SZIYU v Minister for Immigration

Case •

[2007] FMCA 552

•

19 April 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 552
MIGRATION – Refugee – Falun Gong – adverse credibility – no bias – s.91R – country information – no lack of rational reasoning or logical foundation – no duty to investigate – no lack of understanding at hearing – no jurisdictional error – application dismissed.
Migration Act 1958, ss.424A, 91R, 36(2), 424, 425.
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZDZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1782
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
SZBQT v Minister for Immigration and Citizenship [2007] FCA 547
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Applicant: SZIYU
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1780 of 2006
Judgment of: Nicholls FM
Hearing date: 10 April 2007
Date of Last Submission: 10 April 2007
Delivered at: Sydney
Delivered on: 19 April 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr. B. O’Brien
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

  2. The application is dismissed.

  3. The applicant to pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1780 of 2006

SZIYU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed in this Court on 23 June 2006, and amended on 3 October 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 4 May 2006 and handed down on 25 May 2006 affirming the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Applicant’s claims to protection

  1. The applicant's claims to protection are set out in her application to the respondent's Department, reproduced in the Court Book (“CB”) at CB 1 to CB 25, and in supporting documents (CB 26 to CB 37), and  further in her application for review to the Tribunal (CB 51 to CB 54). The applicant claimed that she was a Falun Gong practitioner in China and as a result she was detained and feared further mistreatment if she returned to China.

Background

  1. The applicant is a citizen of China who arrived in Australia on


    24 January 2004. The applicant applied for a protection visa on


    28 January 2004. On 4 February 2004, a delegate of the respondent Minister refused her application, and on 9 December 2004 the applicant applied for review of that decision. The Tribunal (differently constituted at that time) handed down its decision on 8 June 2004. The applicant then lodged an appeal to this Court, which was dismissed on 30 September 2005. The applicant further appealed to the Federal Court.

  2. On 9 February 2006, by consent, the matter was remitted to the Tribunal for reconsideration according to law. On 4 April 2006, the applicant gave evidence before a differently constituted Tribunal. By letter dated 4 April 2006, the Tribunal wrote to the applicant (pursuant to s.424A) seeking her comments on certain matters which it said may cause it to draw an adverse credibility finding in relation to the applicant’s claims (CB 98 to CB 99). On 25 May 2006, the Tribunal affirmed the decision of the delegate not to grant a protection visa. The Tribunal’s decision record is reproduced at CB 104 to CB 123.

Tribunal’s reasons

  1. The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 119 to CB 122. The Tribunal found that the applicant did not impress as a truthful and credible witness and her evidence was “wholly unreliable” (CB 120.2). Specifically, the Tribunal found:

    1)At the hearing before it, the applicant was vague and unable to provide any information beyond the most banal generalities with regard to Falun Gong (CB 120.2 to CB 120.3).

    2)The applicant provided no evidence in support of her claim that she was ever a Falun Gong practitioner. It noted that at the hearing she was unable to carry out a number of Falun Gong exercises, recite relevant verses, and provide any meaningful information about Falun Gong literature and its philosophy (CB 120.5 to CB 120.8).

    3)On the basis of the impression it gained of her at the hearing and due to her lack of evidence that she was a practitioner (see above), that she was not a credible witness (CB 120.10 to CB 121.1).

    4)It did not accept she was a Falun Gong practitioner in China (CB 121.1 to CB 121.2).

    5)The chance that she would continue to practice Falun Gong if she returned to China was remote (CB 121.3 to CB 121.4).

    6)Section 91R(3) of the Migration Act 1958 (“the Act) applied, and on that basis, disregarded the applicant’s claims in relation to her current practice of Falun Gong, if any (CB 121.3).

    7)It did not accept the applicant was arrested and detained by the authorities. In coming to this conclusion it considered the following: Her belated revelation at an earlier hearing (before the previously constituted Tribunal) that she was detained in 2002 for 15 days, her subsequent resiling from that claim at the hearing before it by asserting that she was detained in July 1999 for two days after attending a Falun Gong demonstration in Beijing, and further, her lack of responsiveness at the hearing, and subsequently, her lack of response to its “s.424A notice” (CB 121.8 to CB 121.9).

    8)It did not accept the applicant was engaged in distributing Falun Gong related books, or that she was involved in a Falun Gong demonstration in Beijing or was dismissed from her work in 1999 (CB 122.1).

