SZFUF v Minister for Immigration
[2007] FMCA 112
•13 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFUF & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 112 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 415, 422B, 424, 424A |
| Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) (2004) 144 FCR 1 SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| First Applicant: | SZFUF |
| Second Applicant: | SZHXX |
| Third Applicant: | SZHXY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3795 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 January 2007 |
| Date of Last Submission: | 29 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2007 |
REPRESENTATION
| The Applicant in person. |
| Counsel for the Respondents: | Ms. Clegg |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3795 of 2005
| SZFUF, SZHXX & SZHXY |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 21 April 2006, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 1 December 2005 which affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 16 June 2004 refusing the applicants’ application for protection visas.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicants’ names.
Background facts
The applicants are husband, wife and daughter.
Because the second and third applicants (wife and daughter) rely on the refugee claims of the first applicant, for convenience, the first applicant will be referred to as “the applicant”.
The Tribunal described the applicant as follows:
The Applicant is 32 years of age, married with one daughter aged 8 years. In his Protection Visa he listed his occupation as Agricultural Engineer and his wife’s occupation as Accountant. He previously worked in South Africa as an Agricultural Technician from 1998 until 2004. During that time he made a number of return visits to the People’s Republic of China. He left South Africa on 4 March 2004. He returned briefly to China with his wife and daughter. They departed China on 12 March 2004 and arrived in Sydney on 13 March 2004. (Court Book (“CB”) page 126)
The applicant claims to have been persecuted and to fear future persecution in China because he is a Falun Gong practitioner.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 - 10 of the Tribunal’s decision (CB 125 - 131). Relevantly, they are in summary:
a)In early 1995, the applicant began to practise Falun Gong with the aim of curing chronic lower back pain.
b)His pain subsided in a few months. As such, the applicant continued to practise Falun Gong exercises on a daily basis.
c)The applicant first experienced difficulties with Chinese authorities when he returned to China from South Africa around August/September 1999. The local Public Security Bureau had been looking for him and went to his home to question him about his distribution of Falun Gong leaflets in South Africa.
d)Despite this, the applicant apparently experienced no difficulties leaving China to travel back to South Africa in 2001.
e)The applicant returned to China again in February 2003 with overseas information about Falun Gong and China to give to his friends.
f)In March 2003 the Public Security Bureau Chief and other police officers went to the applicant’s home to ask him if he was in China to publicise Falun Gong. They found newspaper articles on Falun Gong which they said were anti-government materials and were banned in China.
g)The applicant was warned by police and asked to write a letter guaranteeing that he would stop practising Falun Gong.
h)In April 2003 the applicant was again harassed by police. He had to attend the local police station to explain why he was still practising Falun Gong. He was forced to write a letter guaranteeing that he would stop practising Falun Gong. The applicant was released and allowed to return to South Africa because he contacted a friend who had good relations with the local police chief.
i)The applicant returned to China for the last time in March 2004. His house was searched by police on 5 March 2004. They found copies of a South African newspaper which reported on Falun Gong activities. Once again the applicant was asked to write a guarantee letter.
j)
On 10 March 2004 the applicant was informed that personnel from the Municipal Public Security Bureau (PSB) were planning to arrest him. He travelled to Australia with his family on
12 March 2004.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and his wife and daughter in the evidence before it, the Tribunal found that it was not satisfied that the applicant and his wife and daughter are persons 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 which are paraphrased in the first respondent’s outline of submissions as follows:
12.The Tribunal’s decision rejecting the applicant’s claim to be a refugee turned largely on credit. The Tribunal found that the applicant was not credible on key aspects of his claims and provided a number of examples including:
· the applicant claimed that the police were looking for him in 1999, yet he returned to China in 2001, only to depart for South Africa in November 2001. The Tribunal concluded that if the applicant had been of adverse interest to authorities then he would have been detained by authorities and would have had difficulty departing China at that time;
· the applicant claimed that in March 2003 he was again questioned by the PSB and that the police had found Falun Gong material in his house. The Tribunal did not accept that the authorities would not have dealt with the applicant more harshly if that had been the case [the applicant was not arrested or charged];
· the applicant claimed that once again in April 2003 the police came to his home and that he admitted he was practising Falun Gong, and that he went to the police station to explain why he was practising. The Tribunal did not accept that the police would have been so lenient and that he would only have been forced to write a guarantee letter promising he would not practise again;
· the Tribunal was not satisfied that the police had visited the applicant’s house on 5 March 2004, nor that they had found further Falun Gong promotional material. The Tribunal formed the view the applicant would have been arrested and detained had that been the case. The Tribunal did not accept that the applicant was informed on 10 March 2004 that the PSB planned to arrest him and did not accept that the applicant could have departed China as he did if he had been of adverse interest to the authorities.
13.The Tribunal did not believe the applicant was a Falun Gong practitioner or that he had been practising Falun Gong since 1995. The Tribunal was supported in that conclusion by the applicant’s lack of knowledge about Falun Gong, concluding that the knowledge he had was superficial.
