NBLV v Minister for Immigration
[2007] FMCA 101
•8 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBLV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 101 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal complied with s.424A(1) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal considered fully the evidence – whether Refugee Review Tribunal provided natural justice to the applicant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R(3); 91S; 422B; 424A; 424A(1); 424A(3)(a); 474; pt.7 div.4; pt.8 div.2 |
| VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 VWFY v Minister for Immigration and Multicultural Affairs [2005] FCA 1723 |
| First Applicant: | NBLV |
| Second Applicant: | NBLW |
| Third Applicant: | NBLX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2681 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 January 2007 |
| Date of last submission: | 29 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms S Burnett, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2681 of 2005
| NBLV |
First Applicant
| NBLW |
Second Applicant
| NBLX |
Third 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 (“the Tribunal”) dated 1 December 2003 and handed down on 22 December 2003.
The first named applicant was born on 7 September 1956 and claims to be from the People’s Republic of China (“the PRC”) and Falun Gong faith (“the Applicant”). The second named applicant is the Applicant’s wife and the third named applicant is the son of the first and second named applicants. The applications of the second and third applicants depend on the Applicant’s application.
The Applicant arrived in Australia on 27 July 1996, having legally departed from Shanghai on a passport issued in his own name and a business visa issued on 8 November 2000.
On 10 February 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese government because he is a Falun Gong practitioner whose brother is in detention in the PRC for being a Falun Gong practitioner. The Applicant stated that he commenced Falun Gong in Australia for health reasons. The Applicant claimed that, while he was in Australia, his sister called him a number of times, persuading him not to return to the PRC because the police had visited her home searching for Falun Gong material.
On 18 February 2003, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 26 February 2003, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant maintained the claims made in his protection visa application. On 1 December 2003, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 July 2005, the Applicant filed an application in the Federal Court of Australia seeking judicial review of the Tribunal’s decision. On
26 July 2005, Moore J made an order transferring the matter to this Court.
The Tribunal proceeding
The Tribunal confirmed that it had before it the Department’s file and that the Applicant gave oral evidence before it.
The Applicant arrived in Australia in June 1996 and the second and third named applicants joined him in July 1998. The Tribunal noted that the applicants travelled to the PRC in January 2000. The Applicant returned to Australia in February 2000 and the second and third named applicants returned in October 2000.
The Tribunal noted that the Applicant claimed that he became a Falun Gong practitioner in Australia in 2000 to improve his health. The Applicant stated that his brother had participated in Falun Gong protests in Tiananmen Square in Beijing at an unspecified time and was detained and sentenced to one year of labour education. The Tribunal noted that the Applicant stated his brother was still in detention in February 2003, when the Applicant lodged his protection visa application.
The Tribunal had regard to a copy of a travel agent printout provided to the Tribunal by the Applicant showing that the Applicant had intended to return to the PRC in January 2003. The Tribunal noted that the Applicant stated that his sister in the PRC had called him several times urging him not to return because the police had visited her home in search of Falun Gong materials and had asked her to warn the Applicant about his future Falun Gong behaviour. The Tribunal noted that the applicant stated that he could not give up Falun Gong practice because it is now an integral part of his life and that he feared he would be in danger if he returned to the PRC.
The Tribunal noted that, prior to the hearing, the Applicant’s advisor provided various material to the Tribunal in support of the Applicant’s claim. The Tribunal noted that the Applicant did not have material to corroborate his claims of regular attendance at Falun Gong exercise groups in Darling Harbour and Campsie from 2000, nor did he have documents to support his claims of the health problems that he stated prompted him to investigate Falun Gong.
In support of the sister’s account of the brother’s arrest, the Applicant provided an original document, alleged to be a certificate from the Shanghai reformatory dated 26 March 2003, confirming the brother’s imprisonment. The Tribunal expressed surprise to the Applicant about the pristine condition of the certificate and the fact that the original had been obtained by the Applicant’s adviser, rather than the Applicant’s relatives in the PRC. The Tribunal noted that the Applicant did not explain why the document was not creased or folded, despite allegedly having been sent from the PRC or why it was unmarked, despite having been handled.
