MZWXS v Minister for Immigration - [2005] FMCA 1348

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWXS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1348

MIGRATION – Protection visa – judicial review – second decision by Refugee Review Tribunal – first decision remitted by Court – role of Tribunal in considering remitted application – no jurisdictional error – claims properly considered.

Applicant:

MZWXS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 236 of 2005

Judgment of:

McInnis FM

Hearing date:

31 August 2005

Delivered at:

Melbourne

Delivered on:

16 September 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms S. Burchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 236 of 2005

MZWXS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application, as amended, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 5 January 2005 whereby a decision of the delegate refusing a protection visa was affirmed.
The applicant, who was born on 27 September 1961 is a male citizen of the People's Republic of China. He arrived in Australia on 18 February 2002, travelling on a visitor's visa. On 28 February 2002 he lodged an application for a protection visa. On 1 July 2002 a delegate of the first respondent refused to grant the protection visa and on 1 August 2002 the applicant sought review of that decision by the Tribunal. The Tribunal affirmed the delegate's decision in a decision dated

13 November 2003 (the first RRT decision).
The first RRT decision was then subject to an application for judicial review filed in this court and, it would appear, that on 13 October 2004 the matter was remitted for reconsideration by a differently constituted Tribunal. It appears that the court then identified an error in the first decision, namely, that the tribunal at that time had not made a direct finding in relation to a particular claim by the applicant that he was beaten and had his arm broken by the police.
The applicant in an amended application dated 22 June 2005 relies upon a number of what are properly described as unparticularised grounds of jurisdictional error. However, before this court and in the amended application it is evident that there are effectively two significant issues relied upon by the applicant. Those issues are set out in the particulars subjoined to paragraph 4B(b) of the amended application as follows:-
“The Tribunal takes into account irrelevant consideration and based on ‘no evidence’ to conclude that after the applicant was detained the applicant shouldn't continue to run my business.
Again, The Tribunal fails to take into account relevant evidence and based on ‘no evidence’ to conclude to being able to obtain passport by bribing then I am not at the risk of being persecuted by Chinese authorities. (sic)”
Those grounds set out above taken from the amended application have been properly identified by the respondent as raising issues that the tribunal failed to take into account relevant material and, in the alternative, taking into account an irrelevant consideration. The failure to take into account relevant material appears from the applicant's contentions of fact and law to be based upon the failure of the tribunal to take into account the assertion by the applicant that he was only able to obtain a passport through bribery. The irrelevant consideration is identified by the applicant as making a finding based upon the applicant continuing to conduct his restaurant business in China between the date when he was allegedly detained and over the seven‑month period thereafter to the date when he departed China.
The applicant, who was unrepresented, appeared before this court with the assistance of an interpreter and essentially re-stated the matters set out in his contentions and amended application. It is noted that he otherwise sought to rely upon an affidavit sworn by him on 1 March 2005, although I note in passing that that affidavit essentially seeks to set out factual material which in essence had been placed before the tribunal.
It should be noted at the outset that where a matter is remitted by a court to be determined by a differently constituted tribunal, then it is expected that the differently constituted tribunal will rehear and determine the matter as a fresh application and in that process will take into account material which has been identified by the court as material which perhaps was omitted by the first or other tribunal. In rehearing an application it is expected that a second tribunal will do more than simply provide a cursory examination of the application and in particular provide more than a cursory assessment of the issue which had been overlooked by the first tribunal.
In this case the issue clearly identified as the basis for remittal was the significant allegation by the applicant that he had been detained and ill treated by Chinese authorities. It is perhaps therefore not surprising that in this application the applicant has raised what he no doubt regards as legitimate concerns in relation to the second tribunal's decision and in particular its findings in relation to the issue of detention and ill treatment.
It is relevant to set out the tribunals' findings in relation to critical issues relevant to the grounds now relied upon as follows:-
“The Tribunal also finds the evidence concerning his arrest, detention and ill‑treatment in detention and the consequences of this to be unconvincing. It has taken into account that he alleged he took part in a sit‑in in front of a government building on what was one of the busiest days for his business. His description of the developments on the day was broad and lacking in the sort of detail which could be expected of a person who, on his own evidence, had not taken part in a protest before that time. It was a dangerous thing for Falun Gong supporters to do. The Tribunal is unconvinced that the Applicant was there.
