NBLF v Minister for Immigration
[2007] FMCA 409
•27 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBLF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 409 |
| MIGRATION – Refugee – Tribunal relied on independent country information that fell within exception in s.424A(3)(a) – no obligation on Tribunal to conduct inquiries – merits review sought – no denial of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.422B, 424A, 424A(3)(a) |
| Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 |
| Applicant: | NBLF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2768 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 March 2007 |
| Date of Last Submission: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr. D. Jordan |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2768 of 2006
| NBLF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 26 September 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 31 August 2006 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 29 July 2004. On 4 August 2004 the applicant applied for a protection visa and on 9 November 2004 a delegate of the respondent Minister refused to grant the visa. The applicant applied to the Tribunal for review of that decision on 10 December 2004, and on 18 February 2005 the Tribunal affirmed the delegate’s decision. The applicant sought judicial review of the Tribunal’s decision. On 3 April 2006, by consent, the Federal Magistrates Court issued orders quashing the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.
On 26 May 2006 the Tribunal invited the applicant to a hearing (see Court Book (“CB”) 285 to CB 286), which he attended on 6 July 2006 with his migration adviser. The Tribunal’s account of what occurred at the hearing is in its decision record at CB 306.9 to CB 311.2. Following the hearing the applicant’s migration adviser wrote to the Tribunal by letter of 20 July 2006 providing further documentation in support of his claims (reproduced at CB 288 to CB 290). On 7 August 2006 the Tribunal wrote to the applicant by letter sent to his adviser, who was also the authorised recipient for correspondence, inviting comment on information pursuant to its obligations arising from s.424A of the Migration Act 1958 (“the Act”) (see CB 291 to CB 292). On 21 August 2006 the applicant responded (CB 297 to CB 299).
Claims to protection
The applicant claimed to fear persecution in China because of his practice and involvement with Falun Gong. He claimed that as a result of his adherence to Falun Gong he had been detained, beaten, sent for re-education and placed under surveillance by the Chinese authorities.
The applicant’s claims to protection are reproduced in his application for a protection visa CB 1 to CB 24, in his application for review (reproduced at CB 39 to CB 42), and in a supporting statement attached to this application at CB 43. The applicant’s claims are also outlined in detail in the Tribunal’s decision record under the heading of “Summary of written claims” (at CB 305.4 to CB 314.9).
Tribunal’s findings
The Tribunal’s “Findings and Reasons” are reproduced at CB 316.4 to CB 320.8. The Tribunal was not satisfied as to “the truth” of the applicant’s claims concerning his involvement with Falun Gong in China, or the harm “he said” he had suffered as a consequence of such an involvement (CB 316.8). The Tribunal found:
1)There were significant inconsistencies between the claims advanced by him in support of his protection visa application, and the claims he advanced to the Tribunal at the “second” hearing (CB 316.9 to CB 317.8).
2)It was not satisfied that such inconsistencies could be attributed to deficiencies in the service provided by the applicant’s advisor (former migration agent), as he claimed (CB 318.2 and CB 317.8). The Tribunal was of the view that the matters omitted from the protection visa application and “earlier” review application (see CB 317.5) were not “marginal or incidental to his claimed reasons for leaving China” (CB 317.2).
3)It was not satisfied as to the plausibility (“the truth”) of the applicant’s claim that following his release from detention in 2000, he was visited by the Public Security Bureau (“PSB”) on a number of occasions (CB 318.4).
4)That the fact that the applicant did not seek protection during his first visit to Australia between 15 July 2004 and 21 July 2004, before he re-entered Australia on 29 July 2004, raised doubts as to the genuineness of his claimed fear of persecution in China (CB 319.1).
5)It accepted that the applicant’s inability to obtain supporting information from the Falun Dafa Association of NSW was “not in itself significant” (CB 320.2). But, it was not satisfied that the applicant had “provided any other convincing evidence to support his claim that he practices Falun Dafa in Australia” (CB 320.3).
6)On the basis of the applicant’s evidence provided at the “second” hearing before the Tribunal, that it was not satisfied the applicant had involvement with the Falun Gong faith as a practitioner in China since 1995, or in Australia (CB 319.9 to CB 320.2).
