NBDK v Minister for Immigration and Citizenship

[2008] FCA 696

FEDERAL COURT OF AUSTRALIA

NBDK v Minister for Immigration and Citizenship [2008] FCA 696

NBDK and NBDL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2543 of 2007

GOLDBERG J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2543 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBDK
First Appellant

NBDL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE OF ORDER:	7 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellants pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2543 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBDK
First Appellant

NBDL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	7 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court on 11 December 2007 whereby the Federal Magistrate dismissed the application filed on 29 September 2006 by the appellants for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 August 2006 and handed down on 5 September 2006 affirming the decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) not to grant the appellants Protection (Class XA) Visas. 

2. The appellants, who are husband and wife, are citizens of the People’s Republic of China.  They arrived in Australia on 13 November 2002 having left China on passports issued in their own names.  On 21 November 2002 the appellants lodged applications for Protection (Class XA) Visas with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).  The second appellant, the first appellant’s wife, claimed as a family member. 

3. On 27 March 2003 a delegate of the Minister refused the appellants’ application for protection visas on the basis that the appellants were not persons to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954) (“the Convention”).

4. On 13 April 2003 the appellants lodged an application for review of the delegate’s decision by the Tribunal.  On 5 March 2004 the Tribunal affirmed the decision of the delegate not to grant Protection (Class XA) Visas to the appellants.  On 28 April 2006 the decision of the Tribunal was remitted by the Tribunal by consent by the Federal Magistrates Court for determination according to law. 

5. On 15 August 2006 the Tribunal, differently constituted, affirmed the decision of the delegate not to grant Protection (Class XA) Visas to the appellants. 

6. On 29 September 2006 the appellants filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.

7. The grounds for review relied upon by the appellants in the Federal Magistrates Court were 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 the 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 of 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.”

8. In their application to the Department, the appellants claimed that they had been persecuted in China in relation to their business of trading in Chinese traditional and herbal medicines.  They also claimed to have been persecuted because of their association with Falun Gong practitioners. 

9. When the applicants appeared before the first tribunal in March 2004 they claimed a fear of persecution in China on the basis that they were seen to have assisted members of Falun Gong.  In oral evidence before the first tribunal the appellants said they were not Falun gong followers.  At that time their claim, in general terms, was that they became involved in a commercial scam and in relation to medicines with other persons who were able to portray them as Falun Gong practitioners.  However, before the differently constituted tribunal in 2006 the appellants claimed to have joined the Falun Gong movement themselves in Australia and they claimed fear of persecution in China by reason of their involvement with Falun Gong. 

10. The reconstituted tribunal held a hearing on 6 July 2006 at which the appellants were present.  The appellants called three witnesses at that hearing who stated that they first met the appellants in March 2006 when the appellants started to join the Falun Gong gatherings in Sydney.  The appellant husband told the Tribunal at this hearing that the appellants became interested in Falun Gong in 2003 and that they only started doing Falun Gong exercises in March 2006. 

11. The Tribunal adjourned the hearing on 6 July 2006 and then reconvened the hearing, handing to the appellants a letter in accordance with s 424A of the Migration Act 1958 (Cth) (“the Act”) in which it set out information that would, subject to any comments the appellants might make, be the reason or part of the reason for deciding that the appellants were not entitled to Protection (Class XA) Visas.

12. The Tribunal gave the appellants until 20 July 2006 to comment on the context of the 6 July 2006 letter.  Prior to the Tribunal hearing on 6 July 2006 the Tribunal had notified the appellants’ migration agent by letter dated 18 May 2006 that the appellants’ application had been remitted to the Tribunal differently constituted for reconsideration and that the appellants were invited to provide the Tribunal with any documents or written arguments they wished the Tribunal to consider which they had not already provided to the Tribunal. 

13. The appellants provided the Tribunal with a written statement dated 13 June 2006 in which they said that by the end of 2003 they started to read Falun Gong literature.  They said that in March 2006 they started Falun Gong exercises and that they were Falun Gong practitioners.  They also provided the Tribunal with statutory declarations from Falun Gong practitioners in New South Wales which stated that the appellants participated in Falun Gong activities and had done so since March 2006.  They also provided the Tribunal with a letter from Mr John Deller, the President of the Falun Dafa Association of New South Wales which stated that the appellants had participated in Falun Dafa activities since March 2006. 

14. In the letter dated 6 July 2006 the Tribunal set out the following items of information:

    “The fifth item of information is the claim you made in your 13 June 2006 submission about yourselves having started to become involved in Falun Gong ‘by the end of year 2003’.

