SZHKC v Minister for Immigration
[2007] FMCA 334
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 334 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal was obliged to consider the promptness of the applicant’s application for a protection visa – whether the Refugee Review Tribunal erred in relying on the demeanour of the applicant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 36(2)(a); 65; 65(1); 91R; 91S; 474; pt.8 div.2 |
| VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985) 162 CLR 24 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALJR 992 WAEJ v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCAFC 188 |
| Applicant: | SZHKC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3037 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 March 2007 |
| Date of last submission: | 7 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr B.D. O’Donnell |
| Solicitors for the Respondent: | Ms K. Rose, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3037 of 2005
| SZHKC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 August 2005 and handed down on 20 September 2005.
The applicant was born on 1 March 1985 and claims to be from The People’s Republic of China (“the PRC”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 11 December 2004, having legally departed from the PRC on a passport issued in his own name.
On 15 December 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 his protection visa application, the Applicant claimed that he feared persecution because he is a Falun Gong practitioner. The Applicant claimed that he, along with others, presented petitions to the government to allow the practise of Falun Gong in the PRC. The Applicant claimed that in 2000 he was expelled from school due to the fact that he was a Falun Gong practitioner and, after being expelled, he was unable to find employment.
On 24 March 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 27 April 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 20 September 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 19 October 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 has 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
On 3 August 2005, the Applicant attended a hearing before the Tribunal and gave oral evidence in which the Applicant expanded upon his written claims.
The Tribunal summarised the Applicant’s claim as follows:
“Essentially, it is the Applicant’s claim that, if he returns to China, he will face persecution because of his Falun Gong adherence. This arises because: (a) he will not be permitted to practice freely, and (b) having been expelled from school and given a poor school record (and hence personal dossier), he will find it difficult to obtain sustained employment and achieve a decent living standard.”
The Tribunal hearing is otherwise accurately summarised in the written submissions of the First Respondent at paragraphs 9 and 10, as follows:
“9. The Tribunal made the following finding’s in the applicant’s favour:
· The applicant is a citizen of China (CB 80.9).
· The applicant was generally confident in the way he gave evidence at the hearing (CB 81.8).
· The applicant was keen to display his knowledge of Falun Gong, including the names of the exercises. He was willing to perform them for the Tribunal. (CB 82.5).
· Persons involved with Falun Gong might well be cautioned by school authorities in China (CB 83.5).
· The school reports the applicant showed the Tribunal at the hearing would be part of the applicant’s personal file and poor comments in those reports might restrict his future employment or educational opportunities (CB 83.9).
10. However, the Tribunal made the following findings against the applicant’s claims:
· The practice times for Falun Gong at a location in Australia that the applicant gave at the hearing were at odds with publicly available information and the applicant avoided the Tribunal’s invitation to explain this discrepancy (CB 82.2).
· The applicant was hesitant in explaining his personal experiences and impressions relating to his Falun Gong activities (CB 82.5).
· Where the applicant had detailed answers on the nature of Falun Gong, these seemed to the Tribunal to be rehearsed (CB 82.6).
· The applicant’s description at the hearing of his personal practice of Falun Gong in Australia was confused and unconvincing (CB 81.8) and lacked cohesion and conviction (CB 82.4). This evidence gave the impression of having been information imperfectly researched and learned for the purposes of the hearing (CB 82.4). This evidence did not indicate that the applicant was a Falun Gong practitioner.
· The applicant’s account of his experiences relating to Falun Gong in China was formulaic and unconvincing (CB 83.3).
· The applicant showed little interest in associating with Falun Gong practitioners in Australia (CB 82-3).
· The negative comments in the applicant’s school record did not appear to be a way of punishing him but rather comments indicating poor academic performance (CB 82.7).
· Any negative employment or educational consequences of a poor record on the applicant’s personal file would, in any case, not amount to persecution within the way that term has been defined in s 91R of the Act (CB 84.2).
· The applicant is not a Falun Gong adherent or practitioner (CB 84.4).
· The applicant has not suffered any harm (let alone persecution) arising out of any Convention-related reason. The applicant does not have a well founded fear of persecution if he returns to China. (CB 84.5).”
The proceeding before this Court
The Applicant was represented before this Court by Mr Zipser of counsel.
Mr Zipser sought and was granted leave to file in Court an amended application. The grounds of that application are as follows:
“1. The applicant applied for a protection visa a few days after arriving in Australia. The Tribunal failed to take this matter into account in the course of finding that “the applicant is [not] a genuine Falun Gong adherent”. (“Prompt application issue”)
2. The Tribunal based its decision on the applicant’s demeanour. In the circumstances, the Tribunal breached the principles stated by Kirby J in MIMA v SGLB (2004) 78 ALJR 992 at [73]. (“Demeanour issue”)”
Ground 1 – whether the Tribunal erred in failing to have regard to the promptness of the Applicant’s application for a protection visa
Counsel for the Applicant contended that from time to time tribunals have regard to an applicant’s delay in applying for a protection visa following arrival in Australia.
