SZFRB v Minister for Immmigration
[2010] FMCA 395
•11 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFRB v MINISTER FOR IMMMIGRATION & ANOR | [2010] FMCA 395 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZFRB”. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a) Migration Act 1958 (Cth), ss.91R(3), 91X, 424A, 425 |
| Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | SZFRB |
| First Respondent: | MINISTER FOR IMMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2913 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 25 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser – appearing on a direct access basis. |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz (Carla Mills) |
ORDERS
The Application filed on 20 September 2007 is dismissed.
The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2913 of 2007
| SZFRB |
Applicant
And
| MINISTER FOR IMMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant is a citizen of the People’s Republic of China (PRC) and arrived in Australia on 22 June 2004. He applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 22 July 2004. On the Applicant’s Protection (Class XA) visa application he attaches a statutory declaration in which he claims the following:
a)He is an active Falun Gong practitioner and first began practicing Falun Gong in July 1998.
b)The Applicant feared persecution for practising Falun Gong as the PRC classified Falun Gong as an anti-government organisation. He claims his father used to suffer from persecution owing to his dissident political opinions as he had spent a long time in the labour farm and his health was damaged due to inhumane treatment.
c)The Applicant claims he was required to join various political study classes in the period between July 1999 and early 2000 that were organised by the Public Security Bureau (PSB). He claims he was forced to sign statements prepared by officials of the PSB in which he had to promise not to practice Falun Gong anymore. During this period the Applicant claims he witnessed the arrest of some of the more outspoken Falun Gong practitioners.
d)The Applicant claims he was forced to practice Falun Gong in secret.
e)The Applicant later learned that some of the members of the secret Falun Gong group he was practicing with were arrested and detained.
f)This prompted the Applicant to organise a meeting in June 2002 where a group of nine Falun Gong practitioners decided to actively spread propaganda materials in Liaoning Province.
g)In January 2004 the Applicant learned from a friend working in the PSB, that the PSB had set up a special investigation group into the spread of anti-government propaganda materials of Falun Gong, targeting those people who distribute Falun Gong promotion materials.
h)Some friends of the Applicant warned him that he may be in danger and assisted him in organising a passport and visa in March 2004.
i)The Applicant was reluctant to leave China however on 12 June 2004 several of the nine group members were arrested while distributing Falun Gong propaganda materials in Dlaian City.
j)When the Applicant learned of the arrests his friends assisted him to travel to Guangzhou and hide in a relative’s home. On 21 June 2004 the Applicant left China.
k)Since his departure all nine members of his group have been arrested and his home has been searched by the PSB and his wife subjected to investigation. The Applicant believes he has been listed as a person wanted by the PSB and that is why he believes he will be subjected to persecution if he returns to China.
On 23 September 2004 the delegate of the Minister refused to grant the Protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugee Convention.
The Applicant sought review of the delegate’s decision and the Tribunal, differently constituted, affirmed the delegate’s decision on 15 December 2004. The Applicant sought review of the Tribunal’s decision on 25 July 2006 and the Court, by consent, set aside the decision and remitted the matter to the Tribunal to be determined according to law (“first Tribunal decision”).
The second constituted Tribunal affirmed the decision of the delegate on 1 December 2006 (“second Tribunal decision”). The Applicant again sought review of the Tribunal’s Decision by the Federal Magistrate’s Court and on 30 March 2007 the Court set aside the decision and once again remitted the matter back to the Tribunal to be determined according to law.
The proceedings
In the proceedings before this Court, the Applicant seeks judicial review of the third and most recent decision of the Refugee Review Tribunal (“the Tribunal decision”) dated 8 August 2007 being the decision of Susan Pinto, RRT Reference Number 071398986.
This matter originally came before this Court on 31 October 2007 at which time orders were made in respect of the future timetable for the preparation and hearing of this matter. Part of those orders included that the matter be set down for final hearing on 11 February 2008 at 10:15am. On that date there was no appearance by the Applicant and the matter was dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules2001 (Cth) due to the failure of the Applicant to appear. In addition, an order was made that the Respondent provide the Applicant with written notice of the day’s orders and inform the Applicant of the Applicant’s rights under 16.05(2)(a) of the Federal Magistrates Court Rules2001 (Cth) by 18 February 2008.