The Tribunal has carefully considered his account of his detention. There is no doubt that Chinese authorities do detain citizens without charge and that ill-treatment of people in detention is common. The Tribunal also accepts that the Applicant has had a broken arm and that it necessitated surgery. What it does not accept is that these factors come together in the Applicant's case. In coming to this conclusion, it has taken into account that, following his alleged detention, the Applicant continues to run his businesses and then obtains his passport and is able to exit the country without hindrance.
A factor in rejecting the Applicant's account of the detention and its consequences is his own inconsistent evidence in terms of the closure of his restaurants. He previously had claimed that one was closed down by the PSB after his period of detention, prior to his departure from China. At his hearing he told the Tribunal that he left managers and his wife in charge of the restaurants and that one was closed down, by whom he did not know, five months after he left China. The Tribunal accepts that the restaurants no longer operate but does accept this is because the authorities have stepped in to further harm him for reasons of his Falun Gong association. It is plausible that his restaurants have been closed down by the authorities. However, the Tribunal is satisfied that it is not for the reasons claimed by the Applicant.
In rejecting his claim to have been detained in the way and for the reasons claimed, the Tribunal thereby rejects the veracity of the documents submitted, purporting to be official documents relating to his past detention and future arrest. This is an age in which almost any document is able to be obtained by forgery or by fraud. Documents therefore do not stand alone but take their place with the consideration of all of the evidence before the Tribunal.
The Tribunal also has taken into consideration that the Applicant left China some seven months after his alleged detention. While he has claimed to have paid extra money to get his passport, the Tribunal does not find that this means he was a wanted man in any sense. It simply indicates that he comes from a society where corruption is rampant in many areas of the bureaucracy. The Tribunal finds that the payment of extra money or a bribe is not an indicator of a risk of persecution of the Applicant.”
It is also noted that in its reasons the tribunal assessed the claim put by the applicant, which in brief terms was a claim based upon essentially the applicant's well founded fear of persecution or his practice of Falun Gong. In considering that essential element of his claim, the tribunal questioned the applicant at the hearing in relation to Falun Gong and drew adverse conclusions in relation to that issue, including findings that it was not satisfied that the applicant has more than a "rudimentary knowledge of the belief system of Falun Gong".
After assessing the answers to various questions, and in particular answers in relation to the role of the applicant in distribution of pamphlets and encouraging participation of others in Falun Gong, the tribunal made a specific finding that in this instance it was not satisfied that the applicant was a committed "participant" in the Falun Gong movement. It went on to state the following:-
“… It is satisfied that his lack of knowledge of the belief system, Falun Gong and his failure to practise it while in Australia undermine his claim to be a person who is being persecuted by the Chinese authorities in the past and will be so in the future for reasons of his association with Falun Gong.”
In my view, the adverse finding in relation to the applicant's role in the Falun Gong movement would of itself be fatal to the application for a protection visa given that that is the basis upon which the applicant has a well founded fear of persecution and accordingly it may not be necessary to then consider the further material. However, part of that material at least concerns detention and ill treatment claimed to be as a result of Falun Gong membership and it is arguable at least that a detention for a person for no other apparent reason may be attributable to membership of Falun Gong, which may in turn strengthen the argument of the applicant being a genuine committed participant in the Falun Gong movement.
In considering the manner in which the second tribunal considered the issue of detention and ill treatment, it is relevant in my view to consider the reasons set out earlier in this judgment. Whilst those reasons somewhat curiously and by inference seem to suggest that a person released from detention and ill treatment would not then normally conduct a restaurant business, that of itself is only one factor taken into account by the tribunal. If it were the only factor and if it was a factor then taken into account by the tribunal in rejecting the connection between ill treatment and detention, then it may well be that an error has occurred in the sense that it has taken into account as a determinative factor of an integer of this case a factor which should not of itself be relied upon as the sole basis to reject a claim by the applicant of detention and ill treatment.
However, that factor, which on its own would not logically lead to a conclusion rejecting the claim for the obvious reason that it would be absurd to suggest that people held in detention would automatically have their businesses closed upon release, does not apply in the present case as the tribunal has further considered other issues. It has, for example, considered what it regards as different versions of events concerning the closure of the restaurant. It has otherwise considered the evidence of the applicant's arrest, detention and ill treatment and rejected an assertion by him of participation of a sit‑in in front of a government building. It was unconvinced the applicant was there at the ‘sit‑in’ on a day which would have been one of the busiest days for his restaurant.
Whilst the applicant before this court referred to the restaurant employing approximately 100 people and that there was a manager, that material, though not received by this court, highlights the differences in facts which have to be determined by the tribunal.

