SZJGH v Minister for Immigration
[2007] FMCA 1769
•26 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJGH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1769 |
| MIGRATION – Review of Refugee Review Tribunal decision – visa – protection visa – refusal – not open to the Court to review the Tribunal’s findings of fact – allegation of bias not proven. |
| Migration Act 1958, s.91R |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZJGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1433 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 September 2007 |
| Date of last submission: | 26 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1433 of 2007
| SZJGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the People's Republic of China. He alleges that while in China he practised Falun Gong and secretly printed and distributed foreign media releases about the persecution of Falun Gong practitioners in China and that this subsequently led to him being abducted at work by police, his home ransacked and him being sentenced to a period of detention in a labour camp. The applicant left China for Australia, where he alleges he made contact with Australian Falun Gong practitioners. The applicant claims to fear persecution in China because of his practice of Falun Gong.
After his arrival in Australia the applicant lodged an application for a protection visa. This was refused by the minister's delegate on 17 March 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. The first decision of the Tribunal, which was signed on 5 July 2006, was quashed by order of this Court on 6 December 2006. (Court Book (“CB”) page 93).
In these judicial review proceedings, this Court cannot rehear the applicant's application for a visa. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error, as that is the only basis upon which the Tribunal's decision may be set aside.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged by the applicant in support of his claim for a protection visa are set out on pages 4-9 of the Tribunal's decision,
(CB 121-126). Relevantly, they are, in summary:
a)the applicant met a Falun Gong practitioner in January 2000, who was a local leader of Falun Gong in Liaoning and actively involved with protests. This practitioner told the applicant about Falun Gong when they met in January 2000 and the applicant started to practise Falun Gong under her instruction;
b)he became a member of several underground Falun Gong groups in Liaoning, organised regular collective practice and discussion with other groups and secretly handed out the foreign media releases referred to earlier in these reasons;
c)the local PSB found out that the applicant was a local Falun Gong leader and on 17 December 2004 he was abducted at work by local police, his home ransacked and he was sent to a labour camp. He was also warned not to practise Falun Gong;
d)after release from the labour camp, the applicant continued to practise Falun Gong but the local PSB "warned him";
e)a friend in Hong Kong offered to help the applicant apply for a tourist visa to Australia but first helped him get a passport, through some unparticularised relationship in Liaoning, and
f)upon arrival in Australia, the applicant immediately contacted the Australian Falun Gong association, who suggested that he apply for a protection visa.
At the hearing before the second constituted Tribunal, which took place on 6 March 2007, the applicant gave evidence which was in some respects at variance with the information which he had provided in the material supplied with his protection visa application form. For instance:
a)the applicant said that he came to Australia specifically to claim protection;
b)he said he came to know about Falun Gong practice in 2000 and commenced to practise in 2003 but between those years he was just a beginner and Falun Gong was like a hobby for him;
c)the applicant formally joined Falun Gong in 2003, when he became a "key member" of a local Falun Gong association in Tieling city; and
d)the applicant had come to Australia to search for a senior Falun Gong leader but could not find him and his Falun Gong practice in Australia, which consisted of a small number of attendances at Darling Harbour and Canberra, was almost the limit of his Falun Gong practice once he had arrived in this country.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967
(“Convention”).
The Tribunal's decision was based on the following findings and reasons:
a)the Tribunal did not accept as true:
i)that the applicant practised Falun Gong in China and/or that he was a genuine Falun Gong practitioner in Australia;
ii)that he had the association with Falun Gong in China that he claimed; or
iii)that he was a key member or local leader or participated in the Falun Gong activities which he claimed he did whilst he was in China;
b)consequently, the Tribunal did not accept that:
i)the applicant was detained at any time for the reasons he claimed or that the Chinese authorities investigated him or made inquiries about him because of his Falun Gong activities or his association with Falun Gong;
ii)the applicant was in hiding at any time, in or outside China, because he was afraid of harm due to his Falun Gong activities;
iii)he had difficulties obtaining any of his travel documents for that reason;
iv)the applicant's family members were harassed or harmed in China because of his association with Falun Gong; or that
v)the applicant left China and/or fears to return there for the reasons he claims;
c)the Tribunal found that the applicant had invented these claims to assist his application for a protection visa;
d)the Tribunal found that the applicant gave untruthful evidence to the Tribunal and was not a credible witness;
e)the Tribunal found that the applicant was not, in Australia or in China, a genuine Falun Gong practitioner;
f)the Tribunal found that the applicant would not practise Falun Gong if he returned to China;
g)in the Tribunal's view, the applicant attended Falun Gong activities in Australia to assist his application for a protection visa and it was not satisfied that he engaged in such activities otherwise than for the purpose of strengthening his claim to be a refugee, which led the Tribunal to disregard that conduct, pursuant to s.91R(3) of the Migration Act 1958 (“Act”); and
h)in the Tribunal's view, there was no plausible evidence before it that the applicant had suffered, or would suffer, persecution because of his imputed political opinion, his religion, because he is a member of a particular social group, or for any Convention reason.
Proceedings in this Court
The grounds of the application to this Court were pleaded as follows:
i)The Tribunal said that there was no plausible evidence before it that I have suffered or will suffer persecution in my country, the Tribunal made error in this finding.
ii)Because of the bias from RRT, the Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.
iii)The Tribunal failed to consider my claims according to s.91R of the Migration Act 1958.
At the hearing before the Court today, the applicant raised a further issue, saying that the inconsistencies in relation to dates and times in the information he gave to the Tribunal was as a result of nervousness and the pressure resulting from the persecution he claimed to have suffered in China.
