SZGTS v Minister for Immigration
[2006] FMCA 1022
•25 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1022 |
| MIGRATION – Review of decision by Refugee Review Tribunal – allegation of breach of natural justice – allegation of failure by Tribunal to consider applicant’s evidence – allegation of failure by Tribunal to take into account relevant considerations. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A(1); 424A(3)(b); 474; div.2 pt.8; div.4 pt.7 |
| Applicant: | SZGTS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1863 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 17 July 2006 |
| Date of last submission: | 17 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2006 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Ms R M Henderson |
| Solicitors for the Respondent: | Mr B Cramer, Blake Dawson Waldron |
ORDERS
That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1863 of 2005
| SZGTS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and div.2 pt.8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 May 2005. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 10 February 2005. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant is a 21 year old female who claims to be a citizen of the People’s Republic of China (“the PRC”) and of Chinese ethnicity (“the Applicant”).
The Applicant arrived in Australia on 8 August 2004, having departed from Hong Kong on a Taiwanese passport issued in a false name.
On 15 November 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by authorities because she is a Falun Gong practitioner. Before the Tribunal, the Applicant maintained those claims.
On 10 February 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Convention.
On 15 March 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 24 May 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
The Applicant attended a hearing before the Tribunal on 20 May 2005 and gave oral evidence. The hearing was conducted with the assistance of a Mandarin interpreter. The Tribunal accepted that the Applicant is a national of the PRC.
The Tribunal had before it the Department file. The Applicant’s protection visa application was supported by a statement written by the Applicant dated 8 November 2004. That statement asserted that the Applicant came to Australia by using a false Taiwan passport and that she had left China because it was no longer a safe country for her because she is a Falun Gong practitioner.
The Applicant claimed that, if she returned to China, she would face persecution from the authorities because of her practice of Falun Gong. The Tribunal did not find the Applicant a creditable witness and formed the view that “the applicant fabricated her claims in an effort to create for herself the profile of a refugee.” The Tribunal noted that, in making this finding, it had not taken into account any inconsistencies between information contained in the protection visa application and the Applicant’s evidence during the hearing.
Moreover, at the hearing the Tribunal noted that the Applicant stated that information contained in her statement was prepared by her Migration Agent and was not correct. The Tribunal noted that it asked the Applicant if she wished the Tribunal to take what she said during the hearing as her evidence rather than what was written in her protection visa application and noted that the Applicant confirmed that she wished the Tribunal to take that course.
The Tribunal had regard to the Applicant’s claim that she worked as a kindergarten teacher from July 2003 until April 2004, when she was dismissed for teaching children of about 4 years of age about Falun Gong. The Tribunal noted that the Applicant stated that she would take the children out of the kindergarten to public gardens where she would teach them Falun Gong. The Tribunal noted that it put to the Applicant the difficulty it had in accepting that the Applicant would take children to a public park to teach them Falun Gong and noted the Applicant’s response that she did so when other teachers were not around.
The Tribunal noted that the Applicant stated that, if she were to return to China, the police would be waiting for her at the airport because of her Falun Gong practices and she would be persecuted and harmed physically and mentally.
The Tribunal noted that it asked the Applicant about her Falun Gong practice in the last two years she was in China and formed the impression from her answers that they “sounded rather rehearsed.”
The Tribunal noted that it asked the Applicant questions about her Falun Gong practice in Australia, including the fact that she had not commenced her Falun Gong practice in Australia until 4 or 5 months after her arrival. The Tribunal noted the Applicant’s response in respect of her delay in commencing her Falun Gong practice in Australia was because of language problems and a fear of being deported. The Tribunal did not consider this explanation “satisfactory” and found it “implausible” if she was so concerned that she would not have sought advice about the consequences of practising Falun Gong in Australia.
The Tribunal also noted that the Applicant’s evidence in relation to the Falun Gong practice site at Parramatta was not consistent with independent information before the Tribunal and that, if the Applicant had attended the Parramatta site regularly, she would have been able to provide more accurate information.
The Tribunal found “highly implausible” the Applicant’s claims of having taught Falun Gong to kindergarten children in public gardens. The Tribunal found it “implausible” that if the Applicant had already faced mistreatment as a Falun Gong practitioner she would have continued to attend public practice in China for years after Falun Gong was banned.
The Tribunal noted that in giving her evidence, the Applicant appeared to have been coached in her answers and to have learnt much information about Falun Gong by rote.
The Tribunal sought access to notes the Applicant had at the hearing and noted that some of the notes appeared to be a transcript of another hearing or “a synthesis of questions and answers prepared by someone with knowledge of the kinds of questions asked in a Tribunal hearing”. The Tribunal concluded that the Applicant was not speaking from actual experience but from something she had memorised. The Tribunal noted in this conclusion that applicants are given tape recordings of the hearings upon request and that it would not be difficult to transcribe a hearing for preparation in respect of another hearing, “if motivated to do so.” The Tribunal noted that it put such concerns to the Applicant who responded by reiterating her claims.
