SZJMX v Minister for Immigration
[2007] FMCA 1206
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1206 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – country information not required to be notified under s.424A(1) – allegations of bias require clear proof – Tribunal had no duty to inquire. |
| Migration Act 1958, ss.91X, 422B, 424A, 430 |
| SZAGF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 364 |
| Applicant: | SZJMX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2945 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 July 2007 |
| Date of Last Submission: | 24 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $3,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2945 of 2006
| SZJMX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 20 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 29 August 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 2 May 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) requires that the Court not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
[He] was born in Shandong. He has never married. He states that his father and sister reside in China. He indicates that he lived at the same address in Beijing in China from 1972 until 2006. He indicates that he has never left his country before his journey to Australia in 2006. He does not answer the question on the application form asking for his occupation or profession prior to coming to Australia but indicates elsewhere in his application form that he worked as a manager for one employer from 1995 until 1999 and another employer from 1999 to 2006. (Court Book (“CB”) page 57).
The applicant claims to fear persecution because he is a Falun Gong practitioner.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (CB 57 – 60). Relevantly, they are in summary:
a)the applicant became a Falun Gong member in 1999;
b)it became an important part of his life and it improved his health;
c)at the end of 1999 the Chinese government “started to crackdown on Falun Gong … We went to demonstrations to ask for fair treatment of Falun Gong. The Chinese government dispersed us, our members were taken to police, and situation nearly out of control” (CB 57);
d)the applicant belonged to an important Falun Gong branch in Beijing and became a senior member of the organisation in 2003;
e)they received support from overseas branches and police began to pay attention to them;
f)in mid-2005 the head of his branch informed him he was in danger and helped him to leave China;
g)police have visited his home in China to ask his father for his contact details in Australia; and
h)the applicant has participated in Falun Gong activities in Sydney.
At the Tribunal hearing the applicant also claimed that he used to work as a store manager for a supermarket in China. The supermarket closed down when the applicant’s employer took money from the shop and fled. The suppliers who were owed money started to look for the applicant and harassed him. They came to his house and did damage.
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 that the applicant was or is a Falun Gong practitioner in either Australia or China. In arriving at this conclusion the Tribunal noted the following facts:
i)the applicant was unable to give much information to the Tribunal about Falun Gong;
ii)the applicant did not know “too much” about Falun Gong exercises and apart from “sitting” he did “nothing much” else to practise Falun Gong;
iii)the applicant told the Tribunal, “I honestly don’t know much about [Falun Gong]”;
iv)the Tribunal considered that if the applicant had practised Falun Gong since 2003 or had been associated with Falun Gong as he claimed, he would have known more about its practices than he was able to tell the Tribunal;
b)the Tribunal did not accept that the applicant was associated with the Falun Gong organisation in China;
c)it followed that the Tribunal did not accept that the applicant was of interest to the authorities in China from mid-2005 or that he left China and fears returning there for the reasons associated with Falun Gong that he claims;
d)the Tribunal found that the applicant had fabricated these claims to strengthen his application for a protection visa;
e)the Tribunal accepted that the applicant may have faced trouble in China from suppliers who were owed money after the supermarket he worked for closed down and it found that he may have left China to avoid these suppliers harassing him. However, the Tribunal found that any such harm and harassment would not constitute persecution for a Convention reason; and
f)there was no evidence before the Tribunal to suggest that the applicant would not be able to get protection from the authorities for this harm and harassment.
In essence the Tribunal found:
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered or will suffer persecution for a Convention reason, from Chinese police/authorities or anyone else in his country either now or in the reasonably foreseeable future if he returns there. (CB 61).
Proceedings in this Court
The grounds of the amended application are as follows in abbreviated form:
1. The Tribunal acted in breach of section 424A of the Migration Act 1958 and in breach of the rules of procedural fairness and/or natural justice by failing to put to the Applicant for comment the independent country information on which it impliedly relied in making its determination. As a consequence the decision is affected by jurisdictional error and must be set aside …
2. The Tribunal erred in law by failing to give reasons, or sufficient reasons, for its conclusion at paragraph 2 page 61 of the Green Book that: “The Tribunal does not accept that the applicant was/is a Falun Gong practitioner in either Australia or China and does not accept that he had the association with Falun Gong that he claims while in China” …
At the hearing today the applicant raised two additional matters, namely:
a)the Tribunal was biased against him; and
b)the Tribunal did not have enough independent information on which to base its decision.
