credibility findings.

17. Insofar as any argument might be advanced by the applicant, the respondent contended that s.424(1) confers a general power on the tribunal to “get any information that it considers relevant”. That power is not limited by section 424(2) of the Act; See Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [37] and [48]. In any event, the respondent contended that the applicant was given the opportunity to comment on that information, both at the hearing and in response to the s.424A letter.

18. The tribunal decision indicates that it followed the procedure under s.424AA to put to the applicant information that it considered could be part of the reason for affirming the delegate’s decision. In this case, that information consisted of identified inconsistencies in the applicant’s evidence given at interview in her protection visa application, and at the tribunal hearing, as well as inconsistencies between the information given by her and her friend, Jing Xiao, at their respective tribunal hearings about their common experiences.

19. Indeed, it is noteworthy that in SZBYR v Minister for Immigration and Citizenship,[1] the majority observed, at paragraph [17], that the applicant’s information provided to the Minister’s delegate and the tribunal is not information in the statutory sense. As it noted, here the appropriate criterion was to be found in s.36(1) of the Act, being the provision under which the appellants sought their protection visa. The reason, or a part of the reason, for affirming the decision that is under review was, therefore, that the appellants were not persons to whom Australia owed protection obligations under the Convention.

    [1] (2007) 235 ALR 609

20. When viewed in that light, it is difficult to see why the relevant passages in the appellant’s statutory declaration would, itself, be information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.  Those portions of the statutory declaration did not contain in their terms a rejection, denial, or undermining of the appellant’s claims to be persons to whom Australia owed protection obligations.  Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

21. The evidence only became adverse to the applicant when it revealed inconsistencies between the accounts given. It follows that the information forming the reason, or part of the reason, for the tribunal’s findings essentially constituted the tribunal’s subjective appraisals, thought processes, or determinations, as well as the conclusions arrived at by the tribunal in weighing up the evidence by reference to the identified gaps and inconsistencies in the evidence. Of course, in this case the tribunal took a more cautious approach in putting matters to the applicant. In this regard, it appears to have been particularly cautious to the need to ensure there was fairness, but no such requirement is strictly required where s.424A has no application, particularly in the context of reasoning.

22. So much is also apparent from the observations of the High Court in SZBEL v The Minister for Immigration and Multicultural and Indigenous Affairs,[2] especially at paragraph [48] where, as the majority noted, procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would have been likely to run a serious risk of conveying an impression of prejudgment.

    [2] (2006) 228 CLR 152

23. It follows that there was no error in the procedure adopted by the tribunal, constituting a breach of s.425, and no jurisdictional error is revealed because the tribunal relied on the discrepancies in the applicant’s evidence, when compared to that of Jing Xiao.

24. As there is no demonstrated jurisdictional error in the tribunal’s decision, and the decision is a privative clause decision within s.474 of the Act, there are no grounds for review and the application is dismissed.

25. The applicant may not fully appreciate, but the usual rule is that costs follow the event, which means the loser pays the costs.  There is no reason in this case why the usual rule ought not follow.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  29 November 2011