SZJNJ v Minister for Immigration
[2007] FMCA 1104
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJNJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1104 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal misunderstood applicant’s claim – Tribunal’s misunderstanding did not form part of the ‘reasons for decision’ – Tribunal’s subjective assessment is not information for s.424A purposes – no error of law in incorrect finding of fact – Tribunal did not take into account irrelevant consideration – no s.424A error – applicant did not make out claims to Tribunal – application dismissed. |
| Migration Act 1958, ss.424A, 422B, 424A(1), 424A(3)(b) |
| Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FCAFC 62 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZJNJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2972 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 May 2007 |
| Date of Last Submission: | 22 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The reference to the first respondent be amended to read the “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2972 of 2006
| SZJNJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 16 October 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 25 August 2006 and notified to the applicant on 14 September 2006, to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 20 February 2006 and lodged an application with the first respondent’s Department on 4 April 2006. On 5 May 2006 a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 8 June 2006 the applicant applied to the Tribunal for review of this decision.
The applicant’s claims to protection are set out in his application for a protection visa reproduced in the Court Book (“CB”) at CB 1 to CB 26, and in oral evidence at a hearing before the Tribunal. The Tribunal has set out in its decision record (CB 58 to CB 64) what purports to be, in part, a transcript of the hearing (CB 61.6 to CB 64.4). No evidence has been put before the Court to challenge the Tribunal’s account of what occurred at that hearing.
The applicant claimed that he was persecuted by the Chinese government because “he practiced Falun Gong in a park”. He claimed he “introduced Mr Huang Jian Qiang into our team.” His claims are that “the team” normally practiced in their own homes and went to parks on weekends because they thought the police did not work on the weekends. Further, he claimed that “they were found and detained”. The applicant also claimed that after one day in detention “they were monitored by the police”. (See CB 19.6 to CB 19.7).
The Tribunal’s “Findings and Reasons” are reproduced at CB 64.4 to CB 64.9. The Tribunal found that, based on its providing the applicant with ample opportunity to set out his knowledge of Falun Gong, both in terms of the relevant exercise routines, as well as the five basic philosophies, he “displayed a very poor knowledge of anything” (CB 64.4 to CB 64.5). The Tribunal concluded that the applicant was not a practicing Falun Gong adherent…or that he was detained for practicing Falun Gong in China” (CB 64.5). The Tribunal also concluded that the applicant did not have a well founded fear of persecution or risk of persecution, should he return to China (CB 64.8). It said it was “convinced” because he had not taken steps to join a Falun Gong group “in Sydney”, or even continued the relevant practice at home (CB 64.7).
The application before this Court filed on 16 October 2006 contains the following grounds of complaint:
“The grounds of the Application are:
1. the RRT decision was affected by Jurisdictional error in that the RRT failed to invite the applicant to comment on adverse information which may be a reason for the Tribunal to affirm the decision under review. On the contrary, the Tribunal asked the applicant to comment on information that the applicant has never provided.
Particulars:
The applicant was asked to explain “Juan Qing” at the beginning of the hearing. The applicant could not explain because he has never provided any information about “Juan Qing”. The Tribunal pointed out that the applicant had claimed that he was taught how to practice “Juan Qing”, but in his statement he did not claim such at all.”
When the applicant first appeared before this Court on the scheduled final hearing date of this matter, he claimed to have suffered some injury to his face which prevented him from being able to properly participate. The matter was adjourned for five weeks. At the resumed hearing, the applicant indicated he was able to proceed. He was assisted by an interpreter in the Mandarin language. Ms V. McWilliam of Counsel appeared for the first respondent.
At the hearing, the applicant provided short written submissions. These complain:
1)That he did not make any claims “about Juan Qiang”, yet at the hearing the Tribunal asked him to explain this.
2)The Tribunal’s finding that he did not practice Falun Gong in Australia was “irrelevant”, as it was his practice in China which brought him to the attention of the Chinese authorities.
3)The Tribunal failed, pursuant to its obligation in s.424A of the Act, to invite him to comment on information which formed a part of the reason for its decision, namely that he had not practiced Falun Gong in Australia.
The applicant complains that the Tribunal asked him to “explain Juan Qing” (or “Jian Qing”), that he could not explain because he had never provided any information about “Jian Qing” and that no such claim (to practice “Jian Qing”) was made in his statement in support of his claims to protection. I saw this in context as a reference to his statement in support of his protection visa application (CB 19).
In this regard I can only agree with the applicant. Even the most cursory reading of the applicant’s statement reveals that the applicant never claimed to have practiced “Jian Qing”. What appears in the statement is that (at CB 19):
“I began Falun Gong practice in 2002 when I met Mr. Zheng Bao Ru, who was a Falun Gong follower. He taught me how to practice Falun Gong and I became very interested in it. Then I introduced Mr. Huang Jian Qiang into our team. We normally practiced in our homes. Only on weekends we went to parks because we thought police did not work on weekends. But eventually police found us and detained us. After the one day detention we were monitored by the police.”
