NBDK v Minister for Immigration - [2007] FMCA 2078

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBDK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2078

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal should have considered the possibility of past persecution as alleged – whether the Tribunal correctly applied s.91R(3) of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 474; pt.8 div.2

Minister for Immigration and Multicultural Affairsv Rajalingam (1999) 93 FCR 220

First Applicant:

NBDK

Second Applicant:

NBDL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2729 of 2006

Judgment of:

Emmett FM

Hearing date:

11 December 2007

Date of last submission:

11 December 2007

Delivered at:

Sydney

Delivered on:

11 December 2007

REPRESENTATION

Second applicant appeared in person

Counsel for the Respondent:

Ms Clegg

Solicitors for the Respondent:

Ms A. Mansour, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2729 of 2006

NBDK

First Applicant

NBDL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 15 August 2006 and handed down on 5 September 2006.
The first named applicant is the husband of the second named applicant. Both applicants claim to be entitled to protection visas because they fear persecution from authorities in the PRC by reason of having become Falun Gong practitioners in Australia.
The applicants arrived in Australia on 13 November 2002 having departed legally from Beijing Airport on passports issued in their own names.
On 21 November 2002, the applicants lodged applications for a protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act, although the applicant wife’s claims were as a family member.
In his protection visa application, the first named applicant claimed that he feared persecution by PRC authorities including the Public Security Bureau (“PSB”) for a perceived connection with Falun Gong practitioners through the applicant wife’s family and, in particular, a remote relative of the applicant wife’s.
On 27 March 2003, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas on the basis that the applicants are not people to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 13 April 2003, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The applicants provided “arguments of review” in support of the review application. In their review application, the applicants stated that the Delegate erred in finding that the applicants’ evidence had been inconsistent with country information where the applicants had commented on that information and the alleged inconsistencies.
On 5 March 2004, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant protection visas to the applicants.
On 28 April 2006, the decision of the Refugee Review Tribunal was remitted by consent by Federal Magistrate Lloyd-Jones for determination according to law.
On 15 August 2006, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant protection visas to the applicants.
On 29 September 2006, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision, dated 15 August 2006.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

Applicant’s claims and Tribunal’s decision dated 15 August 2006

The applicants’ claims and the Tribunal’s decision are accurately set out in the written submissions of the first respondent’s counsel, Ms Clegg, as follows:
“Applicant’s claims
1. The first applicant set out his claims to be a refugee in his protection visa application.[1] The second applicant (wife) did not advance her own claims to be a refugee in the protection visa application.
[1] CB 92 - 95
2. The applicants claimed that they were self employed in China and together ran a business which traded in medicines, primarily traditional Chinese herbal medicines.
3. In short, the first applicant claimed that he and his wife were detained and questioned by the PSB in March 2001 after the applicant's wife was found by the PSB to have assisted a remote relative of hers with Chinese medicines. The medicines were allegedly provided to the relative to help him recover from serious illness he had suffered as a result of a long term detention by authorities in a mental hospital owing to his practice of Falun Gong. The applicants were detained for 5 days and released after the payment of a bribe of RMB 20 000.
4. Next, in middle to late 2001 the first applicant was forced, under threat of harm by a senior PSB officer, to peddle the PSB officer’s brother’s ‘quack remedies’ through his business. When the first applicant finally refused to do so, he was arrested and denounced as being a supporter of Falun Gong practitioners. He claimed to have been detained for two months and only released upon being forced to make a ‘confession’ admitting to his crime.
5. After the first applicant wrote a ‘petition’ to the provincial and central governments complaining about the local PSB officer, he was detained for a third time from December 2001 to March 2002. In April 2002, after the first applicant was released, he and his wife secretly moved from Henan to Fujian province. In June 2002 after the first applicant was advised by a friend in the PSB that he had a ‘black record’ and would be sent back to Henan, the applicants moved to Shandong province where they made arrangements to travel overseas in order to escape China and survive. The applicants then travelled to Australia with a tourist group.
6. In a submission dated 13 June 2006 the applicants claimed for the first time that they had become interested in the practice of Falun Gong in Australia by the end of 2003. At the 6 July 2006 hearing the applicants claimed they started doing Falun Gong exercises in about March 2006. At the 6 July 2006 hearing the Tribunal also took evidence from three witnesses who supported the applicants’ claims that they had become Falun Gong practitioners in Australia.[2]
[2] CB 167, 275.3, 283.4
The Tribunal’s decision
7. The Tribunal:
a) comprehensively set out the applicants’ factual claims (both written and oral);[3]
[3] CB 272 - 285
b) set out the terms of the s 424A letter dated 6 July 2006, and the applicant’s response to the letter;[4]
[4] CB 287.6 – 289.1
c) accepted that the applicants were citizens of China;[5]
[5] CB 289
d) addressed and rejected (giving full reasons) the claim that the applicants had been implicated by authorities for assisting Falun Gong practitioners in China;[6]
[6] CB 289.5 – 289.8
e) did not accept that the applicants wrote complaint letters to authorities or attracted harm and/or negative political profiles;[7]
[7] CB 289.8
f) noted that even if the first applicant had become implicated in a ‘quack’ medical scam, indicated that it would find that this were purely a criminal matter;[8]
[8] CB 289.9
g) did not accept the claims about the quack medicine scheme and subsequent detention;[9]
h) dismissed as implausible and inconsistent the applicants’ evidence about the help they obtained to avoid and circumvent arrest by the authorities;[10]
i) did not accept the applicants’ claims as to why they were living in Shandong in mid 2002 when they obtained their passports and visa;[11]
j) disregarded the applicants’ Falun Gong conduct in Australia pursuant to s 91R(3) of the Act;
k) considered and rejected a question as to whether upon return to China the applicants’ might have imputed political profiles. The Tribunal found that there was no evidence to suggest the applicants would face interest in China;[12]
l) found that the applicants were not credible witnesses;[13]
m) concluded that the applicants were not persons to whom Australia owed protection obligations.[14]
The application for an order to show cause
8. There are two particulars provided to the assertion that the Tribunal’s decision contains a jurisdictional error. They are referred to below as grounds of review.”
[9] CB 290.1
[10] CB 290.2
[11] CB 290.3
[12] It is likely that the words ‘with Falun Gong in the PRC’ at about CB 290.5 was intended to read ‘with Falun Gong in Australia’. In either case, there would be no jurisdictional error, so the Court is not required to draw an inference about this in any event: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 92 where Kirby J noted that judicial review is not a forum for interfering with the ‘evidentiary and factual basis of administrative decisions on the grounds of minor infelicities or trivial lapses in logic’.
[13] CB 290.6
[14] CB 290.8

