SZEVG v Minister for Immigration
[2005] FMCA 1411
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEVG v MINISTER FOR IMMIGRATION | [2005] FMCA 1411 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration & Multicultural Affairs (2001) FCA 679
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
| Applicant: | SZEVG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2081 of 2004 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 3 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms Stella Koya |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2081 of 2004
| SZEVG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 7 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 May 2004 and handed down on 8 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 4 February 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEVG”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 24 January 2004. On 28 January 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-37) (“CB”). On
4 February 2004 the delegate refused to grant a protection visa (CB pp.38-50) and on 9 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.51-54).
According to her visa application, the applicant was born in June 1971 and is a Chinese national. She stated she is married with one son. The applicant claimed she had completed fifteen years of schooling including two years of tertiary technical education and stated her occupation was Deputy Manager. The main contention of the applicant’s application is that she practised Falun Gong whilst in China in order to improve her health and to provide her with emotional support. She alleged that when Falun Gong was banned by Chinese authorities the local police came to her work place. She claimed that in September 2003 whilst practising Falun Gong with other members of the organisation she was discovered by the local police and her colleagues helped her to escape in order to avoid detention by the authorities.
The Tribunal’s findings and reasons
Ms S Koya, Solicitor appearing for the respondent, prepared written submissions prior to the hearing which contained a summary of the Tribunal’s decision which I have adopted and reproduced as follows:
a)The Tribunal affirmed the delegate’s decision and found that there was no credible evidence to show that the applicant was a refugee. The Tribunal accepted that the applicant was from the People’s Republic of China and assessed her claims against that country. The applicant claimed that was a Falun Gong practitioner and had suffered persecution because of it. After considering country information, the Tribunal recognised that Falun Gong practitioners in China may be subject to persecution by Chinese authorities. However, the Tribunal found that the applicant was not a Falun Gong practitioner (CB pp.73-74).
b)The applicant claimed she became a member of the Falun Gong while she was at school and had practised for at least six or seven years. The Tribunal tested her knowledge of Falun Gong and found that she was unable to demonstrate any Falun Gong exercises, draw the Falun Gong symbol or name the founder of the organisation. The Tribunal found it implausible that the applicant had been associated with Falun Gong for that period of time but was unable to relate any activities or practices of the organisation (CB pp.73-74).
c)The Tribunal found the applicant’s claims of persecution inconsistent and far from credible (CB p.74). The Tribunal considered the applicant’s claims in her application for review and the claims made at the hearing and found them to be inconsistent. In her oral evidence at the Tribunal hearing, the applicant claimed she was detained by authorities in 2002 but was unable to specify a date. She claimed she had not mentioned her detention in her written application due to her own negligence. The applicant’s claims in her written application were that she began making plans to leave China after the police visited her workplace in September 2003 (CB p.74). The Tribunal accepted that in some circumstances there might be confusion as to exact dates of periods of detention but it did not accept that the applicant would have forgotten that she was detained (CB p.74).
d)At the hearing the Tribunal put the inconsistencies in her claim to the applicant and pointed out that the inconsistencies undermined her credibility (CB pp.70-71). The Tribunal invited the applicant to supply any written evidence she might have to support her application within 14 days. The applicant did not supply any further evidence.
Application for review of the Tribunal’s decision
On 7 July 2004 the applicant again filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 30 December 2004 the applicant filed an amended application in the form of the following statement:
“I worried about my safety in China and came to Australia for protection and lodged my application for a protection visa. The application was refused by DIMIA and by RRT respectively. The tribunal officer did not consider my application in a way it should be. He made mistakes from time to time. He mentioned at the decision letter: ‘The Tribunal found the Applicants claims that she is a Falun Gong practitioner far from credible. She did not seem to have any knowledge of Falun Gong as an organization, or any idea relating to the practices of the organization. By her own admission she has been involved in the organisation since she was in school. The Tribunal finds it implausible that someone who claims to be long-standing member of an organisation could be so lacking in any knowledge of the organisation they profess to belong to. It is one thing for an applicant to claim that he or she is not able to draw symbol of his or her religious organization, but it another thing for the applicant not know the basic exercises, or indeed the name of the heard of the organisation which he or she claims to belong and has been associated with for over five years. The Tribunal finds it incredulous that the applicant could not as a member of Falun Gong, relate to any of the activities or practices of that organisation.’ The tribunal officer suspected my credibility without any evidence. He said that I did not seem to have any knowledge of Falungong without any evidence to prove his saying, he said I could not draw symbol of my religious organization while I believe that I can with no problem. He said that I did not know the basic exercises, which I believe that I know that much more then him. He is not a Falungong member, he did not refer to any independent information, how could he know so much of Falungong? During the hearing he stopped me from answering questions from time to time; he did not give me proper opportunity to explain my application. He kept saying that my oral testimony is in conflict with my written testimony in which I stated I was visited by the police authoritites. RRT’s function is to consider any information which has not been provided with the initial application with DIMIA. He should not refuse my application because I provided something new to RRT. I believe that the Tribunal officer made jurisdiction mistakes when considering my application.” (Errors included)
On 21 January 2005 the applicant again filed an amended application which contained the following three grounds:
1.I was not given a proper opportunity to explain my case because during the interview, the Tribunal officer stopped me from answering questions from time to time. He kept saying that my oral testimony is in conflict with my written testimony.