The Tribunal did not accept that the Applicant was a Falun Gong practitioner in China, or that she had developed any genuine commitment to Falun Gong in Australia. Because the Tribunal did not accept that the Applicant practised Falun Gong in China, the Tribunal did not accept that she suffered harm for that reason. Because the Tribunal did not accept that the Applicant had a genuine commitment to the practice of Falun Gong since arriving in Australia, the Tribunal found that the chance that the Applicant would practise Falun Gong if she returned to China was remote.
The Tribunal concluded that it was not satisfied that the Applicant has a well founded fear for a Convention reason and is therefore not a person to whom Australia has protection obligations under the Convention.
The hearing before this court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant also had access to the panel advice scheme.
On 21 October 2005 the Applicant filed an Amended Application (“the Amended Application”) seeking relief on the following grounds:
“1.
A. I am a citizen of china who claim to have a well-founded fear of persecution for reason of my FA-Lun Gong practitioner in Australia under the Refugee Convention as amended by the Refugee protocol.
B. The Tribunal failed to consideration the Applicant’s provide the evidence of claims member of FA-Lun Gong in china fear of persecution for Refugee Convention as amended by the Refugee procotol (sic). The Tribunal member reject the Applicant as a refugee.
C. The Tribunal failed to take relevant into account for consideration exercising power It is power to determine Applicant As a refugee.”
At the outset of the hearing the Applicant asserted that her material was “confiscated” by the Tribunal. The Applicant then confirmed that her complaint was that the material she had provided to the Tribunal, upon request, was not returned to her, nor were copies. She confirmed that the documents were notes of information copied from a book about Falun Gong and referred to by the Tribunal in its decision. The Tribunal noted that it had the interpreter interpret several pages from the Applicant’s notes and noted that they were in a question answer format and consisted of questions either the same as or very similar to questions that the Tribunal had asked the Applicant during the hearing. The Tribunal noted that the answers provided by the Applicant to those questions were virtually identical to the written answers. The Tribunal noted that the Applicant stated she had written out the notes because she was having difficulty with her memory since being in detention and was nervous.
The Applicant also contended before this Court that, at the Tribunal hearing, she could not hear clearly what she was being asked or what she was answering because she was in a confused state and “a bit train sick”. She stated that during the hearing the interpreter made mistakes and that she didn’t have a lawyer. The Applicant made these assertions after Counsel for the First Respondent had made her oral submissions to this Court. They were not matters arising from any submissions made by the First Respondent. The Applicant had been given every opportunity at the commencement of the hearing to make whatever further submissions she wished in support of her application. She did so.
In respect of the claims made in reply, I pointed out to her this was the first time any such assertions had been made in respect of any mistake by the interpreter. I explained to her that such an allegation would require evidence, of which she had none. I reminded her that in fact she had participated in the panel advice scheme and met with a solicitor. She responded that he was not interested in her case and she had no other legal advice. I explained to her that she had been directed to file any further evidence in respect of her application on 9 August 2005 and had filed an Amended Application in accordance with those directions in which no such allegation was made. I said to the Applicant that there had been ample time to provide to this Court any evidence in support of any such contention and in the absence of any evidence such a ground was not made out.
In relation to her claim that she could not hear clearly what she was being asked and what she was answering, the Tribunal in fact noted that she was stressed and nervous. However, her answers as noted by the Tribunal appeared to be responsive and coherent.
There is no evidence before me to suggest that the notations of the Tribunal in its decision of its exchanges with the Applicant were in any way inaccurately recorded by the Tribunal.
Further, it would appear that the Tribunal was aware of the Applicant’s nervous state and there is no reason to assume that was not taken into account, particularly where the Tribunal identified the difficulty of which it was aware.
I now turn to the Applicant’s Amended Application.
Ground A – “I am a citizen of china who claim to have a well-founded fear of persecution for reason of my FA-Lun Gong practitioner in Australia under the Refugee Convention as amended by the Refugee protocol.”
Ground A is more in the nature of a disagreement with the conclusion of the Tribunal that the Applicant did not have a well founded fear of persecution for a Convention related reason. There is no other reviewable error disclosed by ground A.
Ground B – “The Tribunal failed to consideration the Applicant’s provide the evidence of claims member of FA-Lun Gong in china fear of persecution for Refugee Convention as amended by the Refugee procotol (sic). The Tribunal member reject the Applicant as a refugee.”
and Ground C – “The Tribunal failed to take relevant into account for consideration exercising power It is power to determine Applicant As a refugee.”