The Tribunal concluded, based on the information provided by the applicant, and the independent country information available to it, that it was not satisfied that the applicant had ever suffered any harm for reasons of his Falun Gong faith in China in the past, nor that there was a real chance that he would suffer harm for this reason in the future. In all, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for any Convention related reason should he return to China.
Material Before the Court
Before me I have, for the applicant:
1)Application filed on 26 September 2006.
2)An affidavit made by the applicant on 26 September 2006, annexing the Tribunal’s decision record.
3)An amended application filed on 21 February 2007.
4)A further affidavit made by the applicant on 20 February 2007, annexing a transcript of hearing before the Tribunal.
5)An outline of submissions filed on 6 March 2007.
For the respondent:
6)A response filed on 16 October 2006.
7)Written submission filed on 14 March 2007.
Hearing
At the hearing before me the applicant appeared unrepresented. He was assisted by an interpreter in the Mandarin language. Mr. D. Jordan appeared for the respondent. At the outset the Court was adjourned to allow Mr. Jordan to view the applicant’s submissions that had not been served on the Minister. Subsequently Mr. Jordan agreed to proceed.
On resumption, the applicant sought to file in Court a document which appeared to be an extract from a decision record drafted by (he said) another Tribunal presiding member, but certainly in relation to another application to the Tribunal not involving the applicant. Mr. Jordan raised objection to the Court taking into account this document on the basis of relevance. In relation to the applicant’s affidavit annexing a transcript of the hearing, the respondent also objected on the basis of relevance.
I understood from the applicant that he wanted to rely on this document to show that there was independent country information available to the Tribunal which was “positive” to his case, but the Tribunal only used independent country information which was adverse to his case and that this was not “fair”.
Mr. Jordan objected to the Court considering this document, on the basis of relevance. I noted the objection but proceeded on the basis of allowing the applicant (who was unrepresented) to put forward his complaints.
No “substantial” objection was made to the affidavit annexing the transcript of the Tribunal hearing. Mr. Jordan made a “formal” objection on the basis of relevance given that the applicant’s stated grounds in his application (and written submissions) did not appear to rely on the transcript, other than possibly through the general reference to “natural justice”. Again I proceeded on the basis of allowing the applicant to make his complaints before the Court and dealing with the transcript only if the applicant sought to rely on it in relation to a specific complaint and that relevance could be discerned.
The applicant stated that:
1)The Tribunal failed to observe s.424A of the Act “in regard to the independent country information”.
2)The Tribunal “should notify me about the independent country information they were intending to use. But my English is very poor. So faced with this quantity of information, I had no time to thoroughly understand and to give comprehensive comment on that”.
3)In order “to test the credibility of my claims” the Tribunal “used only considered evidence which is unfavourable to me but failed to consider evidence which is favourable to me”.
4)By using the “independent country information to judge whether my claims are true or not” the Tribunal “should have the obligation to let me thoroughly and profoundly understand those country information either before the hearing or during the hearing”.
5)He has “never had an opportunity to truly understand and comprehend the independent country information used by RRT against my case”.
6)“I have a feeling that right from the beginning in dealing with my case RRT has not believed me”.
Taking his amended application, written submissions and what he said to the Court, the applicant’s complaints are:
1)A breach of s.424A in relation to the use of independent country information.
2)That the Tribunal was selective in its use of independent country information.
3)That the Tribunal did not fully consider his claims.
4)A denial of natural justice.
Section 424A
The applicant complains that the Tribunal failed to observe s.424A of the Act regarding its use of the independent country information on which it relied to find against him. I explained to the applicant, at the hearing, the obligations of the Tribunal to put such information to him. Section 424A(1) of the Act provides that the Tribunal must put to an applicant, in writing, any information that it relies on in the making its decision.
I can only agree with Mr. Jordan that the answer to the applicant’s complaint is that, on what is before the Court now, the independent country information referred to by the Tribunal (CB 314.9 to CB 316.4), and to the extent that it relied on this information such that it could be said to be a part of the reasons for its decision, was all information that fell within the exceptions in s.424A(3)(a) of the Act from the need to put such information to the applicant pursuant to s.424A(1) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). Clearly, that information is not specifically about the applicant, or another person, and is just about a class of persons of which the applicant is a member.
