SZFSV v Minister for Immigration

[2006] FMCA 98

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFSV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 98

MIGRATION – RRT decision – Chinese claiming persecution as Falun Gong practitioner – disbelieved by Tribunal – no evidence of bias or denial of procedural fairness – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 424A(1), 430, 430A, 430B, 430C, 430D, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant: SZFSV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG417 of 2005

Judgment of: Smith FM

Hearing date: 19 January 2006

Delivered at: Sydney

Delivered on: 19 January 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr A Cox

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Tribunal is included as second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG417 of 2005

SZFSV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 17 February 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which was given orally to the applicant at the conclusion of a hearing held by the Tribunal on 25 January 2005. The Tribunal then published its reasons and decision in a written form pursuant to s.430D of the Migration Act. The Tribunal affirmed a decision of the delegate refusing an application for a protection visa.

2. The Court’s jurisdiction under s.483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuation of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.

4. The applicant arrived in Australia on a one month temporary business visa in October 2004, and made an application for a protection visa on 19 October 2004.  The application did not disclose the person who gave her assistance.  Her claims for protection in Australia against return to her country of nationality, The People’s Republic of China, were contained in a statement which was provided in Chinese and in translation: 

   I was born in a beautiful city in [province], located in the west part of China, where I was a successful woman with a happy family, a clever and smart son. 

   Especially after practicing Falun Gong, which was introduced by my friend, I experienced great change in myself, feeling that I am the happiest person in the world.  However, disasters fell on me in 1999 when China declare it illegal to practice Falun Gong.  Because I introduced some of my relatives and friends to practice Falun Gong and joined the gathering in Beijing, I was detained by Chinese police for 15 days, during which I was forced to wash my head, and not allowed to see my family members.  They found some books and tapes about Falun Gong and claimed that I turned against the government. 

   In fact, I did not turn against my motherland.  I practiced Falun Gong just for purpose of improving my health situation.  How can it be an anti government act?  They tortured me physically and spiritually continuously, which completely frustrated me.  I signed the paper declaring that I would not practice Falun Gong again. 

   But even in this situation, the Chinese government is still not satisfied, they will intrude into my home to question me, which make me frightened and painful.  Therefore, I feel that there is no democracy and human rights.  I hereby sincerely hope that the Australia government can protect me and give me peaceful land to live. 

5. No supporting information nor evidence was given to the Department, nor subsequently to the Tribunal. 

6. A delegate refused the application on 15 November 2004.  His or her statement of reasons indicated that the claims lacked credibility, in particular because of the absence of information and also based upon other details in the applicant’s visa application and in her passport. 

7. The applicant lodged an application for review by the Tribunal on 29 November 2004, appointing a migration agent to act on her behalf.  She attended a hearing conducted by the Tribunal on 25 January 2005.  The invitation asked her to bring her passport to the hearing, and it appears to me that she probably did this since further parts of her passport have been reproduced from the Tribunal’s file.  The only evidence as to what occurred at the hearing is contained within the Tribunal’s reasons themselves. 

8. The Tribunal said that the applicant revealed “no familiarity with the [Falun Gong] exercises at all” after it sought to explore her knowledge of Falun Gong practices.  It said that she then told the Tribunal “that she is not a real Falun Gang practitioner, but simply a person who agreed with its three basic tenants” and “insisted that she herself never joined the movement”.  The applicant did maintain that she had persuaded people to join Falun Gong and as a result had been arrested, detained and tortured “during the crackdown in, as she put it, 1996” (Tribunal’s emphasis).  The applicant maintained that year as the date of the crackdown on the Falun Gong movement.  However, the country information which was before the Tribunal identified the date of the banning of the movement as 22 July 1999, following a demonstration in April 1999.  The Tribunal also referred to its questioning of the applicant concerning details in her passport.  

9. The Tribunal’s reasons for affirming the delegate’s decision were brief: 

   FINDINGS AND REASONS 

   The Tribunal accepts that the Applicant is a national of the PRC. 

   The Tribunal does not accept that the Applicant made credible claims to DIMIA.  The Tribunal concludes that the Applicant, although retreating significantly at the RRT hearing from her original claims, presented as a highly unreliable witness, trying to fabricate a case with what few facts she left herself able to exploit, such as the claim about having to deceive authorities to let her leave the PRC. 

   The Tribunal does not accept that the Applicant has ever been, or would in the foreseeable future be, regarded as having any even remote links with the Falun Gong movement. 

