SZJGM v Minister for Immigration
[2007] FMCA 190
•1 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJGM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 190 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 422B, 424, 424A, 425 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 NACB v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 |
| Applicant: | SZJGM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2374 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 February 2007 |
| Date of Last Submission: | 12 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms. S. Kaur-Bains |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2374 of 2006
| SZJGM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 25 August 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 1 August 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 16 March 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
According to her protection visa application [the applicant] is a nurse by profession and she was employed at a medical centre from 1996 until 2005. … The applicant is 49 years old and comes from Shandong in China. (Court Book (“CB”) 104)
The applicant claims to have been persecuted and to fear future persecution in China because she is a Falun Gong practitioner.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 5-17 of the Tribunal’s decision (CB 104-116). The applicant gave different versions of events in the statement attached to her visa application form, her adviser’s written submission to the Tribunal and in her oral evidence to the Tribunal. In general terms:
a)the applicant claims to have started practising Falun Gong shortly after it was banned in 1999. One day when she was attending a study session at a local hotel, the police went to the hotel and arrested many practitioners. When questioned at the time, the applicant replied that she was “just looking”, so the police let her go;
b)the applicant claims that at one time she had an employee who worked for her as a driver for a month, whose wife was arrested in 2000 because she practised Falun Gong;
c)because of the government’s banning of Falun Gong, the applicant began to practise it in secret. Sometimes she went to the house of one of the practitioners or they would go to the country together. She claims that for several weeks, she and her Falun Gong colleagues practised Falun Gong in her home;
d)in August 2003, police went to the applicant’s house to give her notice that if they heard that she practised Falun Gong again, they would sentence her to jail for up to ten years. At the same time, one of the applicant’s colleagues was arrested and imprisoned; and
e)the applicant was forced to declare separation from Falun Gong;
or alternatively:
f)because the government had banned it the applicant stopped learning and practising Falun Gong until around April 2004, when she met two women who began to talk to her about Falun Gong. They gave her a Falun Gong book and CD, and went to her house to teach her how to practise Falun Gong. The applicant still has their contact numbers. The applicant said she was in fear when practising Falun Gong in China and her husband also wanted her to stop practising; and
g)she felt as though under the circumstances she had no other choice but to go abroad to avoid the danger. On 7 December 2005 the applicant was granted a visa to travel from China to Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in 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 which are paraphrased in the first respondent’s outline of submissions as follows:
The Tribunal found the applicant lacked credibility and her material claims were not accepted. The reason for the Tribunal’s adverse view of the applicant’s credibility was the inconsistencies between the Protection Visa statement, the statement provided by the applicant’s adviser, and the evidence the applicant gave at the hearing. The Tribunal comprehensively sets out these reasons on pages 117 to 118 of its decision.
In respect of the applicant’s involvement with Falun Gong activities in Australia the Tribunal disregarded this conduct as the Tribunal was not satisfied that the applicant had engaged in that conduct otherwise than for the purposes of strengthening her claim to be a refugee (CB: 119, last paragraph). In fact the Tribunal found the applicant had engaged in the activities in Australia for the purposes of enhancing her claim to be a refugee (CB119, last paragraph). In those circumstances section 91R(3) of the Migration Act required the Tribunal to disregard the conduct in Australia.
In essence, the Tribunal found that the applicant lacked credibility and that there were contradictions, inconsistencies and implausibilities in her evidence. On the evidence, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner or that she practised Falun Gong in China, as she had claimed (CB 117). Thus, the Tribunal did not accept the applicant’s claims to fear persecution in China on the grounds of her practice of Falun Gong.
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal took into account an irrelevant consideration;
b)the Tribunal failed to accord the applicant procedural fairness; and
c)the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
In her application, the applicant provided two paragraphs of particulars which were not expressly referable to any particular one of the asserted grounds of review. They were:
The applicant’s migration agent had advised the Department that the first statement attached to her initial protection visa application was not prepared by her, and that she had no knowledge of claims contained in the initial application. The Department’s decision also gave no consideration to the first statement attached to her initial application. However, the Tribunal repeatedly referred to the first statement when forming its decision and on the basis of the conflicts between the first statement and her later claims, the Tribunal concluded that the applicant lacks credibility and her claims can not be accepted. The RRT took into account irrelevant information when making the decision.
The applicant claimed that she made enquiries in February 2006 as to where she could meet up with Falun Gong practitioners. She also claimed that prior to her meeting up with Mr Zeng and his group she also practiced [sic] in front of the Chinese Consulate. The Tribunal did not accept such claims. The Tribunal rejected the claims on no reasonable grounds.