2.The Tribunal officer did not refer to any independent information and strongly believed that I am not a Falungong member. The Tribunal officer suspected my credibility without any evidence nor referring to any independent information, I am a Falungong member, but
I can not answer some of the questions asked by the Tribunal officer because the terms have been translated again and again, the meaning became totally different. There are not the real terms of Falungong.
3.The Tribunal officer refused to accept any of my [explanation] at the hearing because of his bias against me. The Tribunal failed to exercise its jurisdiction as it failed to make any finding whether I would be persecuted on my return to China. (Errors included)
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicant appeared self represented with the aid of an interpreter. The applicant attended a directions hearing on 8 October 2004 and consented to Short Minutes of Order at that time, which included the filing and serving of an amended application and any evidence which she proposed to rely upon at the hearing. The applicant complied with this direction and filed two amended applications. No written submissions were filed and served prior to the hearing.
The solicitor for the respondent wrote to the applicant on 6 January 2005 indicating that the respondent had received the document dated 30 December 2004 titled “Amended Application” and that the document merely recited general claims for refugee status and was directed purely at the merits of the decision under review. The grounds advanced in the form of an amended application did not point to any jurisdictional error on the part of the Tribunal. The document filed by the applicant on 21 January 2005, although differently formatted and titled “Amended Application”, contained substantially the same material. The applicant made no oral submissions in support of her case and relied upon her written applications.
Ms S Koya, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)Contrary to what the applicant alleges, the Tribunal clearly offered the applicant the opportunity to substantiate and expand upon her claims. The Tribunal further invited the applicant to provide additional evidence post hearing. The applicant did not take up this opportunity. The Tribunal therefore did not deprive the applicant of a proper opportunity to put her case and this ground of review must be rejected.
b)Based on the inconsistent evidence provided by the applicant, the Tribunal found the applicant to be not credible. The Tribunal’s finding of adverse credibility, where such findings are reasonably open on the evidence before it, is properly the function of the decision-maker and generally not susceptible to judicial review by the Court. In Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham, the High Court held that:
“A finding on credibility is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why the particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”
c)The Full Federal Court in W148/00A v Minister for Immigration & Multicultural Affairs per Tamberlin and RD Nicholson JJ stated that:
“A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”
d)The Tribunal noted that the applicant could not explain or demonstrate any understanding of the Falun Gong movement’s basic precepts. The Tribunal found the applicant did not know the basic Falun Gong exercises and did not know who the founder of the movement was. The Tribunal also noted that the applicant could not show a continuing association with the movement in Australia. It was reasonably open to the Tribunal to find that the applicant’s testimony was not credible and to conclude that the applicant was never a Falun Gong practitioner.
Reasons
The Tribunal wrote to the applicant on 8 April 2004 advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour based on that information alone (CB pp.57-58). The Tribunal issued an invitation for the applicant to attend an oral hearing on 28 April 2004 to give evidence and present arguments in support of her claims. She was also invited to submit new documents or written arguments to the Tribunal for consideration. Further, the applicant was advised that she may bring witnesses to the hearing to give oral evidence in support of her claim. The applicant accepted the invitation and attended the Tribunal on
28 April 2004. The Tribunal summarised the testimony of the applicant in the decision (CB pp.68-71). The decision recorded a considerable amount of detail in respect of the applicant’s claimed participation in the Falun Gong movement. The content of the material in the decision does not give any indication that the applicant was prevented in any way from responding to the issues raised or not provided with an opportunity to explain her circumstances in China and the alleged impact of being a follower of the philosophy of Falun Gong.
There was no transcript or tape of the Tribunal hearing tendered as evidence at the hearing before this Court to adduce evidence that the applicant had been denied the opportunity of explaining her involvement in the Falun Gong movement and the attacks she experienced from the authorities because of her adherence to that philosophy. The Court file does not indicate whether the applicant participated in the Pilot RRT Legal Advice Scheme (NSW). However, the file did contain a copy of the Registrar’s information sheet for unrepresented applicants with the signature of the applicant under the statement indicating she had read the information sheet with the assistance of an interpreter. The document was countersigned by the qualified Mandarin interpreter and the Registrar. On that information sheet is the statement regarding the availability of Tribunal hearing tapes and the requirement that a written transcript be prepared from the hearing tape and certified by the parties if they are to be used as part of the application to the Court.
