SZBWZ v Minister for Immigration
[2007] FMCA 936
•26 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBWZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 936 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – Tribunal not required to refer in its decision to evidence it does not rely upon in reaching its decision – allegation of bias on the part of the Tribunal not made out – Tribunal has no duty to inquire – accuracy of country information relied on by the Tribunal is a matter for the Tribunal. |
| Migration Act 1958, ss.65, 91R, 91X, 424A |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 Muin v Refugee Review Tribunal (2002) 190 ALR 601 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NAHI v Minister forImmigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZBWZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3483 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 June 2007 |
| Date of Last Submission: | 5 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. B. K. Nolan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3483 of 2006
| SZBWZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 16 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 17 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 21 June 2002 refusing the applicant’s application for a protection visa.
The decision the subject of these proceedings is the second Tribunal decision in relation to the applicant’s application for a protection visa. The Tribunal’s first decision was quashed by order of the Full Federal Court dated 13 April 2006. (Court Book (“CB”) page 70).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as being:
… from Fujian province. She was a Mandarin speaker. She had completed eight years of education. She wrote “N/A” in relation to her past employment on the application form. She obtained a passport on 28 June 2000. She had no difficulty obtaining it and left China legally. She resided in PNG for over a year before coming to Australia. Her Australian visa was issued in Port Moresby on 20 March 2002. (CB 152).
The applicant claims to fear future persecution in China because of her membership of Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 7-10 of the Tribunal’s decision (CB 152-155). Relevantly, they are in summary:
a)the applicant started to practise Falun Gong in 1998 by following her mother who had started to practise in June 1996;
b)in July 1999 the Chinese government started to crack down on Falun Gong and the applicant’s mother was detained in February 2000. The applicant then wrote to the Chinese government in Beijing requesting her mother’s release and, apparently, expressing support for Falun Gong;
c)on 9 April [2002] the applicant and her husband went to the Chinese Consulate in Sydney to protest against Chinese government persecution of Falun Gong members in China. Photographs were taken at the Consulate and she was asked to leave;
d)the applicant practised Falun Gong every morning and in the evenings when she had time;
e)Falun Gong was good for her health; and
f)upon arrival in Sydney the applicant was accepted as a member of the Falun Gong organisation and she actively joined almost every Falun Gong demonstration against the crackdown by the Chinese government and in support of practitioners in China.
In her evidence to the Tribunal on 4 September 2006 the applicant said:
a)she started practising Falun Gong in 2000, prior to that she did not practise it “formally” but practised it sometimes. She said that she learnt it from her mother in 1995, which was when her mother started practising Falun Gong;
b)of her Falun Gong-related activities in Australia, the applicant said that before she had a baby she used to promote Falun Gong by distributing materials but she stopped doing this when she fell pregnant;
c)the applicant could not remember when she last went to group practice but then said that she went to Darling Harbour in the week of that first Tribunal hearing to listen to a lesson, rather than to practise;
d)the applicant gave evidence of her private practice of Falun Gong; and
e)the applicant’s mother was sometimes detained and sometimes questioned and that whenever her mother was asked to attend she had to go. The applicant had gone with her relatives to the Public Security Bureau (“PSB”) to ask them why her mother was detained.