The Tribunal noted that all the documents provided by the Applicant in support of his application post-dated the Applicant’s protection visa application, except for a pro forma letter used for Falun Gong correspondence with the PRC.
The Tribunal noted that many of the documents were “vague or not specific to the Applicant and that the photographs of the Applicant’s participation in Falun Gong activities did not prove the Applicant’s adherence to Falun Gong.”
The Tribunal noted that the photograph provided by the Applicant showed the male Applicant in a female stance, rather than a male stance, and that the Applicant was unable to explain the anomaly satisfactorily.
The Tribunal noted that the Applicant stated at the hearing that he believed his brother and sister were blacklisted by authorities and that his own activities in Sydney, in drawing attention to his brother’s detention, put him at risk of persecution upon return. The Tribunal noted that it informed the Applicant that independent country information before it revealed that PRC authorities are not known to mistreat returnees unless they have failed to comply with Chinese law.
The Tribunal noted that it put to the Applicant that the coincidental timing of the warnings from his sister, received by her from PRC authorities, could suggest that his account was not correct and that its purpose was to prevent or delay his family’s return to the PRC.
The Tribunal observed that there was little corroborating evidence to substantiate his brother’s claimed detention and the Applicant’s claims regarding Falun Gong adherence and activities prior to lodgement of his protection visa application.
The Tribunal gave the Applicant an opportunity to provide further material to corroborate his claims after the hearing. The Tribunal noted that, post hearing, it received only a one page statement from the person named by the Applicant as his original Falun Gong contact in early 2000.
The Tribunal found that the Applicant’s motivation to commence Falun Gong practise for illness was not substantiated, although the Applicant claimed to have consulted western and Chinese doctors. The Tribunal noted that the Applicant was unable to provide details about any consultations.
The Tribunal did not accept as genuine the translation of a letter claimed by the Applicant to have been sent to his brother in prison in which he referred to his brother having introduced him to Falun Gong.
Ultimately, the Tribunal was not satisfied that the Applicant was a Falun Gong practitioner prior to the lodgement of his protection visa application and that the Applicant did not come to the attention of the PRC authorities as a result of any correspondence with Falun Gong related material up to early 2003.
The Tribunal found that the Applicant “is not a genuine and sincere Falun Gong practitioner.” In reaching that conclusion, the Tribunal noted that the Applicant was planning to return to the PRC in early 2003 and that the Applicant had been surprised to learn about his brother’s detention.
In relation to the Applicant’s conduct since 2003, the Tribunal, while expressing some scepticism, gave the Applicant the benefit of the doubt and accepted that his brother is a Falun Gong adherent and has been detained. The Tribunal also accepted that the Applicant had published an article and sent letters to international organisations to draw attention to and secure the release of his brother.
However, the Tribunal found that the Applicant’s involvement in, and documentation of, Falun Gong related activities since March 2003 were not for any purpose other than strengthening his claim to be a refugee.
Accordingly, as required by s.91R(3) of the Act, the Tribunal disregarded the Applicant’s conduct in Australia in determining whether the Applicant has a well founded fear of persecution.
In relation to the Applicant’s claim about future activities if he were to return to the PRC, the Tribunal found that the Applicant had no commitment to Falun Gong and therefore did not have a well founded fear of persecution for that reason. The Tribunal was not satisfied that the Applicant received a threat from the PRC authorities via his sister. The Tribunal found that, as a non-practitioner, the chance of persecution on return to the PRC is remote, having regard to independent information before it.
The Tribunal found that the Applicant would not act in a manner that would put him or his family at risk, were he to return to the PRC, and was not satisfied that the Applicant would be imputed with Falun Gong sympathies as a result of his concern about his brother.
The Tribunal concluded that, having considered the Applicant’s claims both individually and accumulatively, it was not satisfied that the Applicant is a Falun Gong adherent, nor that he had ever been subject to direct or indirect threats from the PRC authorities or has a well founded fear of persecution within the meaning of the Convention, if he were to return to the PRC.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicants were unrepresented before this Court although had the assistance of an interpreter. The Applicant confirmed that he appeared on behalf of all the applicants.