    9)In relation to her oral evidence, the applicant showed “a propensity to exaggerate and tailor her evidence in a manner which achieves her own purpose” (CB 122.2 to CB 122.3).

    10)In view of the applicant’s credibility, it did not accept the applicant suffered any harm amounting to persecution in China for reason of any Falun Gong practice (CB 122.3 to CB 122.4).

    11)On the basis of what was before it, that the applicant’s account of her activities in China lacked credibility (CB 122.5 to CB 122.6).

    Overall, the Tribunal was satisfied that the applicant did not have a well founded fear of persecution for a Refugee Convention reason and therefore affirmed the delegate’s decision not to grant a protection visa.

Application to the Court

  1. The applicant’s amended application to this Court, filed on 3 October 2006, seeks review on the following grounds:

    “1. THe Tribunal had bias against me anc (sic) could not consider my application fairly according the S91R of the Migration Act 1958. The Tribunal failed to assess the chance of my persecution because of my membership with Falun Gong on my return to (hina (sic). The Tribunal failed to assess the chance of the seriousness of the persecution to me on my return to (hina (sic) because of my involvement with Falun Gong in Australia.

    2. The Tribunal relied on wrong information for the consideration of my application. The Tribunal based on out to date information as independent information for the consideration of my application for a protection visa.

    3. The Trivunal’s (sic) decision was supported by sufficient evidence.”

Hearing Before the Court

  1. At the hearing before me, the applicant appeared unrepresented. She was assisted by an interpreter in the Mandarin language. Mr. B. O’Brien appeared for the respondent.

  2. The applicant submitted that she would be punished if she returned to China because the authorities would know that she had applied for protection in Australia. I explained to the applicant that the issue before the Court now was whether jurisdictional error could be discerned in the Tribunal’s decision such that the Court could consider whether the remedies she sought could be granted. The issue she was now seeking to raise was not put before the Tribunal.

  3. In these circumstances the applicant stated that she sought therefore to rely on her amended application to the Court, and also that the Court consider what was in her originating application.

  4. She submitted further that the Tribunal “misunderstood” her claims in relation to her Falun Gong practice in Australia and that (presumably at the hearing with the Tribunal), that she did not understand what the member was saying. Further, that his view was wrong and that he made “no investigation”.

  5. In all, taking into account the originating application to the Court, the amended application, and the applicant’s affidavit of 23 June 2006 filed in this Court on 23 June 2006, the applicant’s complaints about the Tribunal’s decision are:

    a)The Tribunal was biased.

    b)The Tribunal did not consider the application “fairly” according to s.91R of the Act.

    c)The Tribunal relied on “wrong information”, and its decision was based on “out of date” information.

    d)The Tribunal’s decision was not supported by “sufficient” evidence.

    e)The Tribunal’s decision was not based on rational reasoning or a logical foundation.

    f)The Tribunal failed to consider the claims, and made “no investigation” and failed to properly assess the chance of persecution on return to China.

    g)She was denied the opportunity of a fair hearing because she could not understand what the presiding member was saying at the hearing.

A: Bias

  1. With reference to relevant High Court authorities (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28) there is no evidence before the Court to suggest bias, or even that the well informed lay observer would apprehend bias on the part of the Tribunal or by its conduct. Nor for that matter can it be said on what is before me that the Tribunal acted in bad faith (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431). The applicant has put no evidence before the Court in support of this ground.

B: Section 91R of the Act

  1. The applicant also asserts the Tribunal failed to consider the application “according to s.91R”. This section restricts, for the purposes of the Act, the application of Article 1A(2) of the Refugees Convention, in its application to the consideration of refugee issues.

  2. The Minister submits the Tribunal’s decision did not turn in any relevant sense on concepts of “persecution”, or “serious harm”, so as to give rise to an issue of the interpretation and application of s.91R of the Act. I agree with this submission, to the extent that it refers to the concepts of “persecution” and “serious harm” in the context of ss.91R(1) and (2).

  3. However, I find it difficult to accept the aspect of the Minister’s submission to the extent it asserts the Tribunal’s decision did not turn, at least in part, on s.91R of the Act. In its decision record, the Tribunal states:

    “In the circumstances of this case, the Tribunal is satisfied that s.91R(3) of the Act applies. The Tribunal, therefore, disregards the applicant’s claims in relation to her current practice of Falun Gong, if any.” (CB 121.4)

    [This was, in context, with reference to whether she practiced Falun Gong in Australia].