At the hearing in this Court the applicant also submitted that:
(a)at the hearing before the Tribunal she had limited time, money and English; and
(b)she was a genuine Falun Gong practitioner and had told the truth to the Tribunal.
I should also record that during her oral submissions to the Court the applicant was clearly emotional and, at times, appeared overwrought. At one point of significant emotion in her address, the applicant offered me payment for a decision in her favour. This was said in open court and I dismissed it in open court. Clearly the applicant was distressed at the time and I have put those remarks of hers out of my mind when considering my decision in these proceedings.
Claim of limited time, money and English when before the Tribunal
With regard to this additional claim made in submissions at the hearing in this Court it is relevant to note that the applicant was represented by an adviser at the Tribunal. Moreover, she had been assisted by that adviser since February 2006. At CB 35 is a form “Appointment of a migration agent” which discloses the appointment of that migration agent. The agent:
a)wrote on behalf of the applicant to the Department; (CB 39-41)
b)is nominated in the applicant’s application for review submitted to the Tribunal; (CB 60-64)
c)wrote to the Tribunal on two occasions, those letters being reproduced at CB 85-89 and CB 90-92; and
d)was assisting the applicant at the Tribunal hearing according to the “RRT Hearing Record” reproduced at CB 74 and as confirmed by the Tribunal’s comments to this effect in its decision at CB 107.
As to limited time before the Tribunal, the hearing record reproduced at CB 74-75 indicates that the hearing commenced at 11:05am and concluded at 1:10pm. There were only two witnesses, the applicant and a Mr Zeng and, without evidence to the contrary, there is nothing before me to suggest that the time taken by the hearing was not adequate.
As to the limited quality of the applicant’s English, it is to be noted that the Tribunal’s hearing record records that the applicant was assisted by a Mandarin interpreter.
As to lack of money this is not a basis on which the Tribunal’s decision could be reviewed.
A fundamental weakness in this ground of the application is the applicant’s failure to adduce any evidence to support her submission which is, impliedly, that she was not afforded a proper hearing. A hearing pursuant to an invitation to attend a hearing issued under s.425 must be a real and meaningful one. No transcript of the hearing was placed before the Court and nor was any evidence to impugn the effectiveness or accuracy of the interpreter services at the hearing. The Tribunal’s hearing record together with the detail contained in the Tribunal’s decision indicate that the hearing was not an empty gesture and, in the absence of contrary evidence I find that this ground has not been made out.
A genuine Falun Gong practitioner
The other ground first advanced at the hearing before this Court was that the applicant was a genuine Falun Gong practitioner. In essence, this is an invitation to the Court to review the Tribunal’s decision on this aspect of the applicant’s claim. The Court is not entitled to do this, decisions on factual issues being reserved to the Tribunal. As was said in Abebe v Commonwealth (1999) 197 CLR 510 at 579-580 [195] by Gummow and Hayne JJ:
The submission that the Tribunal had failed to take into account a relevant consideration – described as being whether the applicant had been raped in detention – appeared, in the course of argument, to slide sometimes to a contention that the Tribunal should have concluded that the applicant had been raped. We need not, and do not, express any concluded view on whether the first form of the contention, if made out, would reveal a failure to take into account a relevant consideration. There appears much to be said, however, for the view that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision maker to act rather than from the particular facts of the case that the decision maker is called on to consider. But leaving this issue to one side, it must be noted that the latter form of contention (that the Tribunal should have concluded that the applicant had been raped) is self-evidently a contention that depends upon the Court reviewing the merits of the Tribunal’s decision rather than the process by which it arrived at its conclusion. Such contention could not be advanced as a ground for the grant of prerogative releief. As Brennan J said in Attorney-General (NSW) v Quin:
“The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: “It is, emphatically, the province and duty of the judicial department to say what the law is.’ The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in do doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Consequently, this ground fails.
The Tribunal took into account irrelevant considerations
In relation to this ground, the applicant submits that the Tribunal should not have taken into account the information contained in a statement attached to her protection visa application form and should only have taken into account the evidence which she gave at the Tribunal. That is to say, the information contained in that original statement was, in her submission, irrelevant and the Tribunal erred by taking it into account.
Section 422B(1) of the Act provides:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The combined effect of decisions of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 is that the common law natural justice hearing rule has no application to proceedings governed by that section. This is one of those proceedings.
Section 424(1) of the Act provides:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Amongst the information which was before the Tribunal was the applicant’s protection visa application form and its attached statement. This was information to which s.424(1) required the Tribunal to have regard. Moreover, the applicant was given the opportunity to deal with inconsistencies between that first version of events and her subsequent version of events when the Tribunal sent her agent a letter pursuant to s.424A(1) (CB 82-84).
Consequently, the relevant legislation required the Tribunal to have regard to this information and so, in doing so, it was not falling into error and no other error has occurred by the Tribunal in that process.
