SZJML v Minister for Immigration

[2007] FMCA 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJML v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2010

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth) ss.91R, 424A, 425

AbebevThe Commonwealth of Australia (1999) 197 CLR 510
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SCAA v The Minister for Immigration Multicultural & Indigenous Affairs [2002] FCA 668
SZBYR v The Minister for Immigration & Citizenship (2007) 81 ALJR 1190
SZHYP v The Minister for Immigration & Citizenship [2007] FCA 183
VAF v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant: SZJML

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2883 of 2006

Judgment of: Barnes FM

Hearing date: 29 November 2006

Delivered at: Sydney

Delivered on: 29 November 2007

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the name of the first respondent be amended to read "Minister for Immigration & Citizenship".

2. That the application be dismissed. 

3. That the applicant pay the costs of the first respondent fixed in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2883 of 2006

SZJML

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 12 September 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People's Republic of China, arrived in Australia in August 2004 and applied for a protection visa. In connection with his protection visa application he claimed that he became a Falun Gong member in 1997. He practised initially for his health but it became his religious belief. He claimed that he gathered with other believers and promoted Falun Gong to his colleagues. He claimed that in 1999, when the Chinese Government cracked down on Falun Gong, local police came to members' homes to search for evidence and that he was found to have membership cards and other promotion leaflets, and he was detained for five days and forced to disclose details of other members and membership. He claimed that after he was released he was forced to leave the company he worked for, that he lost his job, realised the local police were supervising him and left China for his freedom and religious belief.

3. The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. The Tribunal affirmed the delegate's decision on 13 December 2004. The applicant sought judicial review of that decision. In May 2006 the Tribunal decision was set aside and the matter remitted to the Tribunal for reconsideration. The Tribunal, as reconstituted, invited the applicant to attend a hearing. He did so on 2 August 2006. It is the decision of the second Tribunal that is in issue in these proceedings.

4. In its reasons for decision the Tribunal set out the claims made by the applicant in connection with his protection visa application. It noted that the applicant had not attended a hearing with the Tribunal as originally constituted. It then recounted in some detail the evidence given by the applicant at the hearing conducted on 2 August 2006.

5. The Tribunal accepted that the applicant was a citizen of the People's Republic of China and also that he had experienced economic difficulties since 1999. However, for reasons which it gave, it did not accept that the applicant had practised Falun Gong in the People's Republic of China or in Australia as a known or committed practitioner.

6. It found that the applicant’s evidence regarding his involvement in China was vague and lacking in detail and that while he claimed to have practised from time to time in Sydney, he did not give any detail and told the Tribunal in the hearing that he was not known to any other regular practitioners. The Tribunal found that if he had practised regularly, or at all, it would have expected he could have given more evidence regarding such involvement. It also found that while the applicant had a superficial knowledge of Falun Gong practice and belief, and may have observed or participated in a few sessions when the practice was open and accepted in China, the Tribunal did not consider that he had ever been a committed or regular Falun Gong practitioner or that he continued any interest or involvement with Falun Gong after it was banned in China in 1999.

7. The Tribunal referred to independent country information to the effect that the practice of Falun Gong on its own did not result in systematic targeting and that each case must be considered on its own evidence having regard to the role and profile of the claimant and whether activities had been brought to the attention of authorities.

8. The Tribunal then found that it did not accept that the applicant had been detained or mistreated in 1999 because authorities had found Falun Gong membership cards, lists and pamphlets at his home. It found that this claim was contrary to country information which indicated that Falun Gong practitioners, while producing fliers and posters, did not have formal membership, membership cards or membership lists. It considered that the applicant was not aware of this and had fabricated his evidence relating to membership and regarding material found at his home. It followed that the Tribunal did not accept that the applicant was detained by the local police or harassed from time to time by the local police or security committee for this reason or that his family's livestock was destroyed for this reason, or indeed, for any Convention reason in the absence of any reliable evidence to support the claim.

9. Further, the Tribunal did not accept that the applicant was forced to leave his employment in 1999 and that he found it impossible to obtain further employment because of his Falun Gong involvement. It also had regard to country evidence indicating that known Falun Gong practitioners found it difficult to obtain passports or leave China without restriction. The applicant had given evidence that he held a passport in his own name and left China using that passport without difficulties. The Tribunal found that this supported its finding, although it accepted that the applicant used the services of a people smuggler. It found that the applicant's evidence of his difficult financial circumstances and heavy financial responsibilities motivated him to come to Australia.

