SZHBV v Minister for Immigration
[2007] FMCA 986
•28 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHBV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 986 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal. MIGRATION – Whether Tribunal decision was made in good faith – whether applicant entitled to the benefit of the doubt – whether Tribunal’s decision was illogical or unreasonable. MIGRATION – Concepts of Wednesbury unreasonableness do not apply to decisions of the Tribunal. |
| Migration Act 1958, ss.36, 65, 91X |
| SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 Abebe v Commonwealth (1999) 197 CLR 510 Re Ruddock; Ex parte Applicant 154/2002 (2003) 201 ALR 437 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Applicant 169/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 8 |
| Applicant: | SZHBV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2495 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 April 2007 |
| Date of Last Submission: | 3 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2495 of 2005
| SZHBV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 29 November 2005, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 12 July 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 24 March 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The applicant, who claims to be a citizen of The People’s Republic of China, arrived in Australia on 26 November 2004. (Court Book (“CB”) page 47).
The applicant claims to fear future persecution in China because he is a Falun Gong practitioner and a member of the Chinese Communist Party who refused to monitor other Falun Gong practitioners.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (CB 49 - 52). Relevantly, they are in summary:
a)the applicant has been practising Falun Gong for “many years”;
b)in his oral evidence to the Tribunal, the applicant said that he has been participating in Falun Gong activities secretly since 1996;
c)he began to practise Falun Gong because he suffered severe “long period back pain” which improved after he practised;
d)the applicant promoted the spirit of Falun Gong and taught the practice to his relatives and friends;
e)the applicant showed the Tribunal a booklet where, at page 17, it is noted that the applicant was a secretary in the Communist Party. He held this position from 1992 until 2002;
f)the authorities wanted to suppress Falun Gong practitioners and asked the applicant to report the names of practitioners which he refused to do;
g)the applicant was sacked in 2002 for refusing to monitor and report on Falun Gong activities in China;
h)the applicant had to open a business without the authorities’ permission and was detained for a month in March 2002. He was told he was detained because of his political opinions;
i)he had to borrow money to support his family;
j)he was able to escape arrest “many times” as he has a “good relationship with some of the officers in local government” and has kept “silent and inactive”;
k)the applicant escaped China for personal safety reasons. If he were to return, he “would be one of those who hurl oneself willingly into the net to get punished”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person 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:
a)The applicant’s claim to be a Falun Gong practitioner:
In the course of the hearing, the Tribunal asked the applicant a number of basic questions about Falun Gong and it was astonishing how little he knew about the practice. His lack of knowledge is incommensurate with his claims that he practised Falun Gong in China and in Australia. It is also incommensurate with his claim that as a secretary of the Communist Party, he was asked since 1992 to report on and subsequently monitor Falun Gong activities. Of particular concern to the Tribunal are the following matters:
· The Tribunal asked the applicant to explain why the authorities became more interested in Falun Gong in 1996 and he provided a vague answer namely that “some protests happened…in Falun Gong in 1996.…” He simply had no idea.
· The applicant gave evidence that in January 1992, he was asked to report on Falun Gong activities, at a time when it had not even been founded. The Tribunal asked the applicant when Li Hongzhi founded Falun Gong and the applicant said “not sure about that…”.
· The Tribunal asked the applicant to explain why he was asked in 1996 to monitor Falun Gong activities. He said “maybe some riot.…happened somewhere….some activities unbeneficial to the Party”. When the Tribunal put to the applicant that his answers were vague, he provided another vague answer, namely that there were “organised activities to protest”.
· The applicant said that he was sure that Falun Gong was banned in 1998. Independent country information put to the applicant indicates that it was banned on 22 July 1999. He said he was talking about Chinese Lunar Year, namely December 1998. The Tribunal put to the applicant that December 1998 is the wrong date in any case. The applicant said “three to four months difference…I can’t remember exactly…” The applicant said he did not put much emphasis on such matters. The Tribunal finds the applicant’s explanations unconvincing.
· The Tribunal asked the applicant when the Chinese authorities issued the arrest order for Li Hongzhi. The applicant said “1999…normally 1996…I’m not clear about that…” Independent country information put to the Tribunal indicates that the order was issued in 29 July 1999.
· The Tribunal asked the applicant how many Falun Gong exercises there are. He said “I don’t know how many steps… I’m not very clear on that”. Later he said “Sometimes I sit there and raise my hands”. He simply had no idea.
· The Tribunal asked the applicant about the Falun Gong slogan. The applicant said he was not sure what the slogan is but said it was “great difference”. The Tribunal put to the applicant that the Falun Gong slogan is “truthfulness, benevolence, forbearance”. Once the interpreter said “zhen shan ren” which is the Chinese translation, the applicant said he knew that. The Tribunal asked him to explain why he did not say before when he was asked, he said he could not recall because he was nervous. The Tribunal is not persuaded by the applicant’s explanations.