Dealing with each of these grounds in turn:
No plausible evidence
This ground challenges the Tribunal's conclusions of fact and in particular the Tribunal's finding that there was no "plausible" evidence before it of the persecution claimed by the applicant. Findings of fact and, in particular credibility findings, are matters reserved to the Tribunal. It is not for this Court to review the Tribunal's findings of fact, except to the extent that they might relate to jurisdictional facts, which is not the case here. Both of the issues raised by the applicant under this first asserted ground of review are matters which are not susceptible to reconsideration by the Court in judicial review proceedings such as these.
As the determination of these issues is reposed in the Tribunal and no error of jurisdictional fact has been asserted by the applicant, no jurisdictional error has been demonstrated in relation to this asserted ground of review.
Bias
The applicant has not articulated what sort of bias he asserts may have affected the Tribunal's determination processes. To the extent that he might be suggesting that the Tribunal was actually biased, the decision of the High Court in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 demonstrates that the bias must be a pre‑existing state of mind which disables the decision‑maker from undertaking, or renders him or her unwilling to undertake, any, or any proper, evaluation of the materials before him or her which are relevant to the decision to be made.
There is nothing before the Court of an evidentiary nature which touches on the question of actual bias, other than the Tribunal's decision record. To make out an allegation of bias requires very clear evidence. Not only is there no clear evidence specifically adduced to support an allegation of actual bias but a consideration of the Tribunal's decision record provides no support either. Consequently, to the extent that the applicant alleges actual bias against the Tribunal, the allegation has not been made out.
In the event that the applicant alleges apprehended bias in the way the Tribunal conducted itself during the hearing, no evidence of the conduct of the Tribunal hearing, other than what appears in the Tribunal's decision record, is before the Court. For instance, no transcript of the proceedings before the Tribunal has been put before the Court which might assist it to conclude that a hypothetical fair‑minded layperson, who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias on the part of the Tribunal, might reasonably apprehend that the Tribunal might not have been bringing an impartial mind to the resolution of the questions to be decided: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Consequently, on the evidence before the Court, there is nothing to support the claim that a finding of apprehended bias should be made in the circumstances in these proceedings.
The applicant alleges that the failure by the Tribunal to refer to independent information when considering his application demonstrates bias. However, because the basis of the applicant's claim – namely, that he had a well-founded fear of persecution in China by reason of his practice of Falun Gong – was rejected by the Tribunal, there was no reason for it to consider the independent information to which the applicant makes reference, whatever it might have been. Because there was no reason to consider independent information, the fact that the Tribunal did not refer to it cannot support a conclusion that the Tribunal was biased. The fact that the information was not referred to is not demonstrative of a closed mind, simply that the information was not necessary to the decision.
Consequently, the second asserted ground of review is not made out.
Section 91R
Contrary to the applicant's assertion, the Tribunal did consider his claim in accordance with at least one part of this section. That is to say, the Tribunal found that it was not satisfied that the applicant's conduct in Australia in relation to his Falun Gong practice was undertaken otherwise than for the purpose of strengthening his refugee claim. The Tribunal properly considered and properly applied s.91R(3), and no jurisdictional error is demonstrated in this connection.
As to the two other subsections of s.91R, their operation depends on a finding that there has been persecution of the applicant. However, on this occasion the Tribunal concluded that the applicant had not been persecuted in China and had no well-founded fear of persecution for a Convention reason were he to return to China. Consequently, there was no work for s.91R(1) or 91R(2) to perform and the fact that the Tribunal did not refer to those subsections does not demonstrate jurisdictional error on its part.
Inconsistencies
Today the applicant said that the inconsistencies in his evidence to the Tribunal arose out of nervousness. The relevant inconsistency is to be found in the letter sent by the Tribunal as originally constituted, dated
7 June 2006 (CB 72-73), and the applicant's response to that letter, dated 1 July 2006 (CB 74).In the Tribunal's letter of 7 June 2006, a number of inconsistencies were put to the applicant arising out of differences between his evidence before the Tribunal and the information contained in his protection visa application documents. In his reply of 1 July 2006, the applicant endeavours to explain certain issues but does not suggest in that letter that the inconsistencies identified by the Tribunal arose out of nervousness or any other problem in the giving of evidence at the Tribunal hearing.
These inconsistencies were raised with the applicant by the Tribunal as constituted on the second occasion and the Tribunal's record at CB 128 discloses nothing which would suggest that the applicant had raised with the Tribunal that he had been nervous on the first occasion, or that any of the inconsistencies arose out of the consequences of the persecution he alleges he had suffered in China. Nor is there anything to suggest that the applicant made any such allegation to the Tribunal as constituted that second time. Further, there is no evidence before the Court to suggest that the applicant raised such an issue with the Tribunal after the second Tribunal hearing.
As a result, there can be no real issue that the applicant had been denied a real and meaningful invitation to a hearing or that he had been disabled in any way from giving the evidence or making the arguments which he wished to give or make.
That being so, this asserted ground of review devolves to a fact‑finding issue on the part of the Tribunal. In that regard the Tribunal said this:
When the present Tribunal raised this inconsistency with the applicant at the hearing he said that he must have mixed up the dates when he wrote the letter. The Tribunal does not accept that this is a reasonable or plausible explanation for the inconsistency in his evidence given the importance and seriousness of this event and given that the July 2006 letter was written as a considered response to a letter to him from the previous Tribunal. (CB 128)
This finding was one which was open to the Tribunal to make and is not one which this Court is empowered to reconsider or overturn. Consequently, no jurisdictional error has been demonstrated in relation to the final asserted round of review.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 5 November 2007
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