Applicant’s tender of documents
The Applicant tendered a document entitled “Refugee Review Tribunal Hearing Transcript”, being an unverified transcript of the Tribunal hearing. The Applicant confirmed that he wished to tender the document to show that the Tribunal had not discussed independent country information with him about people returning to the PRC being sought by the PRC authorities. The first respondent did not object to the tender of the document and, accordingly, it was admitted into evidence and marked Exhibit 1A.
However, it is clear from the document, in the following exchange, that the Tribunal member did raise with the Applicant the independent information before it:
“Member: I have obligation to let you know that the information that we have received, that people returning to China including Falungong practitioners are not sought by the authorities unless they have already had criminal record.
Interpreter: (Mandarin)
Member: We also have the information that the Chinese authorities are not interested in activities outside of China, they are interested in activities in China.”
In any event, there is no obligation on the Tribunal to raise with the Applicant such information.
The Applicant did not identify any part of the transcript upon which he relied in support of any submission he sought to make
The Applicant also sought to tender two other documents, being further independent country information. One of the documents post dated the hearing and the other was a document which the Applicant confirmed he had not provided to the Tribunal at the hearing. For those reasons, the tender of those documents by the Applicant was objected to by the First Respondent and rejected by the Court.
However, it is apparent from the Tribunal’s decision and from Exhibit 1A that the Tribunal discussed with the Applicant the fact that the independent country information before it disclosed that returnees to the PRC were generally not mistreated upon return unless they otherwise engaged in illegal conduct upon return or had been deported to the PRC more than once. To that extent, the Applicant’s complaint to this Court that it did not do so is not made out.
Amended application
The Applicant confirmed that he relied upon the amended application filed on 16 December 2005. The amended application is in following terms:
“1. The respondents denied the applicant natural justice by not considering the context in which the applicant will face persecution and serious harm for being a Falun Gong practitioner in China.
2. The respondents have not considered the evidence that is in favour of the applicant. They have only considered the evidence that is not in favour of the applicant.
3. Particulars and Grounds:
a. The Tribunal cited considerable background material relating to the Falun Gong in the PRC, including following Country Information to consider my claims:
· The U.S. Department of State’s Country Report on Human Rights Practices (China), released by the Bureau of Democracy, Human Rights and Labor on 31 March 2003
· The Amnesty International report 2003 chapter on China
· Treatment on Return
b. The Tribunal did not comply with its obligations under s424A of Migration Act 1958 (“The Act”) in respect of the above-mentioned information;
c. As a matter of fact, the Tribunal has apparently failed to give me the important information, completely and clearly, before or during or after the hearing, which have been used as the reason or part of the reason, for affirming the decision that is under review;
d. The Tribunal has, particularly, failed to ensure me, during the hearing, to well understand why the information, normally called as “Independent Country Information” (ICI), is relevant to the review;
e. It is because of the reason mentioned above that it is impossible for me to have a fair chance to comment on the ICI before or during the hearing;
f. I believe that the Tribunal should provide me a complete ICI or the particular information which would be the reason or a part reason, for affirming the decision that is under review, by one of the methods specified in s441A of the Act before the hearing, so that I could make any comments on the information before hearing in writing or during the hearing verbally;
g. In addition, the Tribunal has obviously ignored the fact that it is almost impossible for the interpreter, at the hearing, to accurately and clearly translate relevant ICI or the information used by the Tribunal to assess my review application with special Falun Gong terms; and thus, it is definitely impossible for me to make a complete comment on such information without a full and good understanding;
h. Tribunal did not fully consider the information I provided. The information should be regarded as the strong evidence in support of my claims.
4. In summary, I never ever believe that the Tribunal has complied with its obligations particularly under s424A and 441A of the Act.
5. There are procedural errors in the Tribunal’s decision constituting an absence of natural justice.”
Allegation of denial of natural justice
Grounds 1 and 5 contend that the Applicant was denied natural justice by reason of the Tribunal not considering the context in which the Applicant would face persecution and serious harm for being a Falun Gong practitioner in the PRC. No particulars are provided of that allegation.
Section 422B of the Act was in force at the time of the Tribunal’s decision. Section 422B of the Act purports to be an exhaustive statement of the requirements of natural justice in respect of the requirements of pt.7 div.4 of the Act.
Certainly, the Tribunal complied with its statutory obligations in pt.7 div.4 of the Act with respect to the conduct of its review.
