SZIFJ v Minister for Immigration - [2009] FMCA 501

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 501

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s decision is affected by apprehended bias.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant:

SZIFJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 206 of 2009

Judgment of:

Emmett FM

Hearing date:

20 May 2009

Date of last submission:

20 May 2009

Delivered at:

Sydney

Delivered on:

27 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr R. Killalea

Solicitors for the Applicant:

Mr B. Bian, City Law

Counsel for the Respondent:

Ms T. Wong

Solicitors for the Respondent:

Ms L. Weston, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 206 of 2009

SZIFJ

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 dated 30 December 2008 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 4 December 2001 having departed legally from Hong Kong on a passport issued in his own name and a visa issued on 19 November 2001.
On 20 December 2001, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 13 March 2002, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 4 April 2002, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 22 April 2003, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of that decision and, on 25 August 2008, Federal Magistrate Nicholls remitted the matter to the Refugee Review Tribunal for determination according to law.
On 30 December 2008, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 28 January 2009, 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 (“the Convention”).
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 Applicant’s application for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by Chinese authorities by reason of his practice of Falun Gong in China. The Applicant claimed he had been warned, detained and required to attend re-education classes by the government. He claimed he was only released after conceding Falun Gong is illegal. The Applicant claimed he was again detained in August 2001 for one month and informed on his release that he could be detained by the police at will.
On 7 February 2002, the Applicant attended an interview with the Delegate and provided a second statement expanding on his previous claims and making new claims. In particular, the Applicant stated that:
a)in November 1999 he led a group of practitioners in China, was detained for questioning by Chinese authorities and was severely tortured and beaten resulting in injuries;
b)in May 2000 he was arrested, detained by Chinese authorities, tortured and persecuted and released as a result of bribery of authorities; and,
c)in August 2001 he was again arrested and detained requiring his parents to sell their assets to procure his release.
The Applicant also provided to the Department documents purporting to relate to his arrests and medical treatment.

The Delegate’s decision

On 13 March 2002, 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 Convention.
The Delegate found that the Applicant was unable to provide a “plausible or coherent account of his initial involvement in Falun Gong” and found that the Applicant had fabricated those claims. The Tribunal had “serious concern about the applicant’s credibility.”

The Tribunal’s review and decision

On 4 April 2002, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 22 April 2003, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa.
On 25 August 2008, Nicholls FM found that the decision of the refugee Review Tribunal, differently constituted, was affected by jurisdictional error and remitted the decision to the Refugee Review Tribunal for determination according to law.
On 25 September 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 3 November 2008 to give oral evidence and present arguments.
The Applicant provided further materials in support of his review application, including:
a)Media articles and country reports about the treatment of Falun Gong practitioners in China;
b)Photographs;
c)A further statement dated 17 October 2008;
d)Submissions in a letter from the Applicant’s migration agent dated 20 October 2008; and,
e)Letters in support from fellow Falun Gong practitioners in Australia.
On 3 November 2008, the Applicant gave evidence at the hearing before the Tribunal at which the Applicant expanded upon his written claims.
On 7 November 2008, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it. This letter requested that the Applicant provide any such comments by 21 November 2008.
On 20 November 2008, the Applicant’s migration agent wrote to the Tribunal requesting access to the Applicant’s Departmental file, a copy of a Department of Foreign Affairs and Trade Report and an extension of time in which to consider this documentation if access was granted.
By letter dated 21 November 2008, the Tribunal provided the documents and advised the Applicant’s migration agent that the request for an extension was refused, but that the Tribunal would not make a decision on the review before 1 December 2008.
On 21 November 2008, the Applicant’s migration agent wrote to the Tribunal enclosing a statutory declaration made by the Applicant on 21 November 2008. The statutory declaration purported to comment on those matters raised by the Tribunal in its letter dated 7 November 2008.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The Tribunal summarised in its decision record the Applicant’s written claims to the Department and his oral evidence to the first Refugee Review Tribunal. The Tribunal then summarised the Applicant’s oral evidence given to it on 3 November 2008 as well as further written statements. The Tribunal identified the further material which the Applicant had provided in support of his application.
In its decision record, the Tribunal noted in some detail the exchanges that it had with the Applicant about his claims. The Tribunal noted matters of concern about the Applicant’s evidence that it put to the Applicant and noted his responses. The Tribunal also noted country information to which it had regard and which it put to the Applicant, particularly, that information that was inconsistent with the Applicant’s claims. The Tribunal noted the Applicant’s responses.
The Tribunal noted that it carefully considered the Applicant’s evidence orally and in writing, including his responses to the Tribunal’s letter dated 7 November 2008. However, for reasons provided by the Tribunal, the Tribunal comprehensively rejected the Applicant’s claims of ever having been a Falun Gong practitioner in China, or ever having been subjected to harm in China for reasons arising from the perception he was in any way connected with Falun Gong practice.
The Tribunal accepted the Applicant’s claims to have participated in Falun Gong practice, study and protest activities at various times since his arrival in Australia. The Tribunal also had regard to supporting letters from fellow Falun Gong practitioners in Australia and accepted that the authors of those letters may consider the Applicant to be a genuine Falun Gong practitioner. However, the Tribunal found that it could not be satisfied that the Applicant had participated in Falun Gong activities in Australia for any reason other than to strengthen his claim to be a refugee, having regard to the Tribunal’s adverse credibility findings about his claims of having been a practitioner in China and having been detained for that reason.
Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

