SZGYE v Minister for Immigration
[2007] FMCA 54
•18 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGYE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 54 |
| MIGRATION – Review of RRT decision − where applicant claimed persecution on the Convention grounds of political opinion and religious beliefs − where applicant conceded he no longer faced persecution for the Convention of political opinion − where Tribunal failed to be satisfied of the applicant’s claims on the ground of religious belief under s.65 Migration Act − whether conclusions drawn from the evidence need to be discussed with the applicant − whether the reasoning of the Tribunal evidences ostensible bias − whether the Tribunal considered every integer of the applicant’s claims. |
| Migration Act 1958, ss.65, 422B, 424A |
| Ex parte S154/2002 (2003) 201 ALR 437 Applicant A165 of 2003 v Minister for Immigration (2004) FCA 877 SCAA v Minister for Immigration (2002) FCA 668 |
| Applicant: | SZGYE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2141 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 January 2007 |
| Date of Last Submission: | 18 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2007 |
REPRESENTATION
Applicant in Person
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Application dismissed.
The applicant shall pay the first respondent’s costs assessed in the sum of $5000 pursuant to Part 21 Rule 21.02(2)(a) Federal Magistrates Court Rules 2001.
Name of the first Respondent be amended so that the words “and Indigenous” are removed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2141 of 2005
| SZGYE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 27 November 2004. On 22 December 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 7 February 2005 a delegate of the Minister refused to grant a protection visa and on 14 March 2005 the applicant applied for a review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 7 May 2005. On 29 June 2005 the Tribunal determined to affirm the decision not to grant a protection visa, which it handed down on 19 July 2005.
There were two bases upon which the applicant claimed that he had a well-founded fear of persecution for the Convention reasons of political opinion and religion/membership of a particular social group. The first ground related to the position of the applicant during and after the pro-democracy movement which briefly flourished in China around 1989. The applicant claimed that he had supported the pro-democracy movement and had given money to it in the spring of 1989 and that he had also joined demonstrations. The applicant claimed that when these demonstrations resulted in a crackdown, he became scared that the police would arrest him and he left the country on a student visa to Japan, where he studied and worked for some years before returning to China when he had read in the papers that the political situation had improved.
The second basis upon which the applicant made his claims was that he had joined the Falun Gong movement in 1997 and followed the Falun Gong practices until he was arrested and detained for four days in 2004. After that, he ceased his involvement with Falun Gong in public or with other members of the movement, but he said that he continued his exercises in private. He left the country because of his fear that his Falun Gong activities would be disclosed to the Chinese authorities and cause him trouble.
The Tribunal questioned the applicant in some detail on both of these matters. In relation to the activities in 1989, the discussions between the Tribunal and the applicant are found between pages 4 and 7 of the transcript annexed to the affidavit of Mr I.F. Muthalib filed herein. In regard to this evidence, the Tribunal says in its findings and reasons at [CB92]:
“The Tribunal finds that the applicant’s claims about supporting the student movement, they are unsupported and unimpressive. The applicant clearly went to Japan for reasons other than to seek protection. The Tribunal does not accept that the applicant really did support the pro-democracy movement in any significant way or to any significant level. His ease of departure and his voluntary return without subsequent mistreatment or punishment are evidence of his not having had a significant political profile with the PRC authorities. The Tribunal concurs with the applicant’s own summation of these claims, which is that they are no longer relevant. Considered in the context of the applicant’s other claims, the Tribunal does not accept that they are even genuine.”
I accept that the applicant at page 7 of the transcript appears to have conceded that he did not face any real chance of persecution, if he returned to China, as a result of any student activity in 1989. I also accept that the Tribunal would be entitled to take a view about the applicant’s credibility in relation to his responses to questions about Falun Gong and apply those views to the question of whether or not he had a well‑founded fear arising out of the student activity.
I do have some difficulty accepting the statement made by the Tribunal that the applicant clearly went to Japan for reasons other than to seek protection, because my reading of the transcript does not bear out that firm view. Another Tribunal may well have concluded that the applicant utilised his ability to travel abroad to study in order to leave China at a time when persons involved in student activism might well find themselves the object of interest from the security forces. I am unable to find any evidence given by the applicant that would indicate that he clearly went to Japan for reasons other than to seek protection, noting that at page 6 he states:
“Interpreter: Because the Government began to catch the student movement people so I was scared because I already participated in the demonstration so I was scared, I went to the demonstration.
Tribunal: So you went to Japan for protection?
Interpreter: At that time just want to leave, wanted to leave the country.”
