SZHDQ v Minister for Immigration
[2008] FMCA 231
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 231 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZHDQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2143 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2143 of 2007
| SZHDQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 26 June 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People's Republic of China, arrived in Australia in December 2004 and applied for a protection visa. The application was refused and he sought review by the Tribunal. In a decision handed down on 30 August 2005 the Tribunal as originally constituted affirmed the decision of the delegate. The applicant sought judicial review of that decision. By orders made on 9 February 2007 this Court remitted the matter to the Tribunal for reconsideration according to law. It is that reconsideration that is the subject of these proceedings.
After the matter was remitted to the Tribunal for reconsideration, the Tribunal wrote to the applicant inviting him to provide any further documents and informing him of the process of reconsideration. It again wrote to the applicant on 13 March 2007 inviting him to a hearing on 20 April 2007. It is apparent from the Tribunal reasons for decision that the applicant attended that hearing, at which time he also provided the Tribunal with copies of two untranslated documents.
In its reasons for decision the Tribunal set out the applicant's claims as made in the statement attached to his protection visa application and as made at the hearing on 20 April 2007.
The applicant's initial claim to fear persecution was a claim based on his practice of Falun Gong. He claimed that he had had a gambling problem before he started practising Falun Gong in May 1997, that after Falun Gong was banned he and a named friend were re-educated at the "6.10 Office" and that he agreed not to practice but in fact did so. He claimed that they were punished by being restricted in the area in which the business could operate and that he and his friend were detained for distributing pamphlets promoting Falun Gong.
The only evidence of what occurred at the Tribunal hearing is the Tribunal account. The Tribunal recorded the applicant’s elaboration on his claims and also his responses when asked for details about the practice, the history and philosophy of Falun Gong, Falun Gong exercises, and that when the Tribunal asked the applicant to demonstrate the first exercise, he appeared to demonstrate only part of the exercise. The Tribunal recorded his explanation that since being in Australia he had only done sitting down meditation and that he did not do many of the exercises in China, but only participated in activities such as meetings and discussions with practitioners and that in his area only the first exercise was passed on. The Tribunal also recorded that when asked about his practice of Falun Gong in Australia, the applicant said that he went to the park opposite Auburn railway station about two to three times a month and that he mainly did sitting down meditation. The Tribunal set out the applicant's claims that he was arrested for practising Falun Gong and detained and referred to the fact that he had provided the Tribunal with two untranslated documents, the first which was said to relate to his claimed detention on 6 May 1999, the second to payment of a fine on 16 May 1999 to secure his release from detention. He told the Tribunal that a student had brought the documents with him from China.
In its findings and reasons the Tribunal accepted that the applicant was a national of the People's Republic of China. It considered his claim to have practised Falun Gong from 1997. It had regard to his limited knowledge of and ability to demonstrate Falun Gong exercises. It considered but did not accept the applicant's explanation for his lack of knowledge. It found that it would expect that a genuine Falun Gong practitioner of some 10 years standing would know and be able to demonstrate all five Falun Gong exercises, particularly when he claimed to have continued to practice in Australia with other practitioners two or three times a month. It was of the view that the applicant's inability to demonstrate even the first Falun Gong exercise indicated that he was not a genuine Falun Gong practitioner.
While the Tribunal accepted that the applicant had demonstrated some knowledge of Falun Gong at the hearing, it found that he had no more than a limited understanding of the importance or meaning of the concept of the Falun despite the importance of that concept to the practice of Falun Gong. The Tribunal did not accept, based on the applicant's evidence, that he had read any books on Falun Gong or that prior to the hearing he was aware of the main book on Falun Gong. The Tribunal acknowledged that it may be difficult for applicants to articulate the principles and meaning behind the practice of Falun Gong in a hearing situation and that they may be nervous in demonstrating exercises, but noted that the applicant did not claim such a reason for being able to demonstrate only a limited knowledge and understanding of Falun Gong. It was satisfied that the applicant had considerable opportunity during the hearing to explain his knowledge of Falun Gong and its importance to him. It did not accept that he was able to do so in anything other than an extremely rudimentary manner. It found his extremely limited understanding to be highly inconsistent with his claim that he had practised Falun Gong for some 10 years.
In light of the serious deficiencies in the applicant's evidence in relation to his knowledge of Falun Gong the Tribunal did not accept that he was a Falun Gong practitioner in China. The applicant’s evidence at the hearing led the Tribunal to conclude that he had learnt some basic information about Falun Gong for the purpose of providing evidence at the hearing.