Dealing with each of these grounds in turn:
Breach of s.424A
Country information is a class of information which is not required by s.424A(1) to be advised to the applicant for his comments. This is because the information falls within the provisions of s.424A(3)(a). In his amended application the applicant refers to the Federal Court decision of SZAGF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 364. However, that decision has no application to these proceedings as it relates to a matter which was not governed by s.422B of the Act which these proceedings are. Section 422B provides that div.4 of pt.7 of the Act is to be taken as an exhaustive statement of the requirements of the natural justice rule in relation to the matters with which it deals. Consequently, to the extent that there are natural justice obligations in relation to independent country information such obligations are governed by s.424A.
The effect of the section is, as I have already said, that such information does not have to be notified to the applicant for his comments. But in any case it does not appear from the Tribunal's reasons that it relied on independent country information as one of the reasons for affirming the decision of the delegate.
The passage to which the applicant refers to at page 60 of the Court Book, the tender of which I note the applicant opposed and yet it is specifically referred to in the amended application, would not appear to be information which was adverse to the applicant. But whether it was or not the Tribunal's decision on the Falun Gong question was based on the applicant's ignorance of Falun Gong and not on country information which was potentially adverse to him. Consequently no jurisdictional error is demonstrated in relation to this asserted ground of review.
Failure to give reasons
As to the failure to give reasons, the Tribunal did give reasons for the conclusion it reached on the applicant's membership of or adherence to Falun Gong and those reasons have already been summarised in these reasons. The statutory requirement of the Tribunal to give reasons is found in s.430 of the Act, where it is provided that the Tribunal must set out its decision on the review, set out its reasons for the decision, set out its findings on any material questions of fact and refer to the evidence or any other materials on which the findings of fact were based.
On the question of whether the applicant was a Falun Gong practitioner the Tribunal's reasons are to be found in the first full paragraph on p.8 of its decision. There it sets out that it does not believe the applicant's claim on this issue and went on to conclude two paragraphs later that there was no plausible evidence before it that the applicant had suffered or will suffer persecution for a Convention reason.
The Tribunal expressed its reasons for its decision logically and with sufficient clarity for the basis of its decision to be clear, compliant with s.430 and was open to it. Consequently, no jurisdiction error is demonstrated in relation to this asserted ground of review.
Bias
The applicant claims that the Tribunal was biased against him because it believed he did not participate in Falun Gong activities in China or Australia. The applicant has adduced no evidence as to the conduct of the Tribunal at the hearing nor anything else which would suggest that the Tribunal's mind was closed to persuasion or that it had prejudged the issue. Nor is there anything adduced by the applicant to suggest that the Tribunal's conduct at the hearing would lead a reasonable person to apprehend that such was the Tribunal's state of mind.
An allegation of bias has to be clearly made and clearly proven and in the absence of anything other than the Tribunal's decision itself there is no basis upon which I could conclude in the circumstances of these proceedings that there is any basis to this asserted ground of review. Based on the material before me, I find that this assertion is not made out and consequentially jurisdictional error is not demonstrated in respect of it.
The Tribunal did not have enough independent information
As to the final matter for consideration, which was the second issue raised by the applicant today, namely, that the Tribunal did not have enough independent information for reference, this implies that the Tribunal had an obligation to make inquiries and to inform itself by obtaining information additional to the information which it had.
The Tribunal has no obligation to make inquiries and the fact that it did not obtain additional information as the applicant appears to assert it should have done is not indicative of jurisdictional error. To the extent that this ground seeks to impugn the independent country information upon which the Tribunal did make reference in its decision and suggest that the Tribunal relied on that information – which it does not appear to have done – it has to be noted that the selection of country information upon which to rely is a matter within the Tribunal's responsibilities and functions. As the decider of matters of fact, it is for the Tribunal to identify, weigh and assess the information upon which it will rely when arriving at its decision. No jurisdictional error is demonstrated in respect of this asserted ground of appeal.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 9 August 2007
0
0
1