At the resumed Tribunal hearing on 18 September 2006 the applicant gave evidence which included the following:
a)the applicant confirmed she was pregnant and said that she had not done Falun Gong exercises for approximately two to three months;
b)as to the last occasion, the applicant said it was in the city but she could not be sure where and there were about ten or twenty other people there;
c)she had been there before on Saturdays or Sundays at about 8am or 9am and that sessions normally went for two to three hours;
d)the applicant said that the exercises had taken place around Darling Harbour and also she had been to a park near Central station;
e)the applicant had come to Australia and had a child and sent the child back home but she could not get an education there because of the applicant’s Falun Gong practice;
f)the applicant had cancelled her own registration in China because she feared her family might get into trouble;
g)the applicant claimed that her mother had been detained after she left China; and
h)the applicant was aware that Falun Gong was banned at the time she started doing the exercises. However, when she started practising with her parents in 1995, she was not sure whether her practice was “formal” or not.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant’s evidence was very vague as to when she took up the practice of Falun Gong, stating variously that this occurred in 1995, 1998 and 2000 and also saying that she started to practise “formally” between 1995 and 1999;
b)the applicant’s claims were internally contradictory as to whether she was involved in any underground or political or protest activities in China in the sense that she claimed to the Tribunal that she was involved in trying to get her mother released from detention while the applicant was still in China but later told the Tribunal that her mother was not detained until after the applicant left China;
c)the Tribunal stated that it was not satisfied that the applicant’s mother had ever been detained on suspicion of involvement in Falun Gong practice with the consequence that the Tribunal considered that the applicant had been untruthful about her mother having been detained and about the applicant’s efforts to gain her mother’s release;
d)the applicant had submitted a “wanted poster” purporting to be from the Fuqing City PSB calling for her arrest as of January 2001 but the applicant and her husband had been living mainly either with her parents or his parents prior to their departure from China in February 2001. The Tribunal was satisfied that if that were so, the Fuqing City PSB could and would have located and arrested the applicant and yet they did not do so. Additionally, the applicant’s husband had given evidence that during this period he was living in a village in the countryside or in an apartment next door to that of his parents. On the basis of these differences in the evidence the Tribunal was not satisfied that the applicant had been in hiding or was of adverse interest to the PSB before she left China;
e)the Tribunal was not satisfied that the document purporting to be a “wanted poster” was issued for the purposes stated on it;
f)the inconsistencies between the evidence of the applicant and that of her husband as to when and where the applicant most recently did Falun Gong exercises cast serious doubts on the plausibility of her claim to have been doing such exercises since arriving in Australia;
g)the applicant was very vague in her responses about her past anti-government activities and the Tribunal concluded that she had not been truthful when she claimed to have been a Falun Gong practitioner in China and to have been wanted by the PSB as a result;
h)the Tribunal found that while the applicant may have occasionally participated in Falun Gong-related activity in Australia, it was not satisfied that she did so other than for the purpose of strengthening her claim to be a refugee and in accordance with s.91R(3) of the Act the Tribunal disregarded those activities in Australia when considering whether the applicant had a well-founded fear of persecution; and
i)the Tribunal was not satisfied that any difficulties which the applicant’s young daughter, now resident in China, may be experiencing in obtaining access to state assistance result from a perception by the Chinese authorities that the applicant is a Falun Gong practitioner or an opponent of the government. The Tribunal accepted that it was plausible that the applicant had cancelled her household registration before she left China in the belief that there was some benefit in doing so.
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the Tribunal did not really consider the information supplied by the applicant in response to the Tribunal’s s.424A(1) letter;
b)the Tribunal was biased as a result of which it failed to consider the applicant’s application fairly;
c)the Tribunal failed to provide adequate independent information for the consideration of the application;
d)the Tribunal relied on some wrong information “for” refusing the application; and
e)the decision was not supported by evidence and materials.
Dealing with each of these grounds in turn:
The Tribunal did not really consider the information supplied by the applicant in response to the Tribunal’s s.424A(1) letter
Pursuant to s.424A(1) the Tribunal wrote to the applicant on
18 September 2006 and it reproduced the relevant section of that letter at pages 17 – 18 of its decision (CB 162 – 163). In that letter the Tribunal raised matters concerning:
a)inconsistencies in the applicant’s claims concerning when she last did Falun Gong exercises in public;
b)the date when the applicant started to do Falun Gong exercises in China;
c)inconsistencies in the applicant’s claims concerning when her mother was detained in China because of her Falun Gong related activities;
d)the wanted poster issued by the Fuqing City PSB and the ability of the applicant and her husband to live with his parents and with her parents without being apprehended;
e)the inconsistencies in the applicant’s allegations concerning where her husband was living during the period when the couple was allegedly sought by the Fuqing City PSB; and
f)the applicant’s alleged involvement in protest activities at the Chinese Consulate.
At pages 18 – 19 of its decision (CB 163 – 164) the Tribunal recorded the applicant’s written response to its s.424A(1) letter. In her letter the applicant made submissions about how certain evidence should be treated, purported to clarify some aspects of her evidence and to not remember other details of her alleged experiences in China and she also repeated certain factual allegations.
There is no evidence before the Court to support the allegation made in this asserted ground of review that the Tribunal did not really consider the contents of the applicant’s response to the s.424A(1) letter. The fact that the response may not have been referred to in that section of the Tribunal’s decision headed “Findings and Reasons” does not indicate that it had not been considered. Clearly it had been, as demonstrated by the way the Tribunal paraphrased it at pages 18 – 19 of its decision. If the Tribunal did not rely on the response to ground its reasons then there was no necessity for the Tribunal to refer to it any further: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46]:
It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
Consequently, this asserted ground of review is not made out.