But even if s.424(3)(a) did not apply I note that the Tribunal wrote to the applicant by letter dated 7 August 2006 after the hearing (see CB 291 to CB 292). It provided him with an opportunity to comment on what it saw as matters that were potentially adverse to his case. Amongst other things, what the letter reveals, is that the Tribunal drew the applicant’s attention to (not only at the hearing, but by this letter), and sought comment on, the independent country information that it was potentially going to rely on (see in particular CB 292.1). Further, the applicant’s response by letter dated 21 August 2006, through his agent, to the Tribunal, was taken into account by the Tribunal. It recorded the applicant’s (adviser) comment at CB 297:
“The information before the Tribunal is about the country in general. It is only correct when use it as a general guide only.”
The applicant also complains that this information should have been put to him before the hearing so that he could properly consider it, and thereby have an opportunity to put contrary material and argument at the hearing. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) the High Court, by majority held that s.424A applies to information attained, or given to it, throughout the review process. A failure by the Tribunal to comply with s.424A(1) and (2) (unless the information comes within s.424A(3)(a) or (b)) will, on the view of the majority, be jurisdictional error. There is nothing however requiring the Tribunal to put to an applicant such information before the hearing. The obligation is discharged if it complies with s.424A(1) at anytime prior to the completion of the review. I note Mr. Jordan’s comment that the construction of Division 4, Part 7 (within which s.424A is found) put forward by the applicant now, was that, ironically put forward by the Minister (unsuccessfully) in SAAP.
The applicant also complained at the hearing before the Court that the Tribunal failed to put to him information relating to people who practised Falun Gong at home. This was also referred to in the applicant’s amended application (the last dot point at paragraph 4).
This appears to be a reference to the Tribunal’s decision record (at CB 315.8) where it sets out the independent country information available to it:
“In recent years there has been a dramatic abatement in the visibility of Falun Gong activities within China, with many practitioners performing the exercises at home instead of in public.”
I accept Mr. Jordan’s submission that the exemption in s.424A(3)(a) would apply to this information. I also accept his submission that notwithstanding that the Tribunal set out this specific information under the heading of “Independent country information”, the part of the independent country information did not form a part of its reasons for affirming the delegate’s decision.
In all therefore, I cannot see that the applicant’s reliance on a breach of s.424A can be sustained to reveal jurisdictional error in the Tribunal’s decision.
Selective use of country information
The applicant asserts that the Tribunal was selective in its choice of country information and that there existed other information which would have assisted his case. I accept Mr. Jordan’s response that there is no obligation on the Tribunal to conduct such inquiries in relation to country information (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32). Further, the weight given to country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]-[11]).
However, I also note that in the applicant’s case (as referred to at [6] above) the Tribunal drew a strong adverse conclusion on the applicant’s credibility on matters he had put to the Tribunal, and on matters which had nothing to do with country information. This appears to be in stark contrast with the (unknown) applicant who was the subject of consideration in the extract provided by the applicant who was plainly found to be a credible witness (see page 7 of 8 at about “point” 7). The applicant before me now by contrast was found not to be a Falun Gong practitioner (CB 320).
Consideration of information by the Tribunal
The applicant also complains that the Tribunal did not fully consider his claims. No real particulars have been provided. Nor did the applicant provide anything further at the hearing before the Court, beyond the claim set out above in relation to s.424A.
I agree with Mr. Jordan that the Tribunal’s decision record shows an accurate understanding and consideration of the applicant’s claims. Further, I also agree that the applicant’s complaint seems to reflect his dissatisfaction with the decision of the Tribunal to refer to certain country information rather than other country information (I have dealt with this above). I note that it is clearly not for this Court to perform a review on the merits of the applicant’s claims before the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Further, I also note again that the weight a Tribunal gives to information before it, is a matter for the Tribunal (see NAHI).
Natural justice
The applicant’s amended application also complains of procedural errors constituting an absence of natural justice. In the absence of any particulars it is unclear as to what the applicant is asserting. Although following the hearing, this again appeared to be a complaint relating to the issue of country information. The respondent submitted that neither the Tribunal’s decision, nor the available evidence before the Court, disclose any denial of procedural fairness. I agree. I also note that the application for review was made in 2004, well after the introduction of s.422B to the Act. To the extent therefore that the amended application asserts a failure of procedural fairness at general law, then s.422B operates to make Division 4, Part 7 of the Act the exhaustive statement of the matters which it purports to deal (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61).
In all therefore, I cannot see jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 27 March 2007
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