The proceeding before this Court

The applicants were unrepresented before this Court although had the assistance of a Mandarin interpreter.
The first named applicant did not attend this hearing, however, the second named applicant informed the Court that she appeared on behalf of both applicants because her husband, the first named applicant, was at home ill.
The applicant wife, being the second named applicant, confirmed that the applicants relied on the grounds identified in the application filed on 29 September 2006. Those grounds are as follows:
“1. The decision involved jurisdictional error in that:
(i) The Tribunal rejected the applicants’ numerous claims on no reasonable ground.
Particulars:
The Tribunal failed to accept that applicants’ claims that they had helped Falun Gong practitioners in China and therefore had become subjects of governmental persecution. By reaching such finding the Tribunal did not follow the rule that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).
(ii) The Tribunal incorrectly applied S91R(3) of the Migration Act.
Particulars:
The Tribunal ignored some evidence of significant importance, Such evidence includes a letter from the President of the Falun Dafa Association in NSW, John Deller, and also the oral evidence given by witnesses who were Falun Gong practitioners.
S91R(3) only prevents the Tribunal from considering conducts that the applicants “engaged in” for the purpose of strengthening their claims. Therefore the Tribunal should not rely on S91R(3) to ignore the above evidence, because such evidence was given by the third party.”
The grounds of the application were interpreted for the assistance of the applicant wife and she was invited to make submissions in support of the grounds and in support of her application generally. The applicant wife raised for the first time a complaint that, at the hearing before the Tribunal, the Tribunal did not give her sufficient time to answer the questions and asked her the same question several times and, if her answers were not the same, the Tribunal said she lied.
I pointed out to the applicant wife that she had been given leave by this Court on 7 December 2006 to file and serve an amended application giving complete particulars of each ground of review relied upon and any additional evidence, including any transcript of the Tribunal hearing. The applicant wife confirmed that no document had been filed by or on behalf of the applicants in accordance with those directions.
Plainly such an allegation requires evidence. The applicants have had more than twelve months to file and serve any evidence in support of their application and received free legal advice from the Court’s panel advice scheme on 20 February 2007.
In the circumstances, the Court is left with the Tribunal’s decision as the only record of the hearing. The applicants attended a second hearing before the Tribunal, differently constituted, at which they gave evidence. A fair reading of the Tribunal decision discloses that the Tribunal explored the applicants’ claims in detail with each of the applicants. A fair reading of the Tribunal decision discloses that the Tribunal raised concerns about the applicants’ evidence, both written and oral and noted the applicants’ responses.
On 6 July 2006, the Tribunal wrote to the applicants identifying information arising from the applicants’ claims that may cause the Tribunal to decide that the applicants were not entitled to a protection visa application. In particular, the Tribunal’s letter raised the issue of the applicants’ recent claim to have become involved with the Falun Gong movement in Australia in 2006. The Tribunal’s letter identified concerns about that claim and informed the applicants that the Tribunal would have to consider whether the applicants’ association with the Falun Gong movement in Australia was conduct engaged in for the purposes of strengthening their claims to be refugees. The Tribunal’s letter invited the applicants to comment on the matters raised in that letter.
On 19 July 2006, the applicants wrote a detailed response to the Tribunal’s s.424A letter of 6 July 2006. The applicants’ responses were taken into account by the Tribunal and referred to in detail in its decision.
A fair reading of the Tribunal’s decision does not suggest that either of the applicants ever complained to the Tribunal about the time they had to provide answers.
In the circumstances, there is no evidence before the Court to suggest that the Tribunal did not give the applicants sufficient time to answer questions and a fair reading of the Tribunal’s decision does not lead to any such inference.