I accept that the consideration of competing factual evidence and the analysis of those facts leading, as it has in this case, to an adverse credibility finding against the applicant are matters for the tribunal. In this instance those matters were presented to the tribunal in one form or another and it reached conclusions about the level and extent of the applicant's involvement in certain activities of the Falun Gong, including the sit‑in to which reference has been made.
The Applicant otherwise relied upon the discrepancies in relation to the closure of the restaurant and other material set out in the extract referred to earlier in this judgment and concluded that whilst it might be plausible that the restaurants were closed down by the authorities, it did not accept that the closure was for the reasons claimed by the applicant. It is important to assess the reasoning in the context of other findings. The significant other finding in this matter, after examination of the applicant, was that he was not a committed participant in the Falun Gong movement. That finding, combined with the other claims by the applicant in relation to his alleged detention and ill treatment, that is, the broken arm, was a finding reasonably open to the tribunal on the basis of the material then presented by the applicant to the tribunal. Accordingly, there is no error in the tribunal failing to take into account an irrelevant matter.
In relation to the issue of the failure of the tribunal to take into account a relevant matter, it is noted that in considering the issue of the passport the tribunal has made a finding of fact. Having regard to its findings in relation to credibility, which is a matter of law or a matter for the tribunal, and having regard to its other findings of fact in relation to his level of involvement with Falun Gong, and moreover rejecting his claims in relation to detention and ill treatment, I am satisfied that it was reasonably open to the tribunal to then make a general finding in relation to the issue of the passport.
It cannot be claimed in the present case that the tribunal has failed to take into account a relevant matter, as it has clearly made a specific finding set out earlier in this judgment in relation to that issue. The finding it made, however, is a finding of fact which does not support the application but rather is a general finding in relation to the obtaining of a passport. Specifically, the tribunal in dealing with the passport issue, whilst prepared to accept that a bribe may have been offered, does not in this instance accept that the bribe was paid in circumstances where that fact could be used to confirm that the Applicant was a "wanted man" in any sense or that he had a well founded fear of persecution by reason of his participation in the Falun Gong movement. It was open to the tribunal to make the finding it did that the payment of the extra money or bribe was not an indicator in this instance of a risk of persecution of the applicant.
It is noted that the material presented to the tribunal in relation to this issue, the following reference is found in the tribunal decision (Court Book, page 95):-
“He said that nothing untoward had happened to him between August when he was released and the following February. He had used the time to get his passport for which he paid extra money. He kept expecting something to happen to him as it still could in the future.”
It is clear in the Tribunal decision that, having considered that issue, it then drew the conclusion referred to earlier, and I am satisfied in the context of the claim then before the Tribunal that in this instance it could not be suggested that it has failed to take into account a relevant matter but rather it has dealt with the issue and made a finding different to the finding urged upon it by the applicant. That process of itself does not constitute an error of law.
For the reasons given it follows that I am not satisfied there has been any jurisdictional error or error of a kind which would permit the court to set aside the second RRT decision. Accordingly the application as amended should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 16 September 2005