The Tribunal was biased as a result of which it failed to consider the applicant’s application fairly
The applicant does not identify whether she alleges actual or apprehended bias and arguably alleges both.
As to actual bias, North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
His Honour went on to refer to the Canadian case of Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 as demonstrating that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. His Honour observed that it is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. (Sun’s case at 563).
The Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
· An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
· The allegation is not to be lightly made and must be clearly alleged and proved.
· The presence or absence of honesty will often be crucial.
· The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
· Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
· Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
As to apprehended bias, in Johnson v Johnson (2000) 201 CLR 488 at 492 [11], it was said that the relevant test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, Gleeson CJ, Gaudron and Gummow JJ said at [28]:
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. [footnotes omitted].
No transcript of the hearing before the Tribunal has been put in evidence in these proceedings and so there is nothing from a source such as that which the Court could rely upon to come to the view that the Tribunal, by its conduct, was not bringing an impartial and unprejudiced mind to the determination of the application for review. Neither is there anything appearing in the Tribunal’s decision record which suggests that it approached the application with a closed mind. On the contrary, the Tribunal was willing to extend the applicant’s hearing to a second day in order that her evidence could be completed and its consideration of the applicant’s claims was far from perfunctory.
It may be that the applicant’s complaint is really more about the level of questioning of her by the Tribunal and its ultimate conclusion that she was not to be believed. However, the testing of evidence and the arrival at an adverse credit finding does not indicate bias. The Tribunal’s reasons for not believing the applicant are logical and reasoned and do not indicate bias or prejudgment.
An allegation of bias is a serious thing and will not be made out without persuasive evidence to support it. There was no persuasive evidence adduced by the applicant and the allegation is not made out.
The Tribunal failed to provide adequate independent information for the consideration of the application information
This ground suggests that it was for the Tribunal to undertake enquiries to identify independent country information supportive of the applicant’s claim. For three reasons this is not so. First, it is for the applicant to make out her case. The issue is whether the Tribunal is satisfied that the applicant meets the criteria for a protection visa: s.65 of the Act. The applicant’s task is to persuade the Tribunal that the unfavourable decision under review should be set aside: Muin v Refugee Review Tribunal (2002) 190 ALR 601 per Gleeson CJ at 604 [7]. Consequently, although the applicant does not bear an onus of proof in the sense understood in litigation in the courts, nevertheless she did have to put before the Tribunal sufficient evidence and arguments that could lead it to the necessary level of satisfaction.
Secondly, the Tribunal had no obligation to undertake enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. Absent such an obligation there was no call for the Tribunal to do what the applicant appears to say it has failed to do.
Thirdly, it is for the Tribunal to determine which country information it wishes to use in the course of reaching its conclusion. As the Full Court of the Federal Court said in NAHI v Minister forImmigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
… By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
Consequently no jurisdictional error is demonstrated in respect of this asserted ground of review.
The Tribunal relied on wrong information
The task of determining what evidence will be relied upon is one which is in the Tribunal’s hands. As the passage from the Full Court’s decision in NAHI quoted above at [26] indicates, it is for the Tribunal to determine the accuracy of information it relies on, not the Court. To the extent that the applicant says that the Tribunal should have relied on information other than the information it did rely on then that, too, invites the Court to trespass into an area which is reserved to the Tribunal. It is for the Tribunal to determine which facts it chooses to rely upon in reaching its decision and, unless there is an error in respect of a jurisdictional fact which is not the case on this occasion, the Court has no power to substitute its own view of the facts, or its own conclusions in respect of the facts, in place of the Tribunal’s.
The decision was not supported by evidence and materials
To the extent that this ground asserts that the Tribunal’s decision was against the evidence or against the weight of evidence, for the reasons already expressed, this Court cannot review the Tribunal’s findings on the merits of the applicant’s application to it.
Alternatively, it may be that the applicant asserts that there is no evidence to support some of the Tribunal’s findings. However, the Tribunal’s decision on this occasion was one based on credit and the evidence which led the Tribunal to its view is to be found set out on pages 19 – 20 (CB 164 – 165) of its decision. Consequently, this asserted ground of review is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 26 June 2007
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