On 31 March 2008 the Applicant filed an ‘Application in a Case’ seeking to have the orders made on 11 February 2008 set aside, and that his original application filed on 20 September 2007 be relisted for hearing. In support of that application the Applicant filed an affidavit affirmed on 11 March 2008 indicating the circumstances which prevented him from appearing at the scheduled final hearing. At a hearing on 16 July 2008 the Application was reinstated and a time table for hearing was set down. The rescheduled hearing date had to be vacated due to my unavailability due to illness. At a directions hearing on 19 November 2009 the Applicant was granted leave to file and serve an Amended Application as a result of intervening decision of the High Court affecting the original grounds of review relied on by the Applicant. At that time the matter was relisted for final hearing on 25 February 2010.
A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”. This is the only evidence before the Court.
At the first court date directions hearing, the Applicant was granted leave to file an amended application. Consequently, the Applicant filed an amended application on 25 February 2010 which contains the following ground:
1. The Tribunal failed to make an obvious enquiry about the critical fact associated with the statutory declaration of Tong Xing Zhang dated 24 October 2006.
Tribunal decision
The Applicant gave oral evidence before the first Tribunal on 8 December 2004, the second Tribunal on 1 November 2006 and the third Tribunal on 14 June 2007. On 6 July 2007 the Tribunal forwarded a letter inviting comment on information the Tribunal considered central to the review Application. The Applicant’s reply was date stamped by the Tribunal on 23 July 2007. The On 8 August 2007 the third Tribunal member affirmed the delegate’s decision to refuse the Applicant a Protection visa after reviewing at length, claims and evidence. The third Tribunal rejected the Applicant’s claim based on adverse credibility findings and found that the Applicant was not a credible witness (CB 211 – 217).
The third Tribunal found inconsistencies in the evidence given by the Applicant at all three Tribunal hearings, compared with the claims stipulated on his Protection visa application (CB 211 – 217). The Tribunal member gave the Applicant an opportunity to explain these inconsistencies by issuing a s.424A letter on 6 July 2007 following the hearing. The Applicant responded to the s.424A letter on 25 July 2007 (CB 180 – 183). The previously constituted Tribunal (second Tribunal) had also sent a s.424A letter to the Applicant in relation to a number of inconsistencies in the Applicant’s evidence (CB 97). The third Tribunal did not accept the explanation given in the Applicant’s response to either of these two s.424A letters (CB 215 – 216).
The third Tribunal member found that the Applicant’s knowledge of Falun Gong to be rudimentary. It found that the Applicant had only taken part in Falun Gong activities as early as four months before the third Tribunal hearing which was held on 4 June 2007. As a consequence of the adverse credibility findings the Tribunal found that the Applicant’s conduct in only commencing Falun Gong activities after being in Australia for 2.5 years was undertaken for no other reason than to strengthen his claim to be a refugee. Accordingly, the Tribunal disregarded that evidence as required under s.91R(3) of the Migration Act1958 (Cth) (“the Act”) (CB 216 – 217). The third Tribunal consequently rejected the Applicant’s claim regarding his practice of Falun Gong. The Tribunal considered the Applicant’s claims that his daughter and wife suffered harm in their home after he departed from the People’s Republic of China, but was not convinced that this claim was true (CB 217). The Tribunal also considered and rejected the claim that the Applicant had been previously subjected to re-education because of his father and grandfather’s link to Guomindang during the cultural revolution in 1975 (CB 217 – 218).
Applicant’s submissions
Mr Zipser who appeared on a direct access basis, indicated that he relied upon an Amended Application because his previous approach in respect to s.91R (3) of the Act had been ruled against by the High Court so this argument had been abandoned. There was no objection to the Amended Application being filed so this hearing proceeded on that basis.
Mr Zipser acknowledged that there were a number of inconsistencies in his client’s claim. In particular, by the time that his client had been to three Tribunal hearings, the third Tribunal had identified a number of inconsistencies in his evidence. Mr Zipser submits however, that the Tribunal is obliged pursuant to s.425 to conduct a review according to law and if the Tribunal fails to do so, jurisdictional error will result. Mr Zipser argues in this case the Applicant’s claims are that he was engaged in Falun Gong in China and when he arrived in Australia he continued the practice of Falun Gong.