14.The Tribunal also paid significant regard to the fact that the applicant had travelled in and out of China on 3 separate occasions since 2001, which suggested that the applicant was not of interest to authorities. The Tribunal considered unpersuasive the applicant’s explanation that he did not have any difficulty leaving China on 10 March 2004 because he was not wanted until after he had left. [footnotes omitted]
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the applicant was denied natural justice by not taking into account relevant matters;
b)the Tribunal did not take into account all relevant evidence;
c)the Tribunal breached s.424A of the Act by failing to serve independent country information on the applicant;
d)the applicant was not given a proper hearing because of translation problems; and
e)the Tribunal relied on independent country information which was too old.
Dealing with each of these grounds in turn:
The applicant was denied natural justice.
Section 422B of the Act provides that ss.422B – 429A inclusive are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with which concern reviews conducted by the Tribunal.
Dealing with equivalent provisions relating to the granting of visas to non-citizens, the Full Court of the Federal Court said in Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214 at 225-226 [66] – [68]:
What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
Other aspects of the common law of natural justice, such as the bias rule are not excluded: see VXDC at [27].
The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.
On the same day in SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 an identically constituted Full Court of the Federal Court adopted what was said in Lat in the context of s.422B.
Section 424(1) provides that the Tribunal must have regard to such relevant information as it gets. The Tribunal’s decision indicates that it had regard to the Department’s file, the material referred to in the delegate’s decision, other material such as independent country information and the evidence given to the Tribunal by the applicant. The applicant has not identified what, if any, relevant evidence was before the Tribunal and of which the Tribunal did not take regard.
To the extent that this ground of appeal was particularised as a failure by the Tribunal to have considered the possibility that the applicant would face persecution and serious harm upon return to China because he was a Falun Gong practitioner (i.e. the “context in which the applicant will face persecution”), this ground cannot be made out. This is because the very essence of the Tribunal’s decision is a consideration of whether the applicant had a well-founded fear of persecution in China by reason of him being a Falun Gong practitioner. Therefore, on the facts, the claim as made by the applicant in this respect fails.
The Tribunal did not take into account all relevant evidence.
The statutory requirements relevant to this ground are dealt with in paragraph 14 above and, again, the applicant has not identified what evidence favourable to him was not considered by the Tribunal. It is difficult to see what such evidence would be given that a review of the Tribunal’s decision indicates that the statement annexed to the applicant’s protection visa application form is largely reproduced at
CB 126 to 127 and the applicant’s evidence to the Tribunal, in which he advances his claim, is also reproduced at CB 127 to 131.
Although the Tribunal must conduct a review because that is central to the exercise of the powers conferred by s.415, the mere fact that the Tribunal has not referred to every piece of evidence before it does not indicate that it has fallen into error. As the Full Court of the Federal Court said in 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 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. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
Perhaps what this asserted ground of review is really seeking is a review of the Tribunal’s fact-finding. But such a review is not available in judicial review proceedings in this Court. As the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.
For the above reasons, this ground is not made out.
The Tribunal breached s.424A by failing to serve independent country information.
Section 424A of the Act provides:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2) …
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
Country information falls within the exception to s.424A(1) found in s.424A(3)(a): SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 per Gyles J. Consequently, the fact that the Tribunal did not supply to the applicant the country information upon which it relied in affirming the decision of the delegate does not amount to a breach of s.424A. This ground is not made out.
The applicant was not given a proper hearing because of translation problems.
The applicant submits that at the Tribunal hearing the Tribunal ignored the fact that it was difficult for the interpreter to understand and interpret special Falun Gong terms. But there is no evidence before the Court that the translation or interpretation of the applicant’s oral evidence to the Tribunal was inadequate or defective.
At CB 131.3 the Tribunal makes reference to some translation difficulties concerning the applicant’s wanted status in China. It appears from the decision of the Tribunal that this matter was clarified during the course of the hearing. The Tribunal’s decision does not suggest that there was any other translation problem at the hearing. Further, the Tribunal’s decision records the following:
I informed the applicant and his advisor that should they wished to raise any other matters after listening to the hearing tapes, they were required to provide submissions in writing by close of business on 9 September 2005. No further material was received by the Tribunal. (CB 131)
In order to demonstrate the translation was defective or inadequate, it was necessary for the applicant to put before the Court a transcript of the Tribunal proceedings together with evidence dealing with the alleged inadequacies in the translation. As already noted, no such evidence was before the Court.
Consequently, this ground of review is not made out.
The Tribunal relied on independent country information which was too old.
This ground can be dissected into two potential points. The first is that the Tribunal should have relied on other, newer information and, secondly, such information as it did rely on was out of date and thus wrong. As to the first point, the Tribunal has no duty to make enquiries or, in the context of this argument, to seek out different country information: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12.
As to the second point regarding country information said to be stale, as the Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. 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.
As a result, no jurisdictional error on the part of the Tribunal is demonstrated by its reliance on the independent country information referred to in its decision.
Conclusion
For the above reasons, the applicant has not demonstrated jurisdictional error on the part of the Tribunal.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 13 February 2007
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