SZFUG v Minister for Immigration
[2007] FMCA 830
•15 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFUG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 830 |
| MIGRATION – Bias – must show Tribunal acted dishonestly, arbitrarily or capriciously – whether impartial mind brought to the resolution of the matter – credibility finding of fact. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 476, 474 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZFUG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3806 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 15 May 2007 |
| Date of Last Submission: | 15 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitor for the Respondents: | Mr Young of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3806 of 2006
| SZFUG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 19 December 2006 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
No amended application has been filed.
The applicant was born on 21 October 1960 and is a citizen of China (“the Applicant”).
The applicant is married with one son. His wife and son remain in China (CB 83).
The applicant arrived in Australia on 29 August 2004 on a visitor’s visa issued in Shanghai.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 3 September 2004. In this application he claimed a fear of persecution because he was a practitioner of Falun Gong. The applicant claimed that like many practitioners of Falun Gong, he was called to the police station to confess his “misdeeds” in learning and practising and spreading Falun Gong. The applicant refused to admit that he had committed “misdeeds” and one month later he was forced to attend re-educational courses for Falun Gong practitioners. The applicant claimed he was treated badly physically and spiritually. He was forced to confess that the aim of people practicing Falun Gong was to subvert the government and to conduct illegal religious activities (CB 26-27).
This application was refused by a delegate of the first respondent on 13 September 2004 (CB 31).
On 13 October 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 37). On 15 November 2004 the Tribunal wrote to the applicant inviting him to a hearing to be held on 5 January 2005 to give oral evidence and present arguments. No response was received and the applicant did not attend the hearing (CB 183). The Tribunal proceeded to make a decision on the case and affirmed the decision of the Minster’s delegate not to grant the applicant a protection visa (CB 183).
The applicant applied for judicial review of the decision by this Court. On 20 April 2006 orders were issued by Federal Magistrate Scarlett quashing the decision of the second respondent made on 5 January 2005 and ordering the second respondent to review according to law the decision made on 13 September 2004 to refuse to grant a protection visa to the applicant (CB 160).
On 4 August 2006 the Tribunal wrote to the applicant inviting him to a hearing to be held on 13 September 2006 to give oral evidence and present arguments in support of his claims (CB 167).
The applicant gave oral evidence before the Tribunal on 13 September 2006, at which time he maintained the claims made in his original protection visa application.
On 25 October 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 186–189) (emphasis added):
The Tribunal accepts that the applicant has PRC nationality, and assesses his claims against that country.
Essentially, the applicant claims to fear persecution for reason of his association, actual and imputed, with Falun Gong. The local authorities forced him to confess, and imposed various restrictions on him. He has violated these restrictions as a result of his prolonged stay in Australia, and fears detection and punishment if he now returns to China.
The Tribunal is required to determine if the applicant has a well-founded fear of persecution and, if so, whether such a fear is for one or more of the Convention grounds.
When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility. When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. That said, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).
In his protection visa application, the applicant claims to fear persecution as a Falun Gong practitioner. He states, for instance, ‘I began to study and practice Falungong’ and refers to his situation as being ‘like many other practitioners’. The Tribunal does not accept this claim, for the reasons that follow. At hearing, the applicant’s knowledge of and experience with Falun Gong were negligible. The Tribunal had difficulty eliciting any meaningful information from the applicant beyond the basic Falun Gong precept ‘truth, compassion and forbearance’, a phrase that he appeared to have learned and to be keen to voice. He mentioned, vaguely, having seen a book that contained pictures of Falun Gong exercises, although he did not know its name and had not read any Falun Gong texts. He also conceded that he did not practice Falun Gong in public or private, in either China or Australia. The closest activity he referred to was occasional mediation for relaxation, with no manifest link with Falun Gong practices or teachings.
The applicant’s reasons for this inactivity were entirely unconvincing. He said that he was usually too busy with work and social activities and that, in Australia, he had also heard of Chinese spies monitoring Falun Gong activities. These reasons do not satisfy the Tribunal as to why a genuine Falun Gong practitioner - at least in Australia - would fail to explore or take the opportunity to perform any kind of practice, to obtain further information or to establish contact with fellow practitioners. The applicant’s near-complete lack of familiarity, interest, activity and commitment lead the Tribunal to conclude that he is not and never has been a Falun Gong practitioner.
At hearing, the applicant emphasised a related but distinct basis for the feared persecution, namely his role in spreading Falun Gong. This arose, he claimed, after he introduced work colleagues to Falun Gong in 1998 and one of them, when arrested by the local PSB in mid-1999, identified the applicant as the person who had promoted it. The Tribunal does not accept this claim either. First, as noted above, the applicant’s knowledge of and commitment to Falun Gong are so scant that it is implausible that he has ever been able to discuss or demonstrate it, let alone that he was motivated to ‘introduce’ others to it. Second, as explained in the Tribunal’s letter of 13 September 2006 and at hearing, this claim is at odds with the applicant’s focus in his protection visa application on his fears as an actual practitioner. Even though the applicant made passing reference in his written statement to his friends ‘show[ing] an interest in learning [Falun Gong]’ and to the PSB accusing him of not only ‘learning and practicing’ it, but also spreading it, this was very much a secondary issue. In the Tribunal’s opinion, the applicant has tried to recast the basis for his refugee claim from being a Falun Gong practitioner to being a promoter or imputed practitioner. He has done so on the reckoning that a claim of imputed Falun Gong adherence is less susceptible to credibility testing based on his knowledge of or experience in Falun Gong. The Tribunal finds, in any event, that the applicant is neither a Falun Gong practitioner nor a person who will be so perceived.