Grounds B and C appear to be allegations that the Tribunal failed to consider the Applicant’s claims or take into account relevant information. Grounds B and C are otherwise unparticularised.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims made by the Applicant. The Tribunal raised with the Applicant the fact that her oral evidence was at odds with her written statement and noted that the Applicant requested that the Tribunal have regard only to her oral claims. The Tribunal did so and noted that it did not take into account any such inconsistency in its conclusions. In the circumstances, any such inconsistency was not information which was the reason or part of the reason for the Tribunal affirming the decision under review.
Further, the Tribunal was concerned by the fact that the Applicant had brought notes with her to the hearing, that she claimed were prepared by her and which disclosed the questions likely to be asked by the Tribunal and answers that appeared to have been memorised by the Applicant. The Tribunal noted that it put to the Applicant it had real difficulty believing that her claims were true and that it appeared to the Tribunal that her notes were a result of someone making a transcript of a Tribunal hearing involving a Falun Gong claim. The Tribunal noted that the Applicant reiterated that her claims were true.
In the circumstances, the Tribunal was entitled to consider that the notes provided by the Applicant to the Tribunal, albeit at the Tribunal’s request, were given by the Applicant to the Tribunal for the purposes of her review application. Such information is excluded from the requirements of s.424A(1) of the Act, pursuant to s.424A(3)(b).
The Tribunal concluded that it did not find the Applicant to be a credible witness and set out five reasons for such a conclusion. All five reasons had regard to the Applicant’s responses to questions asked by the Tribunal arising out of the Applicant’s claims. The first reason related to the Tribunal’s concerns about the Applicant’s 4-5 month delay in commencing Falun Gong in Australia. The second reason related to the Applicant’s inconsistent evidence about Falun Gong practice at Parramatta with independent information before the Tribunal. The third reason related to the Tribunal’s concerns about the Applicant’s claim of Falun Gong practice in China. The fourth reason related to the Tribunal’s concerns about the Applicant’s evidence that she practised Falun Gong in public places in the PRC, if she had been mistreated in the past for her Falun Gong practice. The fifth reason was the Tribunal’s concerns about the form and content of the notes brought by the Applicant to the hearing.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal did consider the Applicant’s claims and explained its concerns about those claims to the Applicant.
The Applicant has not identified what relevant information the Tribunal failed to take into account and it is not apparent from the Tribunal decision that there was any relevant evidence that it failed to properly consider. The Tribunal provided reasons for its findings and conclusions that were otherwise open to it on the evidence and materials before it.
Accordingly grounds B and C are not made out.
Other claims
In the Applicant’s outline of submissions the Applicant raised a further ground that “There was procedural error in the Tribunal decision constituting are (sic) absence of the natural justice.” However, no particulars were provided in support of this ground. Section 422B of the Act was in force at the time and provided that div.4 pt.7 was an exhaustive statement of the natural justice hearing rule. The statutory requirements of div.4 pt.7 were complied with by the Tribunal.
On 19 April 2005, pursuant to s.425 of the Act, the Tribunal wrote to the Applicant inviting her to attend a hearing on 11 May 2005 and informing her that she should send any new documents or written arguments that she wished the Tribunal to consider. The letter informed her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The Tribunal invited her to give oral evidence and present arguments in support of her claims. The letter also notified the Applicant that she could ask the Tribunal to obtain oral evidence from other persons on her behalf.
No other procedural error is particularised and none is apparent from the Tribunal’s decision or the conduct of its review.
Accordingly this ground is not made out.
The Applicant also stated in her written outline of submissions that:
“Regarding to other issues raised from the Tribunal’s decision, It is obviously ill-founded without any substantial evidences excepting its erroneous findings based. Its poor knowledge and understanding about member of FaLun-Gong practitioner in china they were persecution and mistreated by chinese authority.”
Again this claim contains no particulars and does not disclose a reviewable error.
A further ground raised in the Applicant’s outline of written submissions is set out as follows:
“Tribunal member didn’t accept the Applicant had been a genuine Falun Gong practitional (sic) in china and had faced persecution for this reason. The second respondent have not considered the evidence which is not in favour of the Applicant. The Applicant would continues practise the Falun Gong in the public of Australia It will face persection (sic) and mistreated (sic) If I return to China. After the hearing the Applicant haven’t got opportunity to provide the more evidence to the Tribunal member to reconsider the matter about protection visa. The member just rely on question the Applicant knowledge about Falun Gong make a such conclusion and decision not to grant a protection visa.”
To the extent that the Applicant appears to be complaining that she was not given an opportunity to provide any further evidence after the Tribunal hearing, there is nothing in the Tribunal’s decision to suggest that the Applicant requested an opportunity to provide any further material and that such an opportunity was refused. Nor has the Applicant identified to this Court or put on any evidence as to the nature or content of any further material that she would have wished to provide to the Tribunal and why she was unable to do so at the Tribunal hearing.
Accordingly this ground is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The application is dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S.Kwong
Date: 25 July 2006
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