The Tribunal was arbitrary, capricious and illogical
The applicant further says that the Tribunal’s decision was capricious, arbitrary and illogical. The particulars appearing in the application which appear relevant to these grounds are the following:
The applicant claimed that she made enquiries in February 2006 as to where she could meet up with Falun Gong practitioners. She also claimed that prior to her meeting up with Mr Zeng and his group she also practiced [sic] in front of the Chinese Consulate. The Tribunal did not accept such claims. The Tribunal rejected the claims on no reasonable grounds.
The applicant’s complaint in this ground purports to be that she was denied procedural fairness. As Deane J explained in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366:
In time, the common law obligation of a statutory decision-maker to act judicially in certain circumstances came to be ordinarily referred to as the obligation to act in accordance with the requirements of “natural justice”. Here again, however, there was a potential for confusion: between the relevant common law requirements of fairness and detachment and the jurisprudence of wider theological and civilian perceptions of natural law. These days, it is customary and convenient in this country to avoid references to “acting judicially” or “natural justice” and to speak of the “requirements of procedural fairness” when referring to the fairness and detachment required of a person entrusted with statutory power or authority to make an administrative decision which may adversely and directly affect the rights, interest, status or legitimate expectations of another in his, her or its individual capacity. That evolution of terminology should not, however, be permitted to constrict the content of such an obligation to a mere requirement to observe some surface formalities. A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made.
and at 367:
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion.
In this context it is important to note the reasons for judgment of Gleeson CJ in Appellant S106/2002 v Minister for Immigration & Multicultural Affairs (2003) 198 ALR 59 where the Chief Justice said at 62 [9] that:
... It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.
The claimed ground that the Tribunal was arbitrary, capricious and illogical is not made in the context of a recognised ground of judicial review but, in any event, a consideration of the Tribunal’s reasons indicates that there is no factual basis for the ground advanced by the applicant. The reasoning in the Tribunal’s decision and particularly the inconsistencies set out below indicate the reasoned and logical approach adopted by the Tribunal.
As to the claim generally, the inconsistencies which the Tribunal said led it to conclude that the applicant was not truthful or credible were cited by it at CB 116-118 as follows:
In dealing with this application the Tribunal has formed a firm view the applicant lacks credibility and that her material claims cannot be accepted. In summary, the applicant claims to fear persecution in China because she is a Falun Gong practitioner. She claims to have practised Falun Gong since about the time or shortly after it was banned in 1999. Her evidence differed as to whether she practised throughout the whole period or whether she stopped at some time and resumed the practice when she met the lady referred to in her evidence on a bus in 2004. In her protection visa application she claimed to have never stopped practicing [sic] for a period of 7 years (folio 10 Departmental file). In the statement provided by her adviser it is stated that she stopped practicing [sic] until sometime in 2004. In her evidence before the Tribunal she stated that after about September 1999 she did not practice. On the evidence before me I am not satisfied that the applicant is a Falun Gong practitioner or that she practiced [sic] Falun Gong in China, as claimed.
The following contradictions, inconsistencies and implausibility lead me to conclude that the applicant is not truthful or credible.
· During her evidence before the Tribunal the applicant claimed to have commenced her practice of Falun Gong in the spring of 1999. She stated that she had practiced [sic] with a group at a hotel on two occasions in either May or June 1999. When asked by the Tribunal what date Falun Gong was band [sic] the applicant replied 13 May 1999. As indicated above this date is incorrect. The applicant again met the group for some time in September 1999 as she was too busy to attend the meetings. During September 1999 she attended the hotel for the third time at about 6.00 in the morning. She stated the PSB came to the hotel at about 7.30am as they had seen the applicant practising inside. She then stated that she did not know what had happened at the hotel as she had left before the PSB arrived. Earlier in her evidence she had stated she went to the hotel and practised for about a half hour with the group. During her evidence she stated that four PSB officers attended her home and she was unable to explain how they were aware that she was practising at the hotel given that it was her evidence that she had already left the hotel about an hour before they arrived. She stated in her evidence that she was asked to accompany the PSB officers to the police station which she did. She was told not to practice [sic] Falun Gong again and she stopped practising until about April 2004. In her statement attached to her protection visa application (Folio 10 departmental file) she stated that in August 2003 policemen went to her home and threatened her that if they heard she was practising Falun Gong once again she would be sentenced to a gaol term of up to ten years. In the statement provided by her advisor to the department (Folio 30 departmental file) it is stated that on one occasion when she attended the local hotel the police went to the hotel and arrested many practitioners. Because one of the policemen knew the applicant she was allowed to leave and was not detained. I do not accept that the Applicant was approached by the police either in 2003 or in 1999 as claimed. I do not find the explanation for the inconsistent evidence to be convincing. I am of the view that had the applicant been approached by the police, her account of such an approach would be consistent, especially given the actual persecution persons involved in Falun Gong have been experiencing since its ban by the Chinese authorities in 1999.
