SZIBP v Minister for Immigration - [2007] FMCA 404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 404

MIGRATION – Refugee – application for extension of time granted – Tribunal applied correct test for persecution – this Court cannot perform merits review – no bad faith – weight given to evidence is a matter for Tribunal – no error in wrong finding of fact by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958, ss.422B, 424, 424A, 424A(1), 424A(2), 424A(3)(b), 425, 425A, 477, 477(1)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
McPhee v Minister for Immigration Local Govt & Ethnic Affairs (1988) 16 ALD 77

Applicant:

SZIBP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 72 of 2006

Judgment of:

Nicholls FM

Hearing date:

6 March 2007

Date of Last Submission:

1 March 2007

Delivered at:

Sydney

Delivered on:

29 March 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr. J. Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 72 of 2006

SZIBP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 9 January 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 21 November 2005, and handed down on 8 December 2005, to affirm the decision of a delegate of the respondent Minister to refuse the applicant a protection visa. The Tribunal is joined as the second respondent in these proceedings.
I also have before me the Minister's Response filed on 23 February 2005 seeking that the application be dismissed on the basis that the Court lacks jurisdiction to try this matter pursuant to s.477 of the Migration Act 1958 (“the Act”) as it was made out of time. Further in the alternative, and in any event, the respondent submits that the Tribunal’s decision is not affected by jurisdictional error.

Background

The applicant is a citizen of the People’s Republic of China who arrived in Australia on 15 April 2001. He entered Australia with a student visa valid to 15 March 2004. Upon expiry of his student visa the applicant did not apply for any other visas. Subsequently, he was detained by the Minister’s Department and remained in Immigration detention for some weeks. On 19 August 2005 he applied for a protection visa, and on 25 August 2005 a delegate of the respondent Minister refused to grant a protection visa. On 31 August 2005 the applicant applied for review of that decision by the Tribunal. The applicant was invited to and attended, a hearing before the Tribunal on 28 September 2005. A number of witnesses also gave evidence to the Tribunal.

Claims

The applicant claimed fear of persecution in China for the Convention reason of “religion”. He claimed he was an adherent of the Falun Gong movement. The applicant’s claims to persecution are set out in his application for a protection visa reproduced in the Court Book (“CB”) at CB 2 to CB 26, his application for review (reproduced at CB 49 to CB 51), and further, in written submissions to the Tribunal reproduced at CB 62 to CB 71.

Tribunal’s findings

The Tribunal:
1)Did not accept that the applicant had ever been a supporter, follower, or practitioner, of Falun Gong (CB 116.9).
2)Concluded, on the facts, that the applicant had either “invented relevant events such as encounters with the authorities or persons concerned with Falun Gong, or given irrelevant meetings and encounters false relevance for the purposes of this application” (CB 117.1).
3)On the evidence before it, found that the applicant’s familiarity with Falun Gong “specifics” as “highly limited and flawed”, and was probably “very recently and superficially accumulated” (CB 117.3).
4)Found the evidence of the applicant’s witnesses to be “misleading and not helpful” as it relied on the “untenable position” that the applicant was a Falun Gong practitioner (CB 117.5).
Therefore, the Tribunal concluded that it could not be satisfied that the applicant would face a real chance of Convention related persecution in the PRC if he were to return. Further, that the claimed fear of such persecution was not well founded. In all the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.

Application to the Court

The applicant’s application filed in this Court on 9 January 2006, with a supporting affidavit, raises the following complaints:
“1. The Tribunal constructively failed to exercise it jurisdiction and to afford the Applicant natural justice in circumstances where the Tribunal applied the incorrect test of persecution for Convention reason.
a.The Tribunal did not accept the Applicant suffered persecution for Convention reason at the time of leaving China (CB 67).
2.The Tribunal's decision was infected with jurisdictional error in circumstances where it came to its conclusion about the lack of persecution upon refoulment on an improper and unreasonable basis.
a. The Tribunal lacked probative evidential support for such conclusion and relied on irrelevant considerations and inappropriate Application of independent country information.”
For the applicant I have before me:
1)Application filed 9 January 2006.
2)An affidavit of 9 January 2006.
3)Application filed 2 March 2006.
4)An affidavit of 2 March 2006.
[I took 3) and 4) above to be an application for an extension of time within which to make the application to the Court, although I note that the application appears to be framed more as an explanation as to why the application made on 9 January 2006 was made out of time.
“I don't have lawyer to file the application to FMC that's why my application out of time.”]
For the respondent I have:
1)A Response filed on 23 February 2006 asserting in the alternative that the Court lacks jurisdiction to hear the application as it was filed out of time and that, in any event, the Tribunal decision is not affected by jurisdictional error.
2)An outline of submissions.