The Applicant was represented before this Court by Mr Killalea, of counsel.
At the commencement of the hearing, by consent, the Applicant was given leave to file in Court and rely upon the ground identified in an amended application filed by him on 20 May 2009. The ground of the amended application is expressed as follows:
“The Refugee Review Tribunal erred in the exercise of its jurisdiction for the reason that comments in the decision were such as to cause reasonable apprehension on the part of a lay observer that the judgment was affected by bias”
Counsel for the Applicant submitted that the language used by the Tribunal in not being satisfied that the Applicant had engaged in Falun Gong related activities in Australia for any reason other than to strengthen his claims to be a refugee, demonstrated that the Tribunal had approached its fact finding task in respect of the Applicant’s claims in a manner that indicated apprehended bias.
The passage from the Tribunal’s decision record relied on by counsel for the Applicant in support of this submission is as follows:
“As the applicant’s claims to have participated in Falungong practice, study and protest activities since his arrival in Australia, the tribunal accepts that he has done these things at various times. The Tribunal also accepts that Falungong practitioners who have provided supporting letters to the Tribunal may consider him to be a genuine practitioner. However, in China or having been detained there for that reason, it cannot be satisfied that he has participated in Falungong related activities in Australia for any reason other than to strengthen his claim to be a refugee.” [Emphasis added]
Counsel for the Applicant submitted that by using the word “cannot” to express its lack of satisfaction, objectively construed, the Tribunal’s language inferred that the Tribunal’s mind was not capable of being open to persuasion irrespective of any evidence before it to the contrary. Counsel for the Applicant submitted that the Tribunal had accepted that the authors of letters supporting the Applicant’s practice of being a Falun Gong practitioner in Australia may have considered the Applicant to be a genuine Falun Gong practitioner. Counsel for the Applicant submitted that, in the light of that evidence, there was evidence before the Tribunal to suggest that the Applicant may have been a genuine Falun Gong practitioner in Australia, yet, the Tribunal found that, because of its adverse credibility findings in respect of the Applicant’s claims of practice and persecution in China, “it cannot be satisfied” that the Applicant engaged in those practices other than for the purposes of strengthening his claims.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered and explored the Applicant’s claims in great detail. For the reasons it identified in its decision record and which are not challenged by the Applicant, the Tribunal comprehensively rejected all the Applicant’s claims relating to practice of Falun Gong in China and any persecution for that reason. Counsel for the Applicant acknowledged that the reasons why the Tribunal disbelieved the Applicant were “soundly based in the applicant’s oral and written evidence and are not challenged by the applicant.”
The principles relating to apprehended bias are clear and well established. Apprehended bias will be established in circumstances where the parties or the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind in determining the dispute before it (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 (“Jia”) at [111] per Kirby J).
Counsel for the Applicant also relied on the following passage in Jia at [185] per Hayne J, particularly relating to the Tribunal’s obligation to bring fresh consideration to an issue:
“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.” [Emphasis added]
However, a fair reading of the Tribunal’s decision record as a whole makes clear that Mr Killalea’s contention that the Tribunal failed to give fresh consideration to the issue of the Applicant’s motivation or purpose in engaging Falun Gong activities in Australia is not made out.
The Tribunal’s reasoning of the Applicant’s claims of conduct in Australia was set out in some detail as follows:
“As to the events since the applicant’s arrival in Australia, it is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.
As to the applicant’s claims to have participated in Falungong practice, study and protest activities since his arrival in Australia, the tribunal accepts that he has done these things at various times. The Tribunal also accepts that Falungong practitioners who have provided supporting letters to the Tribunal may consider him to be a genuine practitioner. However, in light of the Tribunal’s findings that he has not been truthful about having been a practitioner in China or having been detained there for that reason, it cannot be satisfied that he has participated in Falungong related activities in Australia for any reason other than to strengthen his claim to be a refugee.
The tribunal considers plausible that he has added his name and possibly at least one of his family members’ names to a website and that on it he has distanced himself formally from the Chinese Communist Party. However, on this particular point the Tribunal considers this gesture to have been self-serving and to have been done for the purpose of strengthening his claim to be a refugee. It was done in the knowledge that the CCP would remain unaware of it. Further, the Tribunal does not accept that it was an expression of a genuinely held political opinion.
The applicant has not satisfied the Tribunal that he engaged in the above conduct in Australia other than for the purpose of strengthening his claim to be a refugee. Therefore that conduct must be disregarded by the Tribunal in determining whether he has a well founded fear of being persecuted for a Convention reason in China. His claims about his activities in Australia must be disregarded by the Tribunal.” [emphasis added]
To focus on the use of the word “cannot” in the way contended for by counsel for the Applicant, would be to approach the construction of the Tribunal’s reasons with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272). It is well established that such an approach is inappropriate in construing the reasons of an administrative decision-maker.
In my view, read in the context of the Tribunal’s reasons, use of the word “cannot”, is doing no more than emphasising the state of satisfaction reached by the Tribunal in respect of the Applicant’s claims.
A fair reading of the use of the word “cannot” in the context of the Tribunal’s reasons does not suggest that the Tribunal did not bring fresh consideration to the issue. Quite to the contrary. Having comprehensively rejected the Applicant’s claims, the Tribunal could have chosen to have ignored the Applicant’s supporting documents altogether (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Applicant S20/2002”)). However, the Tribunal both considered and accepted the content of the Applicant’s supporting documents and accepted that the authors may have considered the Applicant to be a genuine Falun Gong practitioner.

The Tribunal was entitled to have regard to the comprehensive nature of its adverse credibility findings in evaluating the Applicant’s evidence as to the purpose for his Falun Gong activities in Australia. The Tribunal’s process of reasoning was logical and supported by authorities (Applicant S20/2002 at [7]).
A fair reading of the Tribunal’s decision record makes clear, that the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, the ground of the amended application is not made out.

Conclusion

A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 should be dismissed with costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 27 May 2009