But the concern which I have expressed above does not really go to a finding that the Tribunal fell into jurisdictional error. The Tribunal, as I have already noted, had sufficient evidence to conclude that the first ground of the applicant’s claim for protection was not made out.
In regard to the second ground, the Tribunal questioned the applicant quite closely about his association with Falun Gong and his knowledge of the practices of that movement. The Tribunal concluded:
“The applicant failed to provide even a basic appreciation of core Falun Gong practices and beliefs beyond one or two much publicised key words. His responses to questions about the exercises were particularly unimpressive. The Tribunal concludes with much confidence that the applicant is in no way associated with Falun Gong. The Tribunal can find no basis for assuming that the applicant would ever be imputed to be a Falun Gong adherent.”
The conclusions expressed by the Tribunal, which might be considered by some to be robust, amount in reality to the expression of a lack of satisfaction as required by s.65 Migration Act 1958 (“the Act”). There is little doubt that the Tribunal was entitled to fail to find that the applicant had so satisfied it from the exchanges that took place between them, and therefore there was no jurisdictional error in so finding.
The grounds upon which the applicant seeks orders from this court mistakenly assume that the Tribunal was some form of appeal from the delegate, because the one ground (particularised in five ways) expressed is in the following form:
“That the RRT decision was effected to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.”
The particulars of that ground are more directly relevant to the Tribunal’s decision and I shall deal with each.
The first particular is:
“The Tribunal stated, “The Tribunal finds that the applicant’s claims about supporting the student movement are vague, unsupported and unimpressive.” However, the Tribunal did not try to clarify it from me when I was at the hearing.”
What the applicant appears to be suggesting is that the Tribunal had an obligation to tell him that it considered that his claims were vague, unsupported and unimpressive, and request from him a response. This, of course, is not necessary because the words which are used indicate that they are the conclusion reached by the Tribunal from the evidence put before it, and the Tribunal is entitled to come to its own conclusions without having to put each and every one of them to an applicant for comment: Ex parte S154/2002 (2003) 201 ALR 437 at [54]. This is the position even if the general rule relating to procedural fairness were to apply in this case, which of course it does not, because the application was made after the time at which s.422B of the Act commenced to apply.
The second matter raised by the applicant is:
“The Tribunal stated, “The applicant clearly went to Japan for reasons other than to seek protection. The Tribunal does not accept that the applicant really did support the pro-democracy movement in any significant way or to any significant level.”
The above statement was induced by actual bias of the officer. There was no evidence or materials to support the above statement.”
I have already discussed this finding of the Tribunal and whatever my criticisms may have been about it, they would not have included any finding of either actual or ostensible bias. As Mr Johnson points out in his helpful written submissions, actual bias is an allegation that must be distinctly made and clearly proved. It is:
“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”; Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877 per Lander J.
A finding of actual bias against a decision-maker
“…is a grave condemnation of the ability of the decision-maker to discharge his or her functions of impartiality”: SCAA v Minister for Immigration [2002] FCA 668 per Von Doussa J at [37].
The applicant has failed to meet the high standards required of this type of allegation.
The third complaint made by the applicant is in the following form:
“The Tribunal officer also mentioned, “His ease of departure and his voluntary return without subsequent mistreatment or punishment are evidence of his not having had a significant political profile with the PRC authorities.” The Tribunal had the record of approve visa to applicant who left their countries using own passport. This should not be used as evidence to refuse my application.”
It is not easy to comprehend what is meant by this statement. Perhaps the applicant is suggesting that the Tribunal used its knowledge of what may have occurred in other cases with other applicants to make the comment that it did and that it should not have done so because it should only have concentrated on the evidence produced by this applicant. That of course is also incorrect as a matter of law. The Tribunal is entitled to use the knowledge gained by it in the course of its procedures in any case which it has before it. But in any event this comment is made in respect to parts of the applicant’s claim which he agreed were no longer tenable.
The fourth matter is:
“The Tribunal failed to consider my claims.”
This is patently incorrect. The applicant made two claims and both of them were considered in some detail by the Tribunal at the hearing and in its written reasons.
The final matter is:
“The Tribunal did not observe Migration Act 1958 properly to making the decision.”
This ground is not particularised but Mr Johnson has suggested it may be a reference to an alleged failure to comply with s.424A. It may well be. I can see no such failure and in the absence of any other particulars would not wish to speculate on what the applicant might have meant.
In the circumstances I am unable to assist the applicant and grant review of the decision of the Tribunal. I dismiss his application.
I order that the applicant pay the respondent’s costs which I assess in the sum of $5000. I also order that the name of the respondent be amended so that the words “and Indigenous” are removed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
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