10. The Tribunal concluded that taking all of the above into account, it did not accept that the applicant faced a real chance of persecution for reasons of his involvement or association with Falun Gong practice if he returned to China now or in the foreseeable future. Hence, it was not satisfied that he had a well-founded fear of persecution for any Convention-related reason.

11. The applicant sought review of the Tribunal decision by application filed in this Court on 9 October 2006. He filed an amended application on 5 March 2007 and while he indicated in the hearing today that he relied on the amended application, he raised some additional matters in oral submissions that either overlapped with matters in the original application or raised other issues. All of these were addressed by the first respondent in written or oral submissions and will be considered.

12. For the sake of completeness it is convenient to consider first the grounds in the application. In both the original application and in oral submissions the applicant raised, without particularisation or elaboration, a claim that the Tribunal did not consider his application according to s.91R of the Migration Act 1958 (Cth). Section 91R of the Act defines the meaning of "persecution". However, no issue as to the interpretation of that section arose in the present case for determination by the Tribunal as it rejected the applicant's claims for credibility reasons. In those circumstances, it was not necessary for the Tribunal to consider whether the conduct complained of by the applicant amounted to persecution or the scope of s.91R.

13. The second aspect of the first ground, a matter also repeated without elaboration in oral submissions, is that the Tribunal was biased against the applicant and failed to assess the chance of his persecution on return to China and did not believe his claims because of the bias against him. An allegation of actual bias is a serious claim. It is difficult to establish based solely upon the written reasons, which is all that is before the Court in this instance. (See the discussion in SCAA v The Minister for Immigration Multicultural & Indigenous Affairs [2002] FCA 668 at [36]-[38] per von Doussa J).

14. There is nothing in the material before the Court that supports a claim that there was any predetermination or prejudgment by the Tribunal or, indeed, that there might be a perception of bias such as to constitute apprehended bias. Rather, it is apparent from the Tribunal reasons for decision that it considered the applicant's claims, not only as set out in brief form in the application for protection visa, but also as elaborated on in the Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision and it appears from that account of what occurred that the applicant had the opportunity to elaborate on his claims. There is nothing in that material to indicate any concern as to matters which might constitute bias, either actual or apprehended.

15. Insofar as it is suggested that the Tribunal failed to assess the chance of the applicant's persecution on his return to China, again this is not established. As set out above, the Tribunal rejected the applicant's claims as to the nature of the involvement in Falun Gong which he claimed and his claims about past detention or mistreatment on that basis. It concluded its reasons by assessing whether the applicant faced a real chance of persecution for reasons of involvement or association with Falun Gong practice in the future. Insofar as the applicant seeks merits review, merits review is not available in this Court.

16. The second ground in the original application is that the Tribunal did not carry out its statutory duty and did not notify the applicant of the reason or part of the reason for affirming the decision. It was claimed that the applicant could explain “doubts” of the reason. This seems to be an assertion that the applicant could not address the Tribunal’s concerns because he was not notified of its provisional reasoning. It appears that the applicant intends to raise s.424A of the Migration Act, which he also referred to without elaboration or clarification in his oral submissions.

17. Insofar as this is a contention that the Tribunal was obliged to put its reasoning process to the applicant for comment under s.424A, there was no such obligation on the Tribunal. (See SZBYR v The Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [18] and the reference to the discussion by Finn and Stone JJ in VAF v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [477] to the effect that the word "information" does not encompass the Tribunal's subjective appraisals, thought processes or determinations).

18. It is convenient to address the ground raised in relation to s.424A in the amended application at this time. The amended application (ground 2) repeats in substance ground 2 in the original application, (that the Tribunal failed to notify the applicant of the reason or part of the reason for affirming the decision). The amended application then purports to give particulars of this ground, which is also described as a failure to carry out its statutory duty. It is suggested that the only information before the Tribunal was that contained in the first respondent's file and given to the Tribunal by the applicant. I note in that respect that the Tribunal also had country information to which it referred before it which was not necessarily material which came from the departmental file. Insofar as it might be intended to suggest that there was a failure to comply with s.424A as it stood at the relevant time in relation to country information, such information would be outside the operation of s.424A(1) by virtue of the exception in s.424A(3)(a).