The Tribunal’s decision and a perusal of Exhibit 1A makes it clear that the Tribunal understood the claims made by the Applicant and explored those claims with the Applicant at the hearing.
Exhibit 1A also makes it clear that the Tribunal explored with the Applicant concerns it had arising out of claims made by the Applicant and, in particular, to documents provided by the Applicant about which the Tribunal had reservations.
The findings and conclusions made by the Tribunal were open to the Tribunal on the material and evidence before it and for which it provided reasons. The Tribunal otherwise complied with the statutory regime required for the conduct of its review.
Accordingly, ground 1 is not made out.
Allegation that Tribunal did not fully consider the evidence
Ground 2 of the amended application alleged that the Tribunal did not fully consider the evidence in favour of the applicants and did not fully consider the information provided.
As states above in these Reasons, it is clear from a fair reading of the Tribunal’s decision and Exhibit 1A that it understood the Applicant’s claims.
In particular, the Tribunal understood its obligations under s.91R(3) of the Act that it must disregard conduct of the Applicant whilst in Australia, unless it was satisfied that the conduct was for reasons other than strengthening the Applicant’s claims to be a refugee.
The Tribunal made specific findings about the Applicant’s conduct in Australia and concluded that the Applicant’s involvement in, and documentation of, Falun Gong related activities since March 2003 were not for any purpose other than strengthening his claim to be a refugee. Having made that finding, the Tribunal disregarded such conduct for the purpose of determining if the Applicant had a well founded fear of persecution. That finding and conclusion was open to the Tribunal on the evidence and material before it and for which it gave reasons.
The Tribunal also found that the Applicant had not engaged in Falun Gong activity prior to 2003 and again it gave reasons for that conclusion.
In relation to the Applicant’s future activities, if he were to return to the PRC, the Tribunal found that, because the Applicant had no commitment to Falun Gong, he therefore did not have a well founded fear of persecution on that basis. Further, the Tribunal was not satisfied that the Applicant had received a threat from the PRC authorities via his sister. Again, those findings and conclusions were open to the Tribunal on the material before it and for which it gave reasons.
Accordingly, Ground 2 is not made out.
Allegation of breach of s.424A of the Act
Ground 3 is made up of a series of sub paragraphs, (a) to (h). To the extent that the subparagraphs allege a breach of s.424A of the Act, the same complaint is made in Ground 4.
Sub-paragraph 3(h) is dealt with in consideration of Ground 2 in these Reasons above.
Sub-paragraphs 3(a) to 3(g) essentially complain that the Tribunal had regard to independent country information that it should have provided to the Applicant and that the Tribunal’s failure to do so was in breach of its obligations under s.424A of the Act.
This contention cannot be made out as s.424A(3)(a) of the Act specifically excludes independent country information from the requirements of s.424A(1) of the Act (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]–[16])). Moreover, the Tribunal was not under any duty to provide or allow for the translation of independent country information to which it had regard in a form that would enable the Applicant to comment upon such information.
Allegation of lack of interpretation
In subparagraph 3(g) the Applicant complained that it was impossible for the interpreter at the hearing to accurately and clearly translate relevant independent country information and therefore the Applicant could not make a complete comment on such information without a “full and good understanding” However, the Applicant provided no further evidence of any lack of interpreting skills by the interpreter at the hearing.
No complaint was made by the Applicant at the time of hearing about the quality of the interpretation and no complaint was received by the Tribunal from the Applicant post hearing. Nor, did the Applicant assert that any such complaint was made by him.
In order to amount to jurisdictional error, the interpretation must be of such poor quality that an applicant is effectively deprived of his right to appear (VWFY v Minister for Immigration and Multicultural Affairs [2005] FCA 1723 at [27]).
The Applicant was invited to identify any other parts of Exhibit 1A upon which he sought to rely in support of his application. None were identified by the Applicant. Exhibit 1A makes it clear that no such allegation could be substantiated.
Accordingly, neither Grounds 3 nor Ground 4 is made out.
Conclusion
The Tribunal’s decision is unaffected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this court has no jurisdiction to interfere.
The Applicant’s proceeding before this court is dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 7 February 2007
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