The issue that is now in contention before this Court concerns the Applicant’s claims in respect to his practice of Falun Gong in Australia. The Applicant supplied to the Tribunal a Statutory Declaration of Tong Xing Zhang who states on oath that he is an Australian Citizen and a retired professor. In that Statutory Declaration he states:
Mr [SZFRB] shared one of my house from 23 December 2005 to 6 December 2006 introduced by my friends Mr Wang.
During the period of staying here I saw [him] practiced Falun Gong at my backyard at about 10pm every night.
The professor provides two phone numbers, a land line phone number and also a mobile phone number.
Mr Zipser submits that if Mr Zhang is telling the truth, then this provides important corroborative evidence that the Applicant, at least from September 2005, was regularly practicing Falun Gong in Australia.
In the Tribunal decision the Statutory Declaration was considered.
Having regard to the evidence discussed above, the Tribunal also does not accept the Applicant’s claim that he practiced privately at the farm or, as stated in the statement provided to the second constituted Tribunal by [Mr] Zhang, that he practiced at the backyard of a house in Campsie where he resided for one month in December 2004. The Tribunal considers that the letter from [Mr] Zhang is extremely brief and does not identify how [Mr] Zhang knows the Applicant or how [he] knows that it was Falun Gong he was practicing in the backyard. The Tribunal does not accept that the letters from [Mr] Zhang establish that the Applicant was practicing Falun Gong at that time (CB 217).
Mr Zipser brings to the Court’s attention that the Tribunal refers to the person Zhang as Ms whereas it is believed that that person is in fact a male. Mr Zipser acknowledges that the Tribunal considered or had regard to the letter from Mr Zhang. He also acknowledges that the letter was brief and that Mr Zhang did not identify how he knew that it was Falun Gong that the Applicant was practicing. However, Mr Zhang provided two telephone numbers he could be contacted on. As the Tribunal implicitly was willing to accept Mr Zhang as a witness of truth, there was information which he could quite simply have provided and could have been obtained by making a phone call. Mr Zipser submits that the Tribunal should have phoned Mr Zhang and asked him
How do you know the Applicant?
How do you know that it was Falun Gong that the Applicant was practising in the backyard?
Mr Zipser argues that the question is whether the Tribunal’s failure to phone Mr Zhang establishes a jurisdictional error and that the answer lies in the High Court decision in Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [20] where the Court stated:
The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
The High Court then considered whether or not it agreed with the proposition at [25]:
… The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. 35 See authorities collected in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 ; 182 ALR 657 ; 64 ALD 545 ; [2001] HCA 51 at [189], footnote 214.
Mr Zipser submits that in the present case, and following the language in SZIAI (supra) at [25] that the failure to phone Mr Zhang which is an obvious and simple enquiry about a critical fact results in a jurisdictional error. Mr Zipser argues that the fact about establishing whether the Applicant was practicing Falun Gong in Mr Zhang’s backyard and how Mr Zhang recognised this activity as being Falun Gong supplies a sufficient link to the outcome of the case because if Mr Zhang had provided sufficient detail, then it is more likely than not that the Tribunal would have been satisfied that the Applicant was practicing Falun Gong in Mr Zhang’s backyard in December 2005 and January 2006.
Mr Zipser contends that the matter before this Court falls within the principle stated at [25] in SZIAI (supra), being:
a)Mr Zhang provided his contact telephone numbers;
b)it would have been easy for the Tribunal to phone Mr Zhang to obtain further details from him;
c)further details which could have been obtained from Mr Zhang were important to the determination of the proceedings; and
d)the Tribunal did not disbelieve Mr Zhang’s evidence,
For these reasons the Tribunal should have contacted Mr Zhang to obtain further details from him.
Respondent’s submissions
Mr Cleary, appearing for the Minister, submits that a significant element of the Applicant’s claim is that he faced persecution on his return to China by reason of his misconduct in Australia. The Tribunal’s finding under s.91R(3) was that it was not satisfied that the conduct was engaged in for any other purpose than to strengthen his refugee claim. Because of that finding, the Tribunal in its decision has disregarded the conduct engaged in by the Applicant in Australia. Importantly, the evidence of Mr Zhang goes to that very issue.