19. It seems from consideration of the particulars in the amended application that the applicant's complaint is that the Tribunal was obliged to put to him in writing for comment the information he had provided to the department in connection with his protection visa application.

20. In that respect, the legal representative for the first respondent relied on what was stated by the High Court in SZBYR v The Minister for Immigration & Citizenship at [17], submitting, in particular that, such information was not itself information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review and that, as in that case, the claims in the protection visa application "did not contain in their terms a rejection, denial or undermining of the appellant's claims to be persons to whom Australia owed protection obligations.  Indeed, if their contents were believed they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review”.

21. It is not necessary for the purposes of this decision to determine the precise scope of s.424A in relation to material contained in a protection visa application, omissions or inconsistency. No issue was taken by the Tribunal in that respect or in relation to possible differences between that information and other information. There is nothing in the material before the Court to indicate that that was the Tribunal's approach. Moreover, it is apparent from the Tribunal account of the Tribunal hearing that the applicant in fact elaborated on and provided to the Tribunal full details of the essential elements of all of his claims in the course of the Tribunal hearing.

22. In these circumstances, it has not been established that there was “information” subject to the s.424A(1) obligation. Moreover, even if there were such “information”, consisting of the contents of the protection visa application, it has not been established that such material was the reason or a part of the reason for affirming the decision under review. The Tribunal outlined and addressed the claims made by the applicant in the Tribunal hearing and rejected his claims for reasons relating to the credibility of there oral claims as set out above.

23. Nothing in the material before the Court establishes that there was any failure by the Tribunal to comply with s.424A of the Migration Act 1958, either in the sense contended for in the application or in the amended application.

24. I note the suggestion in SZHYP v The Minister for Immigration & Citizenship [2007] FCA 183 that it is for an applicant to establish that s.424A applies to information. More generally, if the applicant in this case intended to take issue with the Tribunal account of what occurred in the Tribunal hearing, he had the opportunity to file and serve an affidavit containing additional evidence relied on, including a transcript of the Tribunal hearing by 4 March 2007. He did not do so.

25. I also note that the first ground of the amended application appears to repeat the claim of bias, although it also states that the Tribunal did not believe the claims based on the “assumptions” of the officer.  Insofar as this raises a claim of bias or apprehended bias, it is addressed above. More generally, it is for an applicant to make out his case, (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510), and for the Tribunal to consider the material put before it by an applicant.

26. If it was intended to be suggested by the applicant in what he said today that the Tribunal was under an obligation to make an investigation or carry out further inquiries, this is not a case in which the Tribunal undertook or in which the circumstances gave rise to an obligation the Tribunal to carry out a further investigation or make inquiries, (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155).

27. Contrary to the claims of the applicant, there is nothing to establish that the Tribunal failed to consider the claims that he made. In oral submissions today the applicant claimed that the Tribunal did not understand his claims correctly. Despite being given the opportunity to do so, he was not able to elaborate on what he meant by this concern. There is nothing in the material before the Court to suggest that the Tribunal failed to understand or deal with each of the applicant's claims in a manner constituting jurisdictional error. As indicated, if by this claim the applicant intends to seek merits review, merits review is not available in this Court.

28. I have addressed the claims that the Tribunal refused the application without any evidence or without detailed evidence insofar as they are intended to raise either a claim of bias or an allegation of an obligation on the Tribunal to carry out further inquiries. There was in fact evidence before the Tribunal consisting not only of the applicant's own claims but also of independent country information to which it had regard. This is not a case in which a ground of no evidence is made out.

29. The applicant also claimed that he lost the opportunity to explain himself to the Tribunal. Again he was not able to elaborate on this claim when asked what he meant. There is nothing to support any such complaint. In particular, the applicant had the opportunity to attend a Tribunal hearing and did so. He had the assistance of a Mandarin interpreter and, as indicated above, there is nothing to indicate that he did not have the opportunity at that hearing to give evidence and present arguments relating to issues arising in relation to the decision under review as required under s.425 of the Act. I note the absence of any transcript of the Tribunal hearing before the Court.

30. As no jurisdictional error has been established, the application must be dismissed.

31. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $5,000. The applicant raised no issue in relation to costs. I consider that the amount is appropriate in light of the nature of this and other similar matters. It is also appropriate to amend the name of the first respondent, as is sought.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  5 December 2007