    The sixth body of information comprises all of what you told the previously‑constituted Tribunal, both orally and in writing.  Nowhere in your RRT hearing of 19 November 2003, or in your written submission of 22 December 2003, or at any time leading up to the completion of the previously‑constituted Tribunal’s decision, some seven weeks later, did you alert that Tribunal to your claimed involvement in Falun Gong.  You were assisted at the time by a registered migration agent and still your claimed involvement with Falun Gong was not brought to the Tribunal’s attention.

    The seventh body of information is evidence provided by you and your wife at today’s RRT hearing about having become involved with Falun Gong in July 2003 and about not having started to do exercises until March 2006.

    The Tribunal’s letter continued:

    “These three bodies of information are relevant because they do not appear to provide a consistent picture of the history of your association with Falun Gong.  The Tribunal might infer from the evidence both of you have provided that you both approached the Falun Gong community for opportunistic reasons. 

    On the evidence before it, the Tribunal might find that your involvement with Falun Gong movement did not commence before March 2006.  The three statements submitted by you on 6 June 2006 suggest that you became known to other Falun Gong practitioners in Sydney no earlier than in March 2006, and because the earliest dates you provide for the photographs you submitted to the Tribunal are May and June 2006.  One of the statements explicitly states that you did not participate with the Riverwood Falun Dafa group until March 2006.

    Also, none of your witnesses at today’s hearing knew of you or your involvement prior to meeting you in March 2006.  One witness’s evidence about what happened to you in the PRC was based entirely on what you told her.

    The Tribunal heard evidence from a witness today about both of you calling unknown persons in the PRC to speak in favour of Falun Gong.

    The Tribunal considers it appropriate to question how long you really have been associated with Falun Gong and, in the circumstances of your various applications for review of decisions against you, the Tribunal considers it appropriate to question your motivation.

    Section 91R(3) of the Migration Act states:

    For the purposes of the application of this Act and the regulations to a particular person:

    (a)In determining whether the person ahs a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the … Convention …

    disregard any conduct engaged in by the person in Australia unless:

    (b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the … Convention …

    In the circumstances, the Tribunal considers itself obliged under the Act to consider whether your action in associating with the Falun Gong movement after lodging your application for review of the delegate’s decision might have been conduct engaged in for the purpose of strengthening your claims to be refugees.”

15. The appellants responded by letter dated 19 July 2006.  In that letter the appellants acknowledged that they started to become involved in Falun Gong by the end of 2003 and said that it was “untrue and unfair” to suggest that they never disclosed their involvement with Falun Gong to the previously constituted Tribunal.  It is important to note that the appellant husband did not respond to the issue the Tribunal was raising, namely at the time of the previous tribunal hearing in November 2003, he gave evidence contrary to the position now held by the appellants that they had become a convert to Falun Gong after July 2003. 

16. The appellants also said in the letter that they did not become Falun Gong members until March 2006 because they knew that there were many watching eyes from China following the movement of Falun Gong outside China. 

17. The Tribunal did not accept that the appellants were ever implicated in assisting Falun Gong practitioners in China and made the following finding in relation to the appellants’ evidence in relation to their joining Falun Gong in Australia:

    “The Applicants’ evidence as to when and why and in what stages they embraced Falun Gong in Australia is dismissed by the Tribunal as unimpressive and inconsistent evidence. They repeatedly evaded questions as to how they overcome fears for the safety of their children, having themselves made their children such a significant factor in resisting public affiliation with Falun Gong for so long. The Tribunal is of the view that the Applicants have ingratiated themselves amongst genuine Falun Gong practitioners for the purpose of strengthening their claims to protection as refugees. The Tribunal disregards this whole aspect of their case. S91R(3) applies in this case to the Applicants’ very recent and sudden show of interest in Falun Gong.”

18. The Tribunal did not accept that the appellants were credible witnesses and was not satisfied that they faced a real chance of Convention‑related persecution in China. 

19. The Federal Magistrate found that the Tribunal explored the appellants’ claims in detail with the appellants and raised concerns about their evidence and noted their responses. In particular, the detailed response by the appellants in the letter of 19 July 2006 in response to the Tribunal’s s 424A letter of 6 July 2006 was taken into account by the Tribunal and referred to in detail in its decision.

