SZGWQ v Minister for Immigration

[2007] FMCA 2135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGWQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2135

MIGRATION – Review of RRT decision – whether Tribunal required to provide draft reasons under s.424A Migration Act 1958 – whether failure to comply with s.425 – whether apprehended bias.

Migration Act 1958, ss.424A, 425

SZBYR v Ministerfor Immigration [2007] HCA 26
VAF v Ministerfor Immigration [2004] FCAFC 123
Applicant A165/2003 v Minister for Immigration [2004] FCA 877

Applicant: SZGWQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3300 of 2006

Judgment of: Raphael FM

Hearing date: 20 December 2007

Date of last submission: 20 December 2007

Delivered at: Sydney

Delivered on: 20 December 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. The applicant to pay the first respondent’s costs assessed in the sum of $4500.00.

3. The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3300 of 2006

SZGWQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 11 March 2004. On 18 March 2004 she applied to the Department of Immigration & Multicultural Affairs for a protection (class XA) visa. That application was refused by a delegate of the Minister on 25 March 2004. The applicant sought review of the delegate's decision, which was given by the Refugee Review Tribunal. The Tribunal affirmed the delegate's decision but that affirmation was set aside by the Federal Magistrates Court. The applicant's case was remitted to the Tribunal to be heard again, and the delegate's decision was reaffirmed on 8 June 2005. The applicant again sought judicial review and was again successful and the matter was remitted to a third Tribunal.

2. The applicant was represented by a migration agent. A number of efforts were made to arrange a hearing date. The applicant provided medical certificates concerning her condition and the hearing was rescheduled. On 21 July 2006 a letter was written to the applicant pursuant to s.424A of the Migration Act1958 (“the Act”) and it was responded to, via the migration agent, by way of a statutory declaration from the applicant [CB103].

3. The applicant had not attended the original scheduled hearing on 19 June 2006. On 9 August 2006 the Tribunal wrote to the agent advising the agent that it considered that the obligations which it had under s.425 of the Act had been discharged [CB105]:

   “[T]he purpose of another hearing would be to enable the applicant to put any further relevant information regarding her claims to the Tribunal in person if she wished. However such information could also be put to the Tribunal in writing rather than requiring the applicant to attend a further hearing.  In view of her circumstances this may be the preferable course of action.”

4. The letter was responded to by the agent on 24 August 2006 [CB107]:

   “The applicant wish (sic) the Tribunal could kindly arrange a hearing for her, and she would like to give her oral evidence in support of her application and present her argument against the issues arising from the review.”

   There was an additional statutory declaration attached to this response which added the words "considering my current health situation". Eventually, on 20 September 2006, a hearing was arranged and took place. On 28 September 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 10 October 2006.

5. The applicant's grounds for claiming that she was a person to whom Australia owed protection obligations arose out of her association and adherence to the Falun Gong movement in China. She told the second Tribunal by way of a statement dated 16 May 2005 that she had taken up Falun Gong practice in May 1999 for her health.  She escaped initial persecution after the movement was banned in 1999 but when she continued the practice with some other practitioners in her town she was caught up in a police raid in September 2003.

6. She claims that she was detained with female criminals and beaten. She said that she became so ill that the police were afraid she might die, so she was released. She was given assistance by persons sympathetic to her, which included the provision of a job in a factory some 1000 kilometres away from her home. Through these associates she was able to obtain a passport and leave the country through Shanghai. The applicant told the third Tribunal that she was being watched over by the PSB in her home town and as a result the fashion business which she owned suffered, which was why it was necessary for her to take a job so far away.

7. At the hearing before the third Tribunal the member concentrated on questioning the applicant about what happened when she arrived in Australia, and then about her knowledge of the Falun Gong movement [CB134]:

   “I then asked her whether she was familiar with the Falun Gong exercises.  She told me that she was not familiar with the exercises because she had been sick.  She claimed that before Falun Gong was banned in China there were many teaching groups, but she did not go to those groups because she had been sick.  She visited many doctors and a school friend suggested that she practice Falun Gong to improve her health.  I again asked her how she understood that Falun Gong would improve her health.  She claimed that if she practiced with other practitioners she would get the benefit of magnetic fields which existed around those practitioners.”