Hearing Before the Court

At the hearing before the Court Mr. J. Mitchell of Counsel appeared for the respondent. The applicant appeared on his own behalf and was assisted by an interpreter in the Mandarin language.
At the hearing the Minister’s Counsel strongly pressed the issue of jurisdiction pursuant to s.477(1) of the Act and cross-examined the applicant on the issue of when he had actual notice of the Tribunal’s decision.
Subsequent to the hearing the Minister’s solicitors advised:
“As noted by Mr. Mitchell at the hearing, the Minister accepts that the application for an extension of time filed on 2 March 2006 was made within the 84 day time limit contained in s.477(2)(a) of the Migration Act 1958 (Cth), such that the Court has jurisdiction to consider the grant of an extension of time to file the substantive application filed on 9 January 2006. We have now been instructed that the Minister consents to the grant of the application for an extension of time and to the determination of the matter on a substantive basis.”
The Court’s consideration now proceeds on the basis that the applicant is granted an extension of time within which to make his application. The issue therefore remains as to whether the Tribunal’s decision is infected with jurisdictional error.
At the hearing the applicant was unable to add to what had been put in his written documents to the Court.
The applicant’s first stated complaint in his application is that the Tribunal failed to afford the applicant “natural justice”. This appears to be particularised by an assertion that the Tribunal applied the “incorrect test of persecution” by not accepting that the applicant suffered persecution for a Convention reason at the time of leaving China. The applicant makes reference to CB 67, which is part of a submission made on his behalf to the Tribunal by his then migration adviser (the full submission is reproduced at CB 62 to CB 71). I took the applicant's reference to CB 67 to be an assertion by the applicant that he had set out his fear of persecution, and notwithstanding his claims, the Tribunal did not arrive at a conclusion positive to him.
Dealing first with the applicant’s complaint that the Tribunal did not accept that he had suffered persecution for a Convention reason, I cannot see that there is any basis for the implied claim that the Tribunal did not understand the relevant test and therefore applied the “incorrect test of persecution”. The Tribunal's understanding of the relevant test is set out in its decision record (at CB 102.4 to CB 104.3). In its decision record (at CB 104.5) the Tribunal identified the relevant question that it was required to answer. Based on the applicant’s claims and evidence, it understood that the applicant claimed fear of persecution in China was for the Convention related reason of religion, and in particular because he was an adherent of Falun Gong. The Tribunal’s reasons for decision show that it did not accept significant aspects of the applicant's claims, and concluded that he either invented relevant events and/or was unable to provide sufficient detail to exhibit his knowledge of the practice of the Falun Gong. Nor did it find the evidence of the applicant's witnesses as helpful in assisting the applicant's position.
The Tribunal's ultimate conclusion that the applicant did not face a real chance of persecution for a Convention reason on return to China was open to it based on its findings as to the applicant's claims of past persecution, and its finding that the applicant had provided “only scant anecdotal evidence” of his involvement in Falun Gong activities since coming to Australia. The Tribunal gave reasons for these findings. I cannot see that the Tribunal misunderstood, or misapplied, the relevant test of persecution for a Convention reason.
Further, as the respondent submits, nor is the Tribunal required to uncritically accept the applicant's claims. The Tribunal plainly had difficulty with the applicant's credibility, but findings of fact including findings on credibility are a matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”)). The Tribunal made its findings as to credibility on its assessment of the applicant's knowledge of the practice of Falun Gong as presented at the hearing it conducted with him, and the implausible nature of the allegations to have been persecuted in the past. I cannot see that these findings were not open to the Tribunal on what was before it.
It is difficult not to see the applicant’s complaint in ground one as being anything more than a complaint that the Tribunal did not believe him. This is especially so in the absence of any further particularity from the applicant himself. I note in this regard the applicant was unable to provide anything further in support of his claims at the hearing before the Court. He relied simply on what his “friends” had drafted in his applications and affidavits on his behalf. It is trite, but the Court cannot review the merits of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
The other aspect of the complaint in ground one is that the Tribunal failed to afford the applicant “natural justice”. The application to the Tribunal, and the subsequent decision, were made after the introduction of s.422B to the Act. Division 4 of Part 7 of the Act exhaustively states the “procedural code” relating to procedural fairness as it applies to the applicant's case (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62).
The applicant was invited to a hearing before the Tribunal pursuant to s.425, and in accordance with the requirements of s.425A (CB 54 to CB 55). The applicant attended the hearing, and has put no evidence whatsoever before this Court as to what occurred at the Tribunal hearing. What is before the Court is what is contained in the Tribunal's decision record (CB 114.6 to CB 116.8). The Court can only proceed on the evidence before it (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
I note that from the Tribunal's account of what occurred at the hearing, the applicant was plainly put on notice during the course of the hearing as to the Tribunal’s concern with his evidence and the matters on which the Tribunal ultimately found against him on the issue of credibility:
1)At CB 115.3:
“The Tribunal put it to the Applicant that his explanation seemed superficial, but this did not lead the Applicant to focus on providing any more detailed o [sic: or] specific information…”
2)At CB 115.5:
“The Tribunal put it to the Applicant that his displayed level of familiarity with Falun Gong exercises did not appear consistent with over six years of devoted practice.”
3)At CB 115.7:
“The Applicant provided scant anecdotal evidence only of involvement in Falun Gong activities since coming to Australia.”