  4. The applicant did not raise the issue of practising Falun Gong in Australia in her application for a protection visa (CB 18), or in her application for review (CB 53). The first reference appears in the report of the earlier constituted Tribunal of what occurred at the earlier hearing before it (as reproduced and adopted by the Tribunal (CB 108.6) in its decision record:

    “She was asked if she had been practicing Falun Gong in Australia. She stated that she has not been practicing Falun Gong in Australia, but that she is trying to find other Falun Gong groups so that she can practice with them. She stated that so far, she has not found an organisation here in Australia.” (CB 110.6)

  5. At the subsequent hearing before the Tribunal as reported by the Tribunal in its decision record (CB 112.3):

    “She was asked if she practised Falun Gong in Australia. She said no.”

  6. In its “Findings and Reasons” the Tribunal then stated:

    “The applicant replied no when specifically asked if she practised in Australia. However, later she made a passing remark that she had taken up the practise recently. Even if the Tribunal were to accept, which it does not, that the applicant is practising Falun Gong in Australia…” (CB 121.2)

  7. The Tribunal clearly and plainly rejected the applicant’s claim that she was a Falun Gong practitioner in China. It stated that it did not accept that she was a Falun Gong practitioner in Australia. In these circumstances it is difficult to understand, given that neither finding was attendant with any doubt, why the Tribunal then proceeded, after having rejected the notion that the applicant was a Falun Gong practitioner in Australia, to consider such a situation in light of s.91R(3). It noted that any conduct engaged in by the applicant in Australia (having previously found that she had not engaged in any such conduct), was such that s.91R(3) applied. The Tribunal found that it disregarded the applicant’s claim in relation to any “current” practice of Falun Gong, “if any” (CB 121.4).

  8. Putting to one side the seeming contradiction in its findings and focussing on the Tribunal’s treatment of what it described as the applicant’s “passing remark”, “that she had taken up the practice recently” (CB 121.2), the Tribunal noted that as it had rejected the applicant’s claim to have been a Falun Gong practitioner in China, notwithstanding the “passing remark”, it found that the chance of her practicing Falun Gong on return was “remote”. Further, it noted the provision of s.91R(3) and found that for the purposes of that section it could not be satisfied that the conduct implicit in the “passing remark” was otherwise than for the purpose of strengthening her refugee claim.

  9. Separating the two strands, the Tribunal found that the applicant did not practice Falun Gong in Australia. In context (CB 121.2 to CB 121.4) this finding included, and subsumed, the applicants “passing remark”, which the Tribunal said it did not accept. I cannot discern jurisdictional error in the Tribunal’s findings in this regard. Given her other evidence and a specific “no” as to whether she practiced Falun Gong in Australia, the Tribunal’s finding was open to it on what was before it.

  10. But even proceeding on the basis that the applicant had taken up the practice of Falun Gong recently in Australia, the Tribunal properly recognised that it was required to consider the provisions of s.91R(3) and it stated in its decision record (CB 121.3) that in assessing the applicant’s claims that it had to disregard such conduct unless the applicant was able to satisfy it that she engaged in such conduct otherwise than for the purpose of strengthening her claims to be a refugee.

  11. The Tribunal stated:

    “In the circumstances of this case, the Tribunal is satisfied that section 91R(3) of the Act applies. The Tribunal, therefore, disregards, the applicant’s claims in relation to her current practise of Falun Gong, if any.” (CB 121.4)

  12. The Tribunal’s decision record, as a reflection of its analysis, would have been clearer if following the first sentence in the extract quoted above, the Tribunal had plainly stated that it could not be satisfied that this conduct was engaged in by the applicant otherwise than for the purpose of strengthening his refugee claims.

  13. However, the absence of such a sentence is not, in my view, such as to reveal jurisdictional error on the part of the Tribunal. When the extract above is read in context of what immediately precedes it, and also in the context of the Tribunal’s previously stated express statement (at CB 121.1) that it did not find her a “credible witness”, the meaning of what the Tribunal was seeking to convey (at CB 121.4) is that with reference to s.91R(3) even if the applicant had recently taken up the practice of Falun Gong, it could not be satisfied that she had done so otherwise than for the purpose of strengthening her claim. In these circumstances also, no jurisdictional error is revealed on what the Tribunal has done.