Based on these findings, the Tribunal did not accept that the applicant was detained in China for the period claimed for practising Falun Gong. It considered the two documents the applicant submitted but it was of the view they did not establish that the applicant was detained for practising Falun Gong. Given the deficiencies in his knowledge of Falun Gong and its finding that he was not a Falun Gong practitioner in China the Tribunal did not accept that the applicant was detained for practising Falun Gong or that he was “casually questioned” by the authorities or that his business suffered for his continued practice of Falun Gong. As it did not accept that there was any reason for him to have done so, it did not accept that he obtained his passport through the use of bribery. The Tribunal found that the applicant's “extremely limited understanding” of Falun Gong demonstrated at the hearing was not consistent with his claim to have practised Falun Gong in Australia. It did not accept that he had been a Falun Gong practitioner in Australia.
While the Tribunal noted that the applicant had given some inconsistent evidence in his statement to the Department and his oral evidence to the Tribunal on some issues, it considered this of no consequence. It made no adverse findings in relation to such inconsistencies. Rather it stated that it based its findings on the applicant's oral evidence at the Tribunal hearing.
The Tribunal concluded that it did not accept the applicant had suffered serious harm in China as a result of being a Falun Gong practitioner or that he would practice Falun Gong on return to China. It was not satisfied that there was a real chance that he would be persecuted for reason of his real or imputed religious beliefs or membership of any particular social group for the purposes of the Refugees Convention on the basis of his claimed involvement with Falun Gong or for any other Convention reason. It noted that the applicant had not claimed any other reason for fearing returning to China.
The applicant sought review of the Tribunal decision by application filed in this Court on 11 July 2007. He filed an amended application on 24 September 2007. That amended application contains two grounds. The first is that the RRT “based their decision on the first Tribunal and did not take into account the second hearing”.
The Court Book for the proceeding did not include in it a copy of the first Tribunal decision. When the applicant was asked for clarification of this ground in the absence of any written submissions, he was not able to clarify for the Court what he meant by that ground. In particular it was not clear whether or not there had been a first an earlier Tribunal hearing or how the contention related to matters addressed in an earlier Tribunal hearing or decision. Bearing in mind that the applicant is self-represented, the hearing was adjourned to enable the solicitor for the first respondent to provide the Court with a copy of the first Tribunal decision. It was tendered as an exhibit in these proceedings.
It is apparent from the first Tribunal decision, and it is now not disputed by the applicant, that he did not attend any hearing conducted by the Tribunal as originally constituted. Nor is there any suggestion that the applicant provided other information to the first Tribunal in writing beyond what appeared in his claims in connection with his protection visa application.
When given a further opportunity today to explain what he meant by this ground, the applicant first explained that he had missed the first hearing because he had moved and did not get the invitation. He then provided a clarification which was to the effect that he had not provided further information to the first Tribunal and that while he had provided information to the second Tribunal it had rejected his claim.
The applicant explained that his complaint was that despite having provided further information to the second Tribunal his application had been rejected. In that context he contended that the Tribunal's decision to reject his claim was based on the decision of the first Tribunal.
It is the case that in its reasons for decision the first Tribunal referred to the absence of detail in the applicant's claims in connection with his protection visa application. However, the applicant attended a hearing conducted by the Tribunal as reconstituted. He also provided that Tribunal with two documents which he said related to his detention in China which he claimed had occurred because he practised Falun Gong.
However the applicant's contention does not establish jurisdictional error on the part of the Tribunal. It is apparent from the Tribunal reasons for decision that the Tribunal considered the claims and material put before it by the applicant. It put on one side any inconsistencies between his statement to the Department and his oral evidence. It made its findings based on what it found to be the applicant's very limited knowledge of Falun Gong at the Tribunal hearing. It was on that basis that it rejected his claim that he had been detained “because” he practised Falun Gong as well as his more general claim to have been a Falun Gong practitioner in China or a Falun Gong practitioner in Australia.
On the material before the Court there is nothing to support any claim that the Tribunal based its decision on the first Tribunal decision and did not take into account the second hearing or the information the applicant provided to it in a manner constituting jurisdictional error. Rather, its decision was based on the applicant's own evidence at the second hearing. In that respect, as indicated, the only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal's reasons for decision. There is no factual foundation for any complaint that may be made or intended to be made about the conduct of that hearing. The mere fact that the Tribunal reached the same conclusion as the earlier Tribunal does not give rise to an apprehension of bias or establish that it failed to take into account relevant considerations or otherwise fell into jurisdictional error. The first ground is not made out.