In relation to the applicant wife’s complaint the Tribunal asked the same question several times and if the response was not the same the Tribunal said the applicant lied, again, such an allegation requires evidence, at least a copy of a transcript of a Tribunal hearing. In any event, such a complaint appears to be more in the nature of a disagreement with the findings made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake.
Ground 1 of the application appears to allege error on the part of the Tribunal for failing to accept that the applicants had helped Falun Gong practitioners in China and had therefore “become subjects of governmental persecution.” The ground appears to allege that the Tribunal was unable to make that finding with confidence and was therefore obliged to consider the possibility of past persecution as alleged in accordance with Minister for Immigration and Multicultural Affairsv Rajalingam (1999) 93 FCR 220 (“Rajalingam”). The Full Court of the Federal Court in Rajalingam stated that where a decision maker may be uncertain that past events occurred as alleged it may be that the decision maker is required to engage in “reasonable speculation” in deciding whether there is “a real substantial basis for the applicant’s claimed persecution” (per Sackville J at [62] - [63]). Such circumstances arise where the decision maker thinks they probably did not. (see para 62 and 129).
However, in the proceeding before this Court, a fair reading of the Tribunal’s decision does not suggest it had any doubts about its findings. In particular, in relation to the applicants’ claims of past persecution the Tribunal stated:
“The Tribunal finds that the applicants’ claims about assistance to Falun Gong members and subsequent attention in the PRC are baseless and fabricated.”
The Tribunal found that the applicants were not credible witnesses and that “the quality of their evidence is poor and forms a pattern with the vague, exaggerated and unimpressive evidence about “involvement” with Falun Gong in the PRC.”
Further, in relation to the applicants’ claims to have become Falun Gong practitioners in Australia in 2006, the Tribunal found that the applicants “have ingratiated themselves amongst genuine Falun Gong practitioners for the purpose of strengthening their claims to protection as refugees.”
In the circumstances, it cannot be said that the Tribunal was uncertain as to whether alleged events occurred. The Tribunal’s findings are a comprehensive rejection of the Applicant’s claims based on the adverse credibility findings made by the Tribunal. The adverse credibility findings made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
Credibility findings are a matter par excellence for the Tribunal. The first respondent submitted that
“The Tribunal unambiguously rejected the applicants’ claims as establishing that Australia owed the applicants protection obligations. There was no obligation upon the Tribunal in this case to ask itself ‘what if I am wrong’?”
A fair reading of the Tribunal’s decision bears out the accuracy of that submission, as discussed above in these Reasons.
Accordingly, ground 1 is not made out.
Ground 2 alleges that the Tribunal ignored evidence of Falun Gong practitioners in Australia supporting the applicants’ claims to be Falun Gong practitioners. However, a fair reading of the Tribunal’s decision makes clear that the Tribunal did have regard to the evidence of the applicants’ supporting witnesses in relation to their Falun Gong practice in Australia. To the extent that ground 2 alleges that s.91R(3) prevents the Tribunal from considering the applicants evidence and not the evidence of certain parties, such an allegation is misconceived.
The Tribunal found that the applicants had “ingratiated themselves amongst genuine Falun Gong practitioners for the purpose of strengthening their claims for protection as refugees”. Having made that finding, s.91R(3) of the Act obliges the Tribunal to disregard any conduct engaged in by the applicants in Australia.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered and correctly applied s.91R(3) of the Act to the facts as it found them to be. As stated above in these Reasons, those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.

A fair reading of the Tribunal’s decision makes clear that the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 29 September 2006, is dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 11 December 2007