In the proceeding before this Court, the Applicant applied for a protection visa 4 days after having arrived in Australia. Counsel for the Applicant submitted that the promptness of the Applicant’s application for a protection visa is material evidence and arguably of critical importance such that the Tribunal erred in failing to have regard to that fact.
Counsel for the Applicant referred the Court to VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (“VAAD”) where the Full Court of the Federal Court of Australia held that failure to have regard to relevant material is jurisdictional error. In VAAD, the Tribunal had failed to have regard to a letter given to the Tribunal by the applicant in support of his application, in circumstances, where the letter was “arguably of critical importance to the claims of all the appellants.”
Counsel for the Applicant submitted that the promptness of the Applicant’s application for a protection visa, upon his arrival in Australia, was arguably of critical importance. However, counsel for the Applicant conceded that such a fact was never relied upon by the Applicant before the Tribunal, nor was any submission made by the Applicant which in any way referred to that matter.
Counsel for the Applicant submitted that the consideration of this fact was part of the statutory context required to be considered by the Tribunal.
Counsel for the Applicant submitted that s.36(2)(a) of the Act requires a decision-maker, such as the Tribunal, to be satisfied as to whether or not protection obligations are owed to a particular applicant under the Refugees Convention as amended by the Refugees Protocol. Section 65 requires the decision-maker to consider whether it is satisfied that criteria prescribed by the Act for the grant of a protection visa have been satisfied and, if not, the decision-maker is to refuse to grant the visa. Article 1A of the Convention requires the decision maker to consider whether an applicant satisfies the test enunciated in Article 1A(2) of the Convention.
One of the elements a decision-maker is required to consider, in its deliberations of whether or not the applicant satisfies that criteria, is whether the applicant has a fear of persecution. Counsel for the Applicant submitted that it was in that statutory context that the Tribunal is obliged to consider primary documents and facts to be drawn from those documents. Counsel for the Applicant submitted that the promptness of the Applicant’s application is a fact to be drawn from the protection visa application where the date of arrival in Australia and the date of the lodging of a protection visa application is apparent to the Tribunal.
Counsel for the Applicant agreed that the submissions contained in the First Respondent’s supplementary written submissions at paragraphs 5 to 7 accurately summarises the relevant law. Those paragraphs are as follows:
“5. This comment was cited with approval by Mason J in his classic discussion of the relevant considerations doctrine in Minister v Peko-Wallsend (1986) 162 CLR 24 at 39-40 (emphasis added):
The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the [ADJR Act] which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar [(1981) 38 ALR 363 at 375]…
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account; it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.
This classic statement has been affirmed and adopted in numerous cases at the High Court and Full Federal Court level: see, e.g. Sydney Airport Corporation Ltd v Australian Competition Tribunal (2006) 155 FCR 124 at [39] (French, Finn and Allsop JJ); Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [36] per Sackville J (Black CJ agreeing at [5], Sundberg J agreeing at [104]); Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22]-[23] (Gleeson CJ and McHugh J), [45] (Gaudron and Hayne JJ), [102] (Kirby J).
6. Thus the “agenda grounds” of failing to take into account a relevant consideration and taking into account an irrelevant consideration conceive of three categories of considerations:
(a) irrelevant considerations, which the decision-maker is prohibited from taking into account and which will found the ground of taking into account an irrelevant consideration;
(b) relevant considerations, which the decision maker may, in his or her discretion, take into account; and
(c) relevant considerations, which the decision-maker is bound to take into account such that failing to do so will found the ground of failing to take into account a relevant consideration.
7. The Minister submits that the promptness of the applicant’s protection visa application after his arrival in Australia is a consideration in category (b) – the Tribunal was allowed, but not bound to consider it and failure to do so was thus not an error.”
Counsel for the First Respondent submitted that the promptness of the Applicant’s protection visa application is a matter that the Tribunal was able to consider but was not bound to consider and a failure to do so was not an error. Counsel for the First Respondent conceded that the promptness of the Applicant’s application is not an irrelevant consideration. Counsel for the First respondent submitted that it was not a consideration made mandatory by the statute and that, “There is nothing in the subject-matter, scope and purpose of the Act to indicate that the promptness or tardiness of the application is a consideration that either the Minister or the Tribunal is bound to consider.”