· In relation to the applicant’s account as to how she became involved once again in Falun Gong, she stated that she met one lady on the bus, who went to the applicant’s home in the summer of 2004 about three months after they first met. In relation to the second lady it was her evidence that she met the second lady on one occasion when both ladies attended the applicant’s home and told her the truth about Falun Gong. I do not accept that the applicant resumed her practice of Falun Gong in April 2004 as claimed. I do not accept that she met any lady or ladies who discussed Falun Gong practice with her or visited her home during some period in 2004. I do not accept that the applicant was involved with the practice of Falun Gong prior to leaving China.
· In her protection visa application (Folio 10 departmental file) the applicant stated that she bribed a government officer, paying him RMB50,000 in order to obtain a passport and apply for a visa to visit Australia. During her evidence before the Tribunal she stated that she paid RMB230 for her passport. She stated that her visa cost the going rate of RMB100,000 so that she could enter Australia. I do not accept that the applicant bribed any official in order to obtain a passport. I note that the applicant’s advisor’s response to the Section 424A Letter stated that he and the applicant admit that by the time she departed Australia she “might not be targeted by the Chinese Government, given that she was able to get her passport and departed without difficulties”. This statement supports a finding that the applicant was not of adverse interest to the Chinese authorities when she departed China in December 2005.
As to the Tribunal’s findings concerning the applicant’s involvement with Falun Gong in Australia, it said this:
In respect to the applicant’s involvement in the practice of Falun Gong in Australia, the Tribunal accepts that the applicant has been attending Falun Gong group meetings since about late March or April 2006 when the applicant met the witness Mr Zeng. During the Tribunal hearing the applicant’s advisor stated that he informed the applicant about the Department’s protection visa application refusal at the end of March 2006 which coincides with the time she first involved herself with a Falun Gong group in Australia. When asked by the Tribunal why she had not become involved with Falun Gong practitioners before that time she stated that she made enquiries in February 2006 as to where she could meet up with Falun Gong practitioners. The applicant arrived in Australia in December 2005 and explained her delay in becoming involved with Falun Gong practitioners because she did not know anybody and she did not speak English. This explanation is not convincing given that a high percentage of Falun Gong practitioners are Mandarin speaking Chinese. It is the experience of the Tribunal that sincere and genuine Falun Gong practitioners manage to quickly and easily access other Falun Gong practitioners very soon after their arrival in Australia. I do not accept that the applicant was trying to locate other Falun Gong practitioners from February 2006. The Tribunal accepts Mr Zeng’s evidence that the applicant has engaged in Falun Gong practice. Mr Zeng also agreed that Falun Gong is very well publicised in Sydney. The applicant did not comment when it was put to her by the Tribunal that in the Tribunal’s experience genuine Falun Gong practitioners approached the Falun Dafa Association very soon after their arrival in Australia. When it was mentioned to the applicant that her involvement with the Falun Gong group occurred at around the same time she received notification from her advisor that the Department had refused to grant her a protection visa, she then stated to the Tribunal that before meeting up with Mr Zeng and the group she was practising in front of the Chinese Consulate. I do not accept that the applicant was practising at any time prior to meeting up with Mr Zeng and his group. I am of the view that she became involved with a group after she discovered that the Department had refused her application, with a view to enhance her review application before the Tribunal. (CB 118-119)
The numerous factual issues identified and discussed in these passages indicate that the Tribunal had sufficient evidence on which to base its conclusions and its reasons were set out in sufficient detail that, properly viewed, those conclusions could not be said to be arbitrary, capricious or illogical.
But, in any event in NACB v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, at [22] – [29], the Full Court of the Federal Court set out the relevant authorities stating at [29]:
In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error.
In reality, the applicant’s complaint regarding the asserted capriciousness, arbitrariness and illogicality of the Tribunal is not one which goes to a ground of review based on jurisdictional error. Rather, her claim is in the nature of a disagreement with the Tribunal’s conclusions on facts which were not jurisdictional facts. The Court cannot review such fact finding by the Tribunal.
For the above reasons this ground fails.
The Tribunal failed to accord procedural fairness
Neither of the two paragraphs of particulars pleaded in the application appear to have any obvious relevance to this ground which seems to be a catch-all ground but, to the extent that they do, they have already been discussed earlier in these Reasons to the effect that no jurisdictional error has been shown.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Parisra Thongsiri
Date: 1 March 2007
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