20. The Federal Magistrate considered the first ground of review relied upon by the appellants, namely that the Tribunal rejected their claims on no reasonable ground, and noted that that first ground of review appeared to allege that the Tribunal was unable to make that finding with confidence and was therefore obliged to consider the possibility of persecution as alleged in accordance with Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. The Federal Magistrate concluded that on a fair reading of the Tribunal’s decision it did not have any doubts about its findings.

21. The Federal Magistrate noted that the Tribunal had found that the appellants’ claims about assistance to Falun Gong members and subsequent detention in China were “baseless and fabricated”, so that it could not be said that the Tribunal was uncertain as to whether the alleged events occurred.  It followed, said the Federal Magistrate, that the first ground of review was not made out. 

22. In relation to the second ground of review the Federal Magistrate found that the Tribunal did have regard to the evidence of the appellants’ supporting witnesses in relation to their Falun Gong practice in Australia and reasoned as follows:

    “38.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.

    39.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.”

23. In this Court the appellants relied on one ground of appeal in the following terms:

    “The applicant contested before the Federal Magistrates Court that the Tribunal ignored the applicants’ Falun Gong practice in Australia and evidence that they had provided showing their Falun Gong practice in Australia, which include 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.  The Federal Magistrates Court failed to deal with this claims [sic] properly.” 

24. At the hearing of the appeal the appellants through the second appellant, made the submissions that the Federal Magistrate did not believe that if they returned to China they would be persecuted, and the Tribunal did not believe their claims.  That does not disclose an appropriate ground of appeal for submission to this Court.  This Court does not revisit the merits of the Tribunal’s decision.  It can only allow the appeal if satisfied that a jurisdictional error occurred, in the reasoning of the Federal Magistrates Court, having regard to the decision of the Tribunal.  The credit and credibility of the claims of the applicants are pre‑eminently a matter for the Tribunal and the fact that the Federal Magistrate and the Tribunal did not believe the appellant’s claims discloses no jurisdictional error.  The appellants also submitted during this hearing of this appeal that they believed that a decision of the Federal Magistrate and the Tribunal was unfair, but that discloses no ground of appeal or any basis for determining that there may have been a jurisdictional error.

25. In any event, I am satisfied that the Tribunal and the Federal Magistrate considered carefully the claims made by the appellants and responded to those claims and determined them according to proper legal principles.  The appellants also submitted that the Tribunal did not have before it any evidence that they would not be persecuted if they returned to China.  Such a submission misunderstands the way the Tribunal had to go about its task.  The Tribunal had to be satisfied on the material before it that the appellants had a well‑founded fear of persecution for a Convention reason if they returned to China.  The Tribunal was not so satisfied and it indicated why it was not so satisfied having regard to the material before it. 

26. In approaching the matter as it did, the Tribunal committed no jurisdictional error. I should point out that the ground of appeal relied upon by the appellants raises in substance the issue whether the Federal Magistrate erred in law in deciding that s 91R(3) of the Act obliged the Tribunal to disregard any conduct engaged in by the appellants in Australia. I am satisfied that the Federal Magistrate made no such error and that, consistently with the provisions of s 91R(3) of the Act, the Tribunal was obliged to disregard the conduct of the appellants in relation to their Falun Gong activities in Australia unless the appellants could satisfy the Tribunal that they had engaged in the conduct otherwise than for the purpose of strengthening their claim to be refugees.

27. The effect of s 91R(3) was to place the onus of proof on the appellants to establish that their activities in Australia were engaged in for reasons other than for the purpose of strengthening their claims for refugee status. See the decision of the Full Federal Court in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419. The appellants were unable to satisfy the Tribunal that they had engaged in Falun Gong activities in Australia otherwise than for the purpose of strengthening their claim to refugee status and this is demonstrated by the finding of the Tribunal to which I have earlier referred.

28. Indeed, the Tribunal was of the view that the appellants had ingratiated themselves among genuine Falun Gong practitioners for the purpose of strengthening their claim to protection as refugees. Having regard to such findings the Tribunal was bound to disregard evidence of their conduct in Australia pursuant to s 91R(3) of the Act. It follows that the Federal Magistrate made no error and no jurisdictional error in the manner in which he considered the effect and consequences of the appellants’ Falun Gong activities in Australia.

29. The appeal should be dismissed and the appellants pay the first respondent’s costs of the appeal.

I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:        19 May 2008

Counsel for the First Appellant:	No appearance
Counsel for the Second Appellant	The Second Appellant appeared in person
Counsel for the First Respondent:	Rachel Francois
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	7 May 2008
Date of Judgment:	7 May 2008