Mr Cleary argues that the type of enquiry addressed to Mr Zhang would not have been of any use because it was not critical to the finding of the Tribunal. The Tribunal dealt with Mr Zhang’s evidence in its decision at p.217 which is reproduced at para.[17] above. The Tribunal did not find that the Statutory Declaration contained false statements or that there was any other authenticity problem. The Tribunal examined the document, considered it, and on its own terms has come to the conclusion that it did not accept the evidence. It found the document to be extremely brief and did not identify how Mr Zhang knew the Applicant or how he knew that it was Falun Gong that the Applicant was practising in the backyard.
In Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 per French J (as His Honour then was) at [27] confirmed the well accepted principle governing fact finding functions of the Refugee Review Tribunal as:
The Tribunal is entitled to accept or reject or give such weight to evidence proffered as it thinks appropriate in all the circumstances.
There is nothing erroneous about the Tribunal coming to its own conclusion about the Statutory Declaration of Mr Zhang. The finding regarding the Statutory Declaration is a fact finding function of the Tribunal under the Act. It was a matter for the Tribunal whether it accepted or rejected Mr Zhang’s Statutory Declaration.
Mr Cleary submits that the obligation, if there is any, to make further enquiry is contained in s.424 however, that section is not enlivened because it was not the Tribunal that was doing the investigating. It did not go and obtain a statement from Mr Zhang or make any enquiry of Mr Zhang. The Statutory Declaration had been obtained by the Applicant himself and provided it to the Tribunal. In these circumstances it is a situation similar to that in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 per Wilcox J that it is for the Applicant himself to make out his own case and the burden is on him accepting and understanding all of the unusual exigencies on Applicants in refugee claims. However the burden lies with the Applicant to establish the factual basis for his claim. There was no duty on the part of the Tribunal under the Act to investigate the Statutory Declaration further by contacting the witness, Mr Zhang, to obtain information from him about his evidence. The Tribunal has no statutory obligation under the Act to carry out such an enquiry. Section 422B makes it clear that any procedural fairness is circumscribed by the Act and limited to the obligation imposed on the Tribunal by the Act. The common law natural justice rule has been abrogated by s.422B of the Act.
Mr Cleary submits that the recent decision in SZIAI (supra) the High Court set out limited circumstances where the Tribunal may be obliged to make its own enquiry. In that case the High Court concluded that the Tribunal, exercising its power of review under the Act did not have a duty to enquire, but rather it had a duty to review. The Court found that only where there was a failure to make an “obvious enquiry of a critical fact, the existence of which is easily ascertained” could an argument be made that a jurisdictional error may have occurred: SZIAI (supra) at [24].
Mr Cleary argues that contrary to Mr Zipser’s submission, there was no failure to make an obvious enquiry of a critical fact, the existence of which was easily ascertained. The Tribunal did not accept the evidence of Mr Zhang supported the Applicant’s claim that he practiced Falun Gong. Contacting Mr Zhang by telephone would not have made any difference to the Tribunal’s acceptance or rejection of Mr Zhang’s Statutory Declaration. Mr Cleary submits that this is precisely the type of enquiry the High Court said in SZIAI would not amount to an enquiry of a critical fact, the existence of which was easily ascertained.
Mr Cleary submits that to be useful, such an enquiry would need to go beyond simply calling Mr Zhang. Calling Mr Zhang would not have achieved anything beyond confirming he had provided the Statutory Declaration whereas, what seems to be asserted on behalf of the Applicant is that the Tribunal had some obligation to further examine and test the evidence of Mr Zhang, presumably by calling him and inviting him to an oral hearing for the purposes of determining the veracity of his evidence. The Tribunal had no obligation to conduct such an enquiry. It does not fall within the category of enquiry that is referred to by the High Court in SZIAI at [25] as being an enquiry the Tribunal would be obliged under the Act to carry out. It goes well beyond any limited obligation the Tribunal may have to enquire under the Act as discussed in SZIAI.
Mr Cleary submits that for the reasons given by the High Court in SZIAI at [26] this Court should reject the Applicant’s submission that the Tribunal ought to have conducted some form of enquiry into Mr Zhang’s evidence to ascertain if he established that the Applicant was practicing Falun Gong in December 2005, or not, while living in Campsie. Such an enquiry was not an “obvious enquiry of critical fact, the existence of which [was] easily ascertained”.