4)At CB 116.3:
“The Tribunal asked him to say what had been his plans in respect of securing protection and he claimed not to comprehend the question. He later said that he did not know how to apply for protection until after he was detained.
By apparent contrast, the Applicant showed at the RRT hearing that he found out how to change his student visa in 2001, how to seek employment from 2001 onwards and how to go to different worksites in spite of claimed language difficulties.”
Specifically, with s.424A of the Act in mind, the Tribunal's findings relating to the applicant’s “intention” of his evidence concerning alleged past persecution and that the applicant had only a limited, flawed and superficial familiarity with Falun Gong practice and philosophy, were based on the applicant's evidence at the hearing before the Tribunal, such that any such information came within the exception contained in s.424A(3)(b) from any requirement pursuant to s.424A(1) or (2).
Further, I also accept the respondent's submission that while the Tribunal made reference to information obtained from the applicant's witnesses, that the Tribunal's conclusions in this regard (CB 116) were not part of the reason for its decision to affirm the delegate’s decision. The Tribunal plainly rejected the applicant's application based on what he himself had put to the Tribunal at the hearing (and in writing through his migration agent – see CB 62 to CB 71), and the Tribunal's inability to reach the requisite level of satisfaction required by s.65 of the Act, that the applicant had been involved with Falun Gong, and that he was a regular Falun Gong practitioner. The observations flowing from the witness’s evidence were, as the respondent submits, to the effect that the witnesses were “not helpful to the applicant’s case because they were based on a premise”, the premise being that the applicant was a Falun Gong adherent. The Tribunal had already plainly rejected this assertion based on the applicant's own evidence.
In all therefore, I cannot see that there was any failure to comply with the requirements of Division 4 Part 7 of the Act. Nor in any event, even if natural justice at general law were available to assist the applicant, can I see on what is before the Court now, that the applicant would not have been aware (based on the Tribunal’s report of the hearing) of the Tribunal’s concerns about his evidence, and as these concerns related to his claims. In all therefore ground one of the application does not succeed.
The applicant's second ground is that the Tribunal's “conclusion about the lack of persecution” was done “on an improper and unreasonable basis”. This appears to be particularised by the assertion that the Tribunal lacked “probative evidential support” for its conclusion, relied on irrelevant considerations, and that there was an “inappropriate application of independent country information”.
To the extent that the use of the word “improper” may seek to imply bad faith on the part of the Tribunal, then no evidence whatsoever has been put before the Court to support, let alone sustain, such an allegation. In relation to the relevant test for bad faith on the part of the Tribunal I refer to Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [18] to [20]. Such allegations must be clearly alleged, supported by evidence and demonstrative of personal fault, or an absence of honesty, on the part of the decision maker. There is nothing to show the Tribunal did not bring an open mind to its consideration. Nothing of this nature is apparent on what is before the Court.
Further, I agree with Mr. Mitchell, that to the extent that the applicant seeks to assert that the Tribunal was unreasonable in coming to its ultimate conclusion about the lack of past persecution, then on what is before the Court the Tribunal's decision was derived from the adverse view that the Tribunal took of the applicant's evidence, leading it to conclude that the applicant invented relevant events. In addition that he gave evidence about his familiarity with Falun Gong which was “highly limited and flawed”. These were findings about the credibility of the applicant's claims which were plainly open to the Tribunal on the evidence before it. The Tribunal gave reasons for these findings. I cannot see that this is a situation such that no reasonable decision maker could have arrived at the decision made (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21). Findings of fact, of course, are for the Tribunal, including findings on credibility. As the relevant decision makers have been described in such circumstances as the “decision maker par excellence” (McHugh J. at [67] in Durairajasingam).
Even further, to the extent that the applicant complains that the Tribunal lacked probative evidential support for its conclusion, the Tribunal's decision was based to a large extent on what the applicant himself had put before it. The weight that a Tribunal gives to an applicant's evidence is, of course, a matter for it (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”)). Further, the Court (it is trite to say) cannot review the merits of the Tribunal's decision (Wu Shan Liang). I note even (for the applicant’s benefit) that there is no error of law in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth (1999) 197 CLR 510).

The applicant also complains, in this context, about the Tribunal's use of independent country information. This also a matter of fact for the Tribunal, and is not a matter giving rise to intervention by this Court (NAHI at [10]-[11]). Further, the applicant's complaint makes reference to the Tribunal having relied on irrelevant considerations. I agree with Mr. Mitchell that there is no particularity whatsoever provided by the applicant in his documents to the Court, and nor was the applicant himself at the hearing before the Court able to assist in any way in this matter. On the material before the Court now I cannot see that the Tribunal relied on any irrelevant considerations. I note, in any event, Mr. Mitchell’s submission that the onus of showing that an irrelevant consideration has been taken into account by the Tribunal is a burden for the applicant (R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at [49]-[50] and McPhee v Minister for Immigration Local Govt & Ethnic Affairs (1988) 16 ALD 77 at 80).
In this matter the Minister conceded that this Court has jurisdiction to consider the application. However, I cannot see, based on the applicant’s stated grounds, or otherwise, that the Tribunal's decision reveals jurisdictional error. The application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 29 March 2007