C: “Wrong” Information

  1. The applicant also asserts that the Tribunal relied on “wrong”, and “out of date” independent country information. The applicant was unable to provide any particulars in support of this claim. In any event, I accept the Minister’s submission, with reliance on NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] that the assessment of country information is a factual matter for the Tribunal (NAHI at [13]) and that this includes its interpretation and accuracy, and the weight to be accorded to it.

  2. Further, in SZDZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1782, Graham J. cited NAHI (at [20]) and found that the age of country information goes to the issue of the accuracy of the information and therefore is a matter for the Tribunal.

D: “Insufficient Evidence”

  1. The applicant also complains that the Tribunal’s decision was not supported by sufficient evidence, or in the alternative, was made with insufficient evidence. I agree with the Minister that, in the circumstances of this case, this ground does not succeed. It is for the applicant to advance the evidence in support of her application. The Minister relies on NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18] to [21]).

  2. Section 65 of the Act requires that the Tribunal, as the relevant decision maker, reach the requisite level of satisfaction that the applicant, in the case of a protection visa application, meets the requirements of s.36(2) [ Article 1A(2) of the Refugees Convention] such that a protection visa must then be granted. As Kirby J set out in Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559 at 596, the relevant facts to support an application to the Tribunal need to be supplied by the applicant in as much detail as necessary to establish the facts. It is for the applicant to make out the case. It is not for the Tribunal to search for evidence that the applicant is not a refugee. It is whether on the evidence before it, the Tribunal can reach the requisite level of satisfaction that the applicant comes within the Convention definition of a refugee. On what was before it, the Tribunal could not be satisfied that the applicant’s claims, in critical aspects, were credible. Nor for that matter, does s.424 of the Act oblige the Tribunal to seek out further evidence or information in the hope of making out the applicant’s claims.

  3. As the Minister submits the Tribunal’s findings were open to it on the evidence before it. It made a finding on the applicant’s credibility which was consistent with its function as the decision maker “par excellence” (McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67]) and for which it gave reasons.

E: Irrational, Lack of logical foundation.

  1. The applicant’s claim in the originating application to the Court that the Tribunal’s decision was not based on reasoning which was rational or had a logical foundation, is also not made out. The applicant does not say what was not rational or lacking in a logical foundation, While in one part (as set out above), the Tribunal adopted what could be seen as an inconsistent approach, it is not such as to say its analysis was not reasoned, or lacked a logical foundation. In any event, a lack of a logic by the Tribunal in drawing an inference of fact (whether she practiced Falun Gong in Australia or not) does not of itself amount to an error of law (see SZBQT v Minister for Immigration and Citizenship [2007] FCA 547 per Rares J. at [22] and the further reference there to NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22] to [29]) that illogical reasoning of itself does not constitute an error of law or jurisdictional error. Nor for that matter can jurisdictional error be derived from a wrong finding of fact (Abebe v The Commonwealth (1999) 197 CLR 510 at [137]).

  2. In all and simply, the Tribunal did not believe the applicant’s evidence at the hearing. It gave her the opportunity for comment on inconsistencies (both at the hearing and in writing). It proceeded to give reasons for its findings which were clearly open to it.  I cannot see any irrational reasoning or lack of a logical foundation.

F: Proper Consideration of claims; “No Investigation”.

  1. The complaint that the Tribunal failed to consider the applicant’s claims properly can only be seen in light of the above and in all the circumstances before the Court as an expression of dissatisfaction with the outcome of the Tribunal’s consideration. To the extent that this seeks merits review, this Court cannot assist the applicant (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

H: Lack of Understanding at the hearing

  1. The applicant also complained before the Court that she could not understand what the presiding member was seeking at the Tribunal hearing. To some extent this may be a complaint that the applicant was denied an opportunity of putting forward her claims at the hearing, in the sense that such a denial would be a failure of the Tribunal’s obligation to provide a hearing pursuant to s.425 of the Act. The applicant has put no evidence whatsoever before the Court to support what she assets occurred at the hearing. Nor does she appear to complain about the level of interpreting that was available to her (I note that the applicant did make and file an affidavit in these proceedings and was referred to Counsel of the panel of the Court’s Legal Advice Scheme). In any event, in the absence of any evidence to support this assertion, it is not open to this Court to proceed on the applicant’s mere assertion.

  2. In all therefore I cannot discern jurisdictional eror in the Tribunal’s decision. The application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  19 April 2007

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