There was no evidence or submissions made in respect of the first ground contained in the second amended application to support the claim that the applicant was not provided with the proper opportunity to explain her case in the interview because the Tribunal officer stopped her from answering questions from time to time. The obligation for the applicant is to make out her own case. The relevant facts pertaining to the application need to be supplied by the applicant herself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to make out her own case: Minister for Immigration & Ethnic Affairs v Guo & Anor per Kirby J at 596. In this case, the applicant had the opportunity to attend the Tribunal hearing and furnish additional facts. To the extent that she did, the applicant cannot now complain that any other facts were not taken into account or furnish additional facts and ask that they be taken into account. Nor can the applicant claim that she was denied the opportunity to place material before the Tribunal without evidence to support that claim.
The other element contained in the first ground was that the Tribunal officer indicated that the applicant’s oral testimony was in conflict with the written claims in her application. The Tribunal member raised with the applicant a number of inconsistencies in her evidence which were very significant. The applicant’s claimed arrest and detention in her oral evidence at the hearing was not referred to in her original written application and a satisfactory explanation of this inconsistency when raised during the interview was not forthcoming. These issues led the Tribunal to its finding in respect of credit. I accept the respondent’s submissions and authorities that it is a proper function of the decision-maker to consider the evidence before it and to make any findings of adverse credibility from that material.
In the applicant’s second ground, it was alleged that the Tribunal officer did not refer to any independent country information in respect of the nature and operation of the philosophy known as Falun Gong. In the Tribunal’s decision, under the heading of “Findings and Reasons”, the Tribunal member referred to four different sources of information about this subject and the respective resources were listed in the footnotes (CB pp.72-73). Further, there were two extracts from that literature reproduced within the “Findings and Reasons” section of the Tribunal’s decision. That argument cannot be sustained.
Also included in this ground was a suggestion that the applicant was unable to answer a number of the Tribunal member’s questions in respect of the philosophy and operation of Falun Gong because of a problem with the translation of Falun Gong terms. She claimed that the meaning of the translated terms were “totally different to the real terms of Falun Gong”. However, no complaint was made by the applicant at the Tribunal hearing in relation to the translation by the interpreter. In any event, the applicant claimed to be a long-standing Falun Gong practitioner. The applicant claimed she had commenced the practice of Falun Gong whilst still at school and she had learnt about it from a group of friends. She also stated that she had read books and other texts associated with the organisation but she was unable to demonstrate the Wheel of Life symbol that represents Falun Gong. The applicant was not familiar with the exercise routines commonly performed by Falun Gong practitioners and gave the explanation that she practiced just a little and did not know the exercises as such. The applicant was also unable to identify the leader of the Falun Gong movement. The Tribunal found that these responses by the applicant were implausible for someone who claimed to be a long-standing member of the organisation and that she was unable to provide basic information about the organisation that she professed to belong to. The Tribunal found it “incredulous that the applicant could not as a member of Falun Gong, relate to any activities or practices of that organisation” (CB p.74). The issues raised in the second ground cannot be sustained.
In the third ground, the applicant claimed that the Tribunal officer refused to accept any of her explanations during the hearing because of his bias against her. When an applicant makes an allegation that the Tribunal’s decision was tainted by actual bias there must be very strong evidence of this otherwise the allegations are likely to be considered as mere attacks on the merits of the decision: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (“SCAA”) per von Doussa J at [37]:
“A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality.”
A party asserting actual bias on the part of the decision maker carries a heavy onus. The allegation must be ‘distinctly made and clearly proved’: Minister for Immigration & Multicultural & Indigenous Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. No submissions, oral or written, or any evidence were submitted by the applicant in support of this claim of bias. In the absence of any evidence of bias, the only avenue that remains is to determine whether the Tribunal decision demonstrates bias on its face. A fair reading of the document does not disclose the existence of bias. As stated earlier, the applicant has not attempted to file a recording of the Tribunal hearing or a transcript that discloses anything that was said or the manner in which the Tribunal hearing was conducted. Further, the authorities are clear that one cannot extrapolate bias from the existence of adverse findings alone. This was confirmed in SCAA per von Doussa J at [38].
The final issue raised in ground 3 was that the Tribunal failed to exercise its jurisdiction in that it failed to make any findings whether the applicant would be persecuted on her return to China. This allegation was not supported. The Tribunal was not satisfied that the applicant was a member of the Falun Gong. Consequently, the Tribunal was not satisfied that the applicant faced any persecution in China should she return because of her alleged association with the Falun Gong movement. The Tribunal was not satisfied that the applicant had presented any credible evidence to suggest that she was likely to face persecution for Convention reason on her return to China. The third ground cannot be sustained.
Conclusion
As the grounds in the application are generic in nature and expressed generally without particularisation, I have not been able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005
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