It is common ground between the parties that the promptness of the application is not a matter that the Tribunal was prohibited from taking into account.
Counsel for the First Respondent conceded that, in accordance with the submission made by counsel for the Applicant, matters which may be relevant and required to be considered by a Tribunal are not limited by documents provided by an applicant (as in VAAD) or submissions (as in Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1985) 162 CLR 24 (“Peko-Wallsend”) and may include other matters.
The promptness of the application was not a fact relied upon by the Applicant nor one which the Applicant in any way drew to the attention of the Tribunal. Indeed, the Tribunal did not have before it the evidence contained in the Applicant’s passport of the date upon which the Applicant arrived in Australia because the Applicant did not bring his passport to the hearing, despite having been requested to do so. The only evidence before the Tribunal of the date upon which the Applicant entered Australia is the Applicant’s bare assertion contained in his protection visa application.
The First Respondent referred the Court to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] in support of the proposition that the promptness of the application was not a claim made by the Applicant, nor was it an integer of that claim. Counsel for the First Respondent conceded that promptness may be potentially relevant, in considering whether or not the Applicant has a subjective fear of persecution, however, the Tribunal would only have been bound to consider that fact, where it was raised by the Applicant as an integer of his claim.
Accordingly, the promptness of the Applicant’s application for a protection visa after having arrived in Australia was not a consideration, in all the circumstances, that the Tribunal was bound to have regard to such that failure to do so amounted to jurisdictional error. In the circumstances, it was a relevant consideration that the Tribunal may or may not take into account (Peko-Wallsend at 39-40 per Mason J).
Accordingly, ground 1 is not made out.
Ground 2 – whether the Tribunal erred in having regard to the Applicant’s demeanour
Counsel for the Applicant submitted that the Tribunal erred in making adverse findings based on the Applicant’s demeanour. Counsel for the Applicant referred the Court to Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALJR 992 (“SGLB”) in particular at [73] where Kirby J stated as follows:
“Credibility is often seen as the crucial issue in tribunal determinations of refugee status. The references in the Refugees Convention to the existence of “fear” and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in MIMA v Rajamanikkam (2002) 210 CLR 222 “many, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility.” There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is in issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The tribunal must be firmly told – if necessary by this court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.”
The First Respondent submitted that it was of note that Kirby J was in dissent in SGLB. Counsel for the First Respondent submitted that, in any event, the passage above focuses on “cautioning against using inconsistencies or even demonstrative false statements by an applicant as the basis for a general findings against the whole of an applicant’s claims.”
In any event, the Tribunal explained in its reasons how the demeanour of the Applicant affected its decision and therefore did not rely solely on demeanour for its adverse finding (WAEJ v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCAFC 188 at [17]-[18]).
For example, in concluding that the Applicant was not a Falun Gong practitioner, the Tribunal found inconsistencies between the Applicant’s evidence of his Falun Gong practice in Sydney at a Darling Harbour practice site, inconsistent with independent information about the practice times. The Tribunal found that the Applicant “avoided the Tribunal’s invitation to explain this discrepancy”. The Tribunal found that the Applicant had not shown a wider interest in associating with Australian Falun Gong practitioners. The Tribunal found that the Applicant “provided piecemeal responses based not on his actual personal experiences as a practitioner, but rather (imperfectly) learned and researched information prepared for the purposes of the hearing.”
The Tribunal also found the Applicant’s evidence about his early involvement in the distribution of materials to be “formulaic and unconvincing”. The Tribunal found that the Applicant “offered scant insight” into how he managed to distribute material at the age of 15 with school obligations and a non Falun Gong family.
The Tribunal had regard to school reports that it found not to be corroborative of the Applicant being subject to adverse treatment by reason of being a Falun Gong practitioner. Moreover, the Tribunal found the records contained both negative and positive comments.
Moreover, the Tribunal predicated its findings about the Applicant’s credibility and demeanour on an appreciation by the Tribunal that applicants may be nervous at hearing and may, during the course of discussion, recall additional points to supplement additional responses. However the Tribunal noted that, in the present case, it found the Applicant was “generally confident”.
A fair reading of the decision makes it clear that the Tribunal was aware that people may be nervous and forgetful when giving evidence. Mindful of that possibility the Tribunal did not rely solely on the Applicant’s demeanour in making adverse findings about the Applicant’s claims.
There is no error in the manner in which the Tribunal had regard to the demeanour of the Applicant in the context of its reasoning and decision as a whole. The findings and conclusions made by the Tribunal were open to the Tribunal on the evidence and material before it and for which it provided reasons.
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 proceeding before this Court is dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 21 March 2007
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