8. In its findings and reasons the third Tribunal accepted that the applicant had grown up in the town stated and that she had run her own clothing business until October 2003 when she found work in the factory.  But it did not accept that she had left her home to work in the factory because of her involvement in Falun Gong [CB135]:

   “I do not accept that the applicant practiced Falun Gong in China or practiced Falun Gong in Australia.  In the information given to the Tribunal the applicant claimed to be a firm Falun Gong practitioner, to have taken up Falun Gong practice in May 1999, and practiced with other practitioners in China until she was arrested in September 2003.  At the hearing before me the applicant admitted that she was not familiar with Falun Gong exercises, she could only demonstrate the most superficial knowledge of the guiding principles of Falun Gong and stated that she had not been involved in Falun Gong practice in Australia other than occasional practice at home.  As the applicant had previously claimed to the Tribunal that she had practiced Falun Gong for a lengthy period in China, I found her evidence at the hearing before me to be entirely inconsistent with her previous claims.  Her lack of knowledge and her admission that she is not familiar with the exercises leads me to the conclusion that her claim that she is a Falun Gong practitioner has been fabricated for the purposes of strengthening her claims for refugee status.”

9. The Tribunal went on to indicate that it did not accept the applicant's story about being arrested and beaten and noted that she had managed to leave China on a legally obtained passport without any difficulties [CB135]:

   “If the local police had been monitoring her to the extent that she claimed I do not accept that they would have approved her application for a passport or that they would not have taken action to restrict her departure from China.”

10. In her amended application filed in this Court on 19 April 2007 the applicant makes a number of claims. The first point she makes is that the Tribunal misunderstood her evidence concerning her ability to undertake and her understanding of Falun Gong exercises. She says that it was because of her health difficulties that she was unable to satisfy the Tribunal on these points. She raised these matters today in oral submissions but has never produced a transcript or provided any real particulars of the manner in which the misunderstanding occurred. A reading of the Tribunal's decision does not assist her because it appears to indicate a clear reasoning why she lacked the familiarity that she had earlier claimed. In these circumstances I am unable to be satisfied that a jurisdictional error occurred in regard to this aspect of the matter.

11. The second ground of the application relates to s.424A of the Act. What I gathered from the applicant's statement to me was that she complained that the Tribunal had not explained to her the reasons why it intended not to grant her the visa, or put another way, the reasons why it did not accept her evidence as leading to the degree of satisfaction necessary for the grant of the visa. This is a familiar complaint from applicants who come from civil law countries where there is much more of a tradition of providing draft reasons for decisions in administrative matters. But it is not a requirement in this country as the High Court has explained in SZBYR v Ministerfor Immigration [2007] HCA 26 which case followed and approved the earlier case of VAF v Ministerfor Immigration [2004] FCAFC 123.

12. The third ground of the application indicated that the Tribunal failed to comply with its obligations under s.425 of the Act. In her oral submissions the applicant indicated that she had been forced to attend the hearing by the Tribunal, that the Tribunal knew she was sick, and that she was not given an opportunity to provide meaningful evidence. The facts belie this. I have already made reference to the manner in which the Tribunal dealt with the applicant's health problems. It made every effort to accommodate her and it was the applicant herself who requested the hearing. While some medical evidence had been provided earlier, there was no contemporaneous medical evidence about the applicant's condition when the hearing took place on 20 September 2006. The applicant did not write to the Tribunal thereafter informing it that she did not consider that she had had a proper opportunity to explain herself. And there is no evidence before me, contemporaneous or otherwise, that would indicate that as at 20 September 2006 she was not a person who could have properly represented herself at the type of hearing conducted by the Tribunal on that day. I reject this ground.

13. Finally the applicant complains of an apprehension of bias. She gives two grounds for this. The first again relates to her health and the Tribunal's alleged failure to consider that properly and fairly; the response to which is no different in respect of this claim than it is in respect of the claim under s.425. The second matter is that the Tribunal knew that she had already had two successful applications for review and this somehow influenced its decision. This is an allegation easily made, but there is no evidence for it, and a reading of the Tribunal's decision and in particular of its correspondence with the applicant through her migration agent seems to me to reveal the Tribunal bending over backwards to provide the applicant with fair treatment.

14. I am quite satisfied that a reasonable bystander (or fair minded lay observer) would not reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question which he or she is required to decide: Applicant A165/2003 v Minister for Immigration [2004] FCA 877 at [65]. I dismiss this application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  21 December 2007