The applicant’s refugee claims rest critically on his association, actual or imputed, with Falun Gong. The Tribunal’s rejection above of this claim leads it to also reject all claims of consequential past harm, and also to conclude that the applicant is not a witness of truth.
The Tribunal therefore dismisses the claims of past harm set out in the protection visa application, including that the applicant was forced to ‘confess’ and to attend re-education classes, and that he was mistreated by the local authorities. It also dismisses the additional and modified claims of past harm presented at hearing, including that the local PSB required him to report regularly, that his family were monitored and harassed, that he was detained once for 24 hours, and that his family had to move home to avoid unwelcome attention from the PSB.
The Tribunal’s letter of 13 September 2003 raised two further factors that not only reinforce the above finding – that there has been no past harm arising from the now-rejected association with Falun Gong – but also demonstrate that the applicant was not subject to any adverse attention from the authorities and did not have any subjective fear of persecution for any other reason.
First, there is the matter of the applicant’s registered address. Although the applicant said that his family did not actually live at the registered address recorded in the protection visa application, he revealed at hearing that they continued to own and maintain it. This indicates that, if he were wanted by the PSB, there would be ample opportunity for them to find the applicant or, in his absence, his family members, when they called on the property. In these circumstances, it is safe to assume that the applicant’s lack of any such enquiries is a reliable indicator that the authorities are not in fact looking for him.
Second, the applicant’s return to China from his trip to Germany in January 2004, as demonstrated in the photocopied passport attached to the protection visa application, is compelling evidence that he did not fear persecution in China at that time. The applicant said that he left Germany because he found that there were few Chinese people there. This is hardly a credible reason for failing to seek refugee protection if it is required. As for his willingness to return to China, he essentially agreed that he did not fear persecution then - his problems at that time were not ‘life-threatening’. Indeed, he conveyed the impression that the ongoing PSB measures against him were a mere inconvenience, and that his travel to Germany had no real consequences because he had managed to slot it in between his scheduled appointments at the local PSB office.
The applicant went on to contend, however, that the fact of his prolonged stay in Australia – over two years at the time of this decision – now gives rise to a well-founded fear of persecution in China. He relies again on his claimed non-compliance with local PSB reporting requirements. However, for the reasons set out above, the Tribunal does not accept that the applicant has attracted the adverse attention of the PSB, that they have imposed any reporting requirements or other constraints on him, or that he has violated any such rules. It therefore rejects the applicant’s claim to fear persecution for this reason. The applicant did not claim, and there is no material before the Tribunal to suggest, that the mere fact of his two-year stay in Australia gives rise to a real chance of persecution on any other grounds.
The Tribunal has considered the applicant’s claims individually and cumulatively. It does not accept that he has any association at all with Falun Gong; or that he has experienced any consequential harm for that reason, or for any reason at all. The Tribunal does not accept that the applicant’s stay in Australia to date establishes a real chance of persecution in China, and the material before it does not reveal any other relevant factors. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to China. He 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 Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
1)The Refugee Review Tribunal failed to give natural justice.
2)The decision made by Refugee Review Tribunal is illogical and biased.
3)There was no evidence or other material to justify the making of the decision.
No particulars have been provided. The applicant was invited by the Court to put oral submissions in support of his application but declined to do so.
The applicant sought an adjournment to obtain legal advice. The Court is satisfied that a notification was sent to the applicant’s correct address on 15 February 2007 advising him of the contact details of his proposed legal adviser (as provided for under the free legal advice scheme). The Court is satisfied that while the contents of that letter may not have come to the knowledge of the applicant, that was for reasons within the applicant’s control (namely, he refused to check his PO Box). He therefore had an opportunity to seek legal advice. The application for an adjournment was therefore refused.
Findings as to the grounds in the application
Ground one alleges a denial of natural justice. No particulars of this claim have been provided: the claim is meaningless. As s.422B applies, the Court has considered ss.424A and 425. A s.424A letter was sent to the applicant (CB 172) and no particulars are given of any alleged breach. It is for the applicant to establish error and he has failed to do so. The Court finds no breach of s.424A.
A s.425 letter was sent to the applicant (CB 167). The applicant was invited to attend a hearing on 13 September 2006. No breach of s.425 has been established. For the reasons expressed below, no denial of natural justice has been shown and the ground is rejected.
Ground two alleges that the Tribunal was illogical and biased.
“To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously’: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59]”.
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
Nothing has been put to establish bias (actual or a reason for apprehended bias). The Court rejects this claim.
Nothing has been put to show that the Tribunal was illogical. The Tribunal considered the application in an organised manner and rejected the claims for the reasons set out. Ground two is rejected.
Ground three alleges that there was no evidence or other material to justify the making of the decision. The Tribunal set out its findings of fact which were properly open to it on the material before it. The Tribunal did not accept much of the applicant’s evidence and claims. Findings of credibility, which are findings of fact, are properly matters for the Tribunal. As was held in SZHQC v Minister for Immigration and Multicultural Affairs [2006] FMCA 1590,
It is not the function of judicial review by a court to review the findings of fact by the Refugee Review Tribunal, unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”.
In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R D Nicholson JJ stated at paragraph 64:
The tribunal decision turned on the question of credibility. 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. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.”
The Tribunal set out its findings and the reasons for them. No error has been shown. Ground three is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 31 May 2007
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