   The Tribunal relies on the evidence in the Applicant’s passport of an unremarkable relationship with PRC authorities.  The Tribunal is not satisfied that the Applicant faces a real chance of Convention‑related persecution in the PRC.  Her claimed fear of such persecution is not well‑founded.  She is not a refugee. 

   Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention.  Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. 

10. It was the task of the Tribunal to form an assessment of the truth of the claims made by the applicant in support of her claim to fear persecution if she returned to China, and also to assess such parts of her history as the Tribunal might accept against country information to decide whether there was a real chance in the foreseeable future of her suffering persecution.  In my opinion the Tribunal has performed that task without making an error amounting to jurisdictional error. 

11. The applicant has filed an application and an amended application in this Court but no written submission.  Her central claim in those two documents and in her oral submissions to me is “that the Tribunal officer had bias against me and refused my application without going through the right step”. 

12. Some particular criticisms are made in the original application, and were also made to me in general terms in the applicant’s submissions to me today.  These included that the Tribunal did not give her an opportunity to explain her involvement in Falun Gong, that it “always interrupted me”, that it did not refer in its reasons to evidence she gave to it, that it “did not listen to me”, and that it “did not ask questions in detail”. 

13. These contentions might show a failure by the Tribunal to follow lawful procedures, if there was any evidence to support them.  However, there is no such evidence presented to me.  The applicant’s attention appears to me to have been clearly drawn to the need for such evidence at the first court date before the Registrar on 1 March 2005.  The Registrar’s copy of short minutes which were signed by the applicant contain a clear direction which was given to the applicant that: 

    The applicant file and serve any affidavit containing additional evidence including evidence as to bias and any transcript relied upon, including transcript of a tribunal hearing, 24 May 2005 (emphasised insertions made in handwriting). 

14. The Registrar has also noted that she confirmed that the tape of the hearing before the Tribunal was held by the Minister’s solicitors and would be sent to the legal adviser appointed under the RRT legal advice panel scheme.  I think it is reasonable to infer that there was discussion specifically at the first court date with the applicant, who was assisted by an interpreter, concerning the need to present the Court with evidence in support of the allegations of bias. 

15. I note that the applicant did receive a consultation and advice from a barrister appointed under the panel scheme.  However, she has not presented a transcript of the hearing, and it is impossible for me to accept her contentions in the absence of that evidence.  I am not persuaded by the Tribunal’s own description of the hearing that anything occurred which would satisfy the tests of apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]‑[32]). I am not persuaded that the applicant was denied a reasonable opportunity to present her claims at the hearing, nor that the Tribunal failed to consider all her evidence.

16. The applicant also complained that the Tribunal gave its decision on the same day as the hearing. However, the Migration Act envisages this as a procedure open to the Tribunal (see ss.430 to 430D), and in the present case I can see nothing in the circumstances that might suggest that the adoption of such a procedure prevented the Tribunal performing its duty to conduct a review in a proper fashion.

17. The applicant’s amended application also contains general contentions that the Tribunal failed to follow procedures or provisions of the Migration Act. However, no particulars of these contentions were given in that document, nor was the applicant able at today’s hearing to identify a procedure which was not followed according to law. I think she regarded those grounds as being encompassed in her various criticisms of the hearing, which are dealt with above.

18. Two further contentions are made in the amended application.  The first is: “The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief”.  However, in my opinion, that description cannot be applied to the reasoning which I have extracted above. 

19. The second point is: “The Tribunal did not provide me adequate particulars of the independent information”. However, in the present matter the Tribunal was not under any duty to give the applicant a specific opportunity for comment upon general country information. This is the effect of s.424A(3)(a) and s.422B(1) of the Migration Act (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).

20. The Minister’s solicitors in their written submission have raised the issue of whether there was an obligation on the Tribunal to invite written comments pursuant to s.424A(1), in relation to information used as a part of the reason for affirming the delegate’s decision which was not given by the applicant for the purposes of her review application. However, in my opinion no such information was relevantly used by the Tribunal. Its reference to “evidence in the Applicant’s passport” should in my opinion, in the circumstances, be understood as evidence obtained from the passport presented at the Tribunal’s hearing. 

21. The Tribunal’s opinions as to the applicant’s unreliability as a witness refer to her departure from her claims made in her statement to the Department.  However, in my opinion, this did not show the use of that information except in the assessment of her overall claims and in a manner which did not give rise to the duty (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)]).

22. For the above reasons I do not consider that the Tribunal’s decision was affected by jurisdictional error. It was therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding twenty‑two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  6 February 2006