Consideration
In Minister for Immigration and Citizenship v SZIAI & Anor (supra) their Honours found that there is not a procedural obligation at common law to enquire. Their Honours stated at [20] that if there is an obligation to enquire, it must flow from the Act.
That is a reference to the language of Wednesbury unreasonableness and acknowledgement by the High Court that if there is going to be an allegation of failure to enquire, then that itself does not constitute jurisdictional error. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 the Tribunal had engaged a psychiatrist who made a preliminary report and an issue that arose at to whether it should have gone back and asked the psychiatrist to provide a further report about a particular issue. The High Court found that the Tribunal did not have an obligation to enquire and so it did not have an obligation to go back and seek a further report. The allegation that the Tribunal had failed to enquire did not give rise to a jurisdictional error except in the circumstances where the High Court has indicated in SZIAI at [20] it supports a characterisation of a decision of an exercise of power so unreasonable. Something more fundamental has to be established for there to be a duty to enquire before it can be established that the Tribunal has committed jurisdictional error.
In Minister for Immigration and Citizenship v SZIAI (supra) at [22] – [24] the High Court discusses and confirms Prasad v Minister for Immigration and Ethnic Affairs (supra)specifically to its own facts as it was a decision under the AD(JR) Act and not under the Migration Act. In the Minister for Immigration and Citizenship v SZIAI, the High Court followed Wilcox J in Prasad at [25] indicating that the duty imposed on an administrative decision maker is specific to the legislative regime under which the decision is made. Their Honours stated:
The duty imposed upon the tribunal by the Migration Act is a duty to review
That in effect is a rejection of the idea that there is some duty to enquire. However, a failure to make an obvious enquiry about a critical fact, and interpolating that into the review, the existence of which is easily ascertained, could in some circumstances supply a sufficient link to the outcome to constitute a failure to review. It is insufficient to simply assert that there is some failure to enquire. The requirement is that you have to go further to establish that there has been a reasonable exercise of power and in the matter before this Court that has not been established. In Minister for Immigration and Citizenship v SZIAI (supra) [26] the High Court went on to consider the particular aspects of that case and found:
… But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the Respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the Respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves.
For an obligation to enquire to exist, their Honours stated that it has to be about a critical fact, the existence of which is easily ascertained. That would not encompass the situation in this matter where the argument advanced on behalf of the Applicant is asking the Tribunal to conduct what would be an examination of a witness over the telephone. In effect, another hearing under s.425. It would not be a simple phone call asking Mr Zhang to respond to the two questions advanced on behalf of the Applicant (see [18] above).
Furthermore, this proposed approach places an obligation on the Tribunal to test the evidence that Mr Zhang has given in the Statutory Declaration. That does not amount to an enquiry about a critical fact, the existence of which is easily ascertained and would not be an enquiry based upon what the High Court has said in SZIAI (supra), that the Tribunal ought to be engaged in or would be obliged to be engaged in.
I refer to the written submissions of Mr Cleary filed in these proceedings and accept that paragraph [36] of those submissions effectively summarises the approach for this Application for Review. Contrary to the Applicant’s submission, there was no failure to make any obvious enquiry of a critical fact, the existence of which was easily ascertained. The Tribunal did not accept that the evidence of Mr Zhang supported the Applicant’s claim that he practiced Falun Gong. Simply contacting Mr Zhang by telephone would not have made any difference to the Tribunal’s acceptance or rejection of Mr Zhang’s Statutory Declaration. This is precisely the type of enquiry that the High Court said in Minister for Immigration & Citizenship v SZIAI would not amount to an enquiry of a critical fact, the existence of which was easily ascertained.
To be useful, such an enquiry would need to go beyond simply calling Mr Zhang. Simply calling Mr Zhang would not have achieved anything beyond confirming that he had provided the Statutory Declaration. What is being advanced on behalf of the Applicant seems to be an assertion that the Tribunal had some obligation to further examine and test the evidence of Mr Zhang, presumably by calling him and inviting him to an oral hearing for the purposes of determining the veracity of his evidence. The Tribunal had no obligation to conduct such an enquiry.
For the reasons given in Minister for Immigration & Citizenship v SZIAI at [26] – [27] I reject the submission advanced on behalf of the Applicant. I am satisfied that the grounds of review cannot be sustained and should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
11 June 2010
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