· The applicant said he knew that Li Hongzhi’s family had sought asylum in America. The Tribunal asked the applicant when that happened and he said “exactly I can’t remember” Independent country information indicates that in February 1997, Li Hongzhi and his family applied for asylum in New York.
It is clear from the above that the applicant’s knowledge of Falun Gong was very limited. It was astonishing that he did not even know how many exercises there were. Despite being given opportunities to clarify, some of his answers remained very vague and at various stages evasive. In light of these comments and in consideration of the evidence as a whole, the Tribunal rejects the applicant’s claim that he was ever a Falun Gong practitioner or that he was ever involved secretly or openly in any Falun Gong activities in either China or in Australia. The Tribunal is satisfied that the applicant has fabricated these claims reflecting adversely on his credibility. (CB 57 – 58)
b)The applicant’s claim to be a secretary in the Communist Party:
… Given the credibility issues, the Tribunal has concerns about the accuracy of the information contained in the booklet but for the purposes of the Decision, the Tribunal accepts as being plausible that the applicant was a secretary of the Party. However, given the applicant’s lack of knowledge about Falun Gong and looking at the evidence cumulatively, the Tribunal does not accept that he was asked in that role to report on or monitor Falun Gong activities. It is simply incredulous that a person who virtually knows nothing about Falun Gong would be involved in monitoring and reporting on such activities. He would not even be in a position to determine if a person was practising Falun Gong or something else. Given the Tribunal’s … rejection of the claim that the applicant was asked to report on or monitor Falun Gong activities, it follows that the Tribunal does not accept that the applicant lost his employment in 2002 because he refused to report on or monitor Falun Gong activities, or that he opened his own business or was detained for any reason as such findings are inherently contingent upon a positive finding that the applicant was asked to report on and monitor Falun Gong activities. In essence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm. (CB 58 – 59)
Proceedings in this Court
The grounds of the application are as follows:
1. The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that:
a) The Tribunal did not afford to the applicant the benefit of the doubt when there was no material to the contrary to what was being asserted by the applicant;
b) The Tribunal did not accept the applicant’s credibility as the applicant was unable to answers [sic] some interview questions about the details of the Falun Gong organization. However, the applicant did not claims [sic] to be a Falun Gong follower. Instead he claimed to be a member of the Chinese Communist Party who was on duty to monitor Falun Gong. He claimed that he was persecuted because he refused to do that. The Tribunal made the incorrect finding on the basis of its incorrect assumption that a government officer who was required to monitor Falun Gong must know about Falun Gong very well.
2. The applicant claims that he used to be a public official in the local government and his duty was to monitor Falun Dafa practitioners. Because he refused to fulfill his duty, he was persecuted by the Chinese government. The Tribunal did not accept such claims. The Tribunal states, on page 13 of the decision, that “it is incredulous that a person who virtually knows nothing about Falun Gong would be involved in monitoring and reporting on such activities”. This finding is unreasonable and incorrect.
Dealing with each of these grounds in turn:
The Tribunal’s decision was not made bona fide
The first part of the first asserted ground of review raises for consideration as a preliminary matter whether the Tribunal approached its task in good faith. The Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 set out at 755 – 757 a number of propositions which had arisen out of judgments of single judges of the Federal Court in which the principles applicable to a determination of whether a Tribunal decision constitutes a bona fide attempt to exercise power of review was considered. Their Honours summarised those propositions at 756 [43] – [46]. The propositions emerging from that summary were that:
·An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
·The allegation is not to be lightly made and must be clearly alleged and proved.
·The presence or absence of honesty will often be crucial.
·The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
·Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
·Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
As the applicant has led no evidence in these proceedings in support of an allegation that the Tribunal did not attempt to exercise its powers in a bona fide manner, the propositions articulated by the Full Court demonstrate that the allegation must fail.
An alternative interpretation of the allegation that the Tribunal did not make a real attempt to make a decision in a bona fide manner is that it is, in reality, an allegation of bias and, in the circumstances of this case, actual bias.
In relation to actual bias, North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
His Honour went on to refer to the Canadian case of Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 as demonstrating that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. His Honour observed that it is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. (Sun’s case at 563).
A consideration of the Tribunal’s decision does not suggest that it had pre-judged the application or was impervious to the arguments and evidence put before it by the applicant. Moreover, no evidence has been adduced in support of such propositions. The allegation of bias, if that is what it is, is a serious one and, in the absence of evidence, must fail.
In relation generally to this part of the applicant’s case, I adopt what the Minister says in his written submissions:
The decision record indicates that the applicant was provided with an opportunity to give evidence and present arguments at the hearing. The material before the Court does not provide any foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith. (paragraph 8).