The second ground is a contention that the procedures required by the Migration Act 1958 (Cth) and the Migration Regulations were not observed. This ground is unparticularised and was not clarified by submissions from the applicant. There is nothing in the material before the Court to raise any suggestion of a failure by the Tribunal to comply with the procedures required under the Migration Act. I note in that respect that the applicant was invited to and attended a Tribunal hearing. There is nothing in the material before the Court to suggest that there was any failure by the Tribunal to comply with s.425 of the Act either in relation to the invitation or the conduct of the Tribunal hearing and the matters raised with the applicant at that hearing.
Nor is this a case in which s.424A of the Migration Act is enlivened. The Tribunal, as indicated above, relied on the evidence of the applicant given at the hearing, being material provided to the Tribunal in connection with the review and hence within the exception to s.424A(1) in s.424A(3)(b). In particular, it is not necessary to consider the law in relation to material provided by an applicant to the Department and the scope of the concept of “information” in circumstances where there may be inconsistencies between claims made to the Department and the Tribunal because, while noting that there was some inconsistent evidence, the Tribunal made no adverse findings in relation to the inconsistencies. Rather it made its findings based on the applicant's evidence at the Tribunal hearing. (See SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190).
The applicant contended initially and repeated in concluding submissions that the Tribunal made its decision without giving careful consideration to his case. He stated that he provided his information but that the Tribunal said that that was not sufficient. Insofar as this contention takes issue with the Tribunal's factual findings and seeks review of the merits of the Tribunal decision, merits review is not available in this Court. It is apparent from the Tribunal reasoning that the Tribunal in fact considered the evidence of the applicant at the hearing. It considered the difficulties an applicant might face in giving evidence at a hearing. It gave the applicant a number of opportunities to elaborate on areas of knowledge and areas of concern to the Tribunal. However, after considering his evidence the Tribunal found that it was wanting and demonstrated an extremely limited understanding of Falun Gong.
Insofar as this allegation is intended to suggest that there was bias or apprehended bias, such a claim is not made out on the limited material before the Court. The Tribunal did have regard to the applicant's extremely limited understanding of Falun Gong, finding that it was not consistent with his claim to have practised Falun Gong in Australia. It also found that the serious deficiencies in his evidence in relation to his knowledge of Falun Gong was such that it did not accept that he was a Falun Gong practitioner in China. The applicant appeared to take issue with the basis for the Tribunal's reasoning, but such findings were open to the Tribunal on the material before it. Its reasoning is not such as to establish actual or apprehended bias (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982).
Insofar as the applicant intends to take issue with the logic of the Tribunal reasoning, his claims do not establish a lack of logic, let alone a lack of logic or unreasonableness such as to demonstrate a jurisdictional error.
In concluding submissions the applicant also suggested that the Tribunal had no evidence for its conclusions. The Tribunal did have the evidence of the applicant himself at the Tribunal hearing. Insofar as it is intended to be suggested that the Tribunal was under some obligation to obtain further information, it is for an applicant to put his case and for the Tribunal to determine on the basis of the material before it whether it is satisfied that the applicant meets the criteria for a protection visa. It was open to the Tribunal to have regard to independent information before it in relation to Falun Gong in the manner in which it did. There was no obligation on the Tribunal to make further inquiries of its own in the circumstances of this case.
The applicant also contended that the Tribunal did not consider the information he provided. As indicated, the Tribunal outlined the applicant's initial written claims, made no adverse findings in relation to inconsistencies but considered his claims of involvement in Falun Gong on the basis on which he presented them at the Tribunal hearing. The Tribunal also addressed the two documents provided by the applicant to the Tribunal which he said related to his detention. However it rejected his claims that he was detained for practising Falun Gong given its rejection of his claim that he was a Falun Gong practitioner in China. It has not been established that the Tribunal failed to have regard to information that the applicant provided in such a manner as to constitute a failure to have regard to relevant considerations or other jurisdictional error.
Finally, the applicant told the Court that if he returned to China it would be dangerous. However it is not for the Court to determine whether or not an applicant is a refugee and, as indicated, merits review of Tribunal decisions is not available in this Court. As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount sought by the first respondent in this case is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 February 2008
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