The Tribunal did not afford the applicant the benefit of the doubt
This asserted ground of review misunderstands the task of the Tribunal. As the second paragraph of its decision notes, under s.65(1) of the Act, a visa may only be granted if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. In the next paragraph the Tribunal refers to sub-s.36(2) which provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention. It is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out. (Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]; Re Ruddock; Ex parte Applicant 154/2002 (2003) 201 ALR 437 at 450 [57].)
If the applicant has failed to adduce sufficient cogent evidence, such that the Tribunal can reach the necessary state of satisfaction, then he will be unsuccessful. That was the situation here.
Moreover, this was not a case where the applicant was considered to be a credible witness but there was lack of substantiation for some of his claims as discussed by Beaumont J in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. Here, the applicant’s claims, even in the form advanced by him to the Tribunal, were so unconvincing that no issue arose of giving the applicant any benefit of any doubt.
The Tribunal made an incorrect finding as to the applicant’s credibility because he could not answer questions about Falun Gong
The applicant bases this ground on two assertions, namely:
a)the applicant had not claimed to be a Falun Gong practitioner;
b)the Tribunal incorrectly assumed that a government officer monitoring Falun Gong would know Falun Gong well.
As to the first of these assertions, the applicant has ignored what he told the Tribunal, as recorded at CB 51, namely that in June 1996 he started to practise Falun Gong secretly. The applicant having claimed to be a Falun Gong practitioner, it was open to the Tribunal to draw adverse credit inferences when he was unable to demonstrate an adequate knowledge of the subject.
Further, having alleged at the Tribunal hearing that he had been tasked by the Communist Party with reporting on Falun Gong activities as early as 1992, and also in subsequent years, it was open to the Tribunal to conclude, given the applicant’s apparent ignorance of Falun Gong history, practices and beliefs that he had not monitored or reported on Falun Gong activities. This conclusion led to the consequential finding that the Tribunal did not accept that the applicant had lost his employment in 2002 because he refused to report on or monitor Falun Gong activities and suffered persecution as a consequence.
In any event, it is not for this Court on a judicial review application to conduct a review of the credibility findings made by the Tribunal. As McHugh J observed in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], a finding on credibility is the function of the Tribunal par excellence.
As to the applicant’s assertion that the Tribunal laboured under an incorrect assumption that a government officer monitoring Falun Gong would know about Falun Gong, this was a question of fact for the Tribunal to determine. Such an assumption might be vulnerable to an assertion that it was illogical but that would not be an accurate characterisation of the assumption made by the Tribunal on this point. It was open to the Tribunal to conclude on the facts that the applicant’s ignorance of Falun Gong was inconsistent with the role which he said in his evidence at the hearing he had played in monitoring and reporting on Falun Gong activities.
Consequently, no jurisdictional error is demonstrated in respect of this asserted ground of review.
The Tribunal’s finding that it did not accept the applicant’s claims to have been persecuted because he refused, as a public official, to monitor Falun Gong practitioners, was unreasonable and incorrect.
To the extent that the applicant alleges that the Tribunal made a factual error, as already stated in these reasons, proceedings for judicial review such as these do not permit an examination of the Tribunal’s fact-finding. The role of the Court is to declare and enforce the law which governs the Tribunal’s operations. The Tribunal’s function is, operating within the law, to determine the facts of the matter. If, operating within the law, the Tribunal arrives at an incorrect finding of fact, that is not a matter reviewable by the 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 [53]:
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) [75 ALJR 542] [35] per McHugh J.
To the extent that the applicant alleges that the finding is unreasonable, the High Court has held that Wednesbury unreasonableness concepts apply only to decision-makers’ discretionary decisions, and the Tribunal’s decision does not fall into that class: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at 76 [73] and [74] and Kirby J at 90 – 91 [142], [143]. Nevertheless, the Full Court of the Federal Court in Applicant 169/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 8 said at [31] that:
There may appear circumstances in which a decision of an administrative decision-maker appears so unreasonable that no reasonable decision-maker could have come to it. In that circumstance, jurisdictional error may be established if such a conclusion is reached, because it is then inferred from the nature of the decision that the administrative decision-maker applied the wrong legal test in making the decision or was not, in reality, satisfied in respect of the correct legal test in making the decision.
However, the Tribunal’s finding here cannot be characterised as so unreasonable that no reasonable decision-maker could have come to it such that it could be inferred that the wrong legal test had been applied. For the reasons already given at [22] above, the Tribunal’s assumption concerning the knowledge which the applicant ought to have had as a government officer monitoring and reporting on Falun Gong activities, leading to its incredulity that he would be involved in such activities while knowing nothing about Falun Gong, was a logical assumption to make with the consequence that its disbelief was not unreasonable, even if colourfully expressed.
Consequently, this ground is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 28 June 2007
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