In its “Findings and Reasons”, the Tribunal outlined its understanding of the applicant’s claims (CB 61.4). It accurately understood that the applicant was claiming that he left China because he had been persecuted by the Chinese authorities because of his practice of Falun Gong. However, it then went on to record (at CB 61.5):
“He claimed that he commenced the exercises in 2002 when he met Mr Zheng Bao Ru who was a Falun Gong practitioner. He taught the applicant how to practice “Jian Qing” as a team member.”
Under the heading (CB 61.7): “Evidence before the Tribunal”, the Tribunal reports that at the hearing, the applicant confirmed that “he started Falun Gong exercises in 2002”, and that it then asked the applicant to explain “Jian Qing”. What then follows under this heading, represented in question and answer format, is an account of what occurred at the hearing. The applicant stated that a friend had written his application for a protection visa based on what the applicant had told him: (at CB 61.8):
“A: I told him my story and he wrote it.
Q: Did he read it back to you?
A: He told me the substance of what he had written.
Q: But he didn’t tell you about “Juan Qing”.
A: No!”
What follows for the next two and a half pages are questions and answers regarding the applicant’s practice and understanding of Falun Gong and his claimed fear of returning to China.
In the circumstances set out above, it is little wonder that the applicant was puzzled. The applicant is correct to assert now that he had never provided information about the practice of “Juan Qing” to the Tribunal. This was in the circumstances a clear, and it must be said, inexplicable, misunderstanding by the Tribunal. The Tribunal’s carelessness in this regard is compounded in that on the same page of its decision record, it at first refers to “Jian Qing” (CB 61.5), which appears then to have metamorphosed into the “Spanish version” of “Juan Qing” (CB 61.7 and CB 61.10).
In the alternative, the complaint is also that the applicant was asked to comment on information that he had “never provided”. This appears to be the thrust of paragraph 1 of the applicant’s written submissions. The applicant’s complaint here is that the Tribunal “disbelieve[d] my whole claims” because of his failure to explain “Juan Qing”.
This is a case to which s.422B of the Migration Act 1958 (“the Act”) applies. The application to the Tribunal and its decision post dates the introduction of this section to the Act, such as to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FCAFC 62). The alleged failure (as stated by the applicant to the Court) to invite comment on “adverse information” therefore must be seen as a claimed failure by the Tribunal in its obligations pursuant to s.424A of the Act.
The issue in the context of s.424A of the Act, however, is whether this was information that formed even a part of the reason for the decision, such as to engage the obligation in s.424A(1) of the Act, subject of course to the exceptions in s.424A(3) of the Act.
I accept that on a plain reading of the Tribunal’s decision record as a whole, the issue of “Jian Qing” (or “Juan Qing”) and the applicant’s lack of knowledge of it was not, as Ms McWilliam submitted, a part of reasons for the decision.
Having elicited from the applicant that a friend wrote what was in his “submissions” (the statements contained in his protection visa application) and that this was based on what the applicant told him, the issue of “Jian Qing” (or “Juan Qing”) played no further role in the Tribunal’s questioning, which focussed on the practice of Falun Gong, the applicant’s claimed problems in China and the applicant’s claimed fears of returning to China.
Having ascertained that the applicant’s friend had not told him “about Juan Qing”, the Tribunal then focussed on the applicant’s practice of Falun Gong (CB 62.2), his “knowledge of Falun Gong” (CB 62.4) (“I would like to ask you questions about your knowledge of Falun Gong” (CB 62.4)), which canvassed the applicant’s knowledge of its practice, philosophy and exercises, his failure to practice Falun Gong in Australia (CB 63.5), and his fear of returning to China. Ultimately, the Tribunal recounts (at CB 64.2):
“Q. I have met many Falun Gong adherents who are deeply committed to the philosophy and methodology of the Dafa while others only exercise for the health and don’t know anything about the philosophy. There are others who say they are adherents and know very little about anything.
A. No response.
Q. Is there anything more you wish to say?
A. No.
Q. Can you show me the five exercises?
A. No.”
The Tribunal’s reasons for affirming the decision under review (as set out in its “Findings and Reasons” at CB 64.4) were that, despite opportunity to set out his knowledge of Falun Gong in terms of the five exercises and basic philosophical concepts, the applicant “displayed a very poor knowledge of anything” (CB 64.4). The Tribunal was further “convinced” as to its conclusions that the applicant was not a practicing Falun Gong adherent in China because he had not taken steps to practice in Australia (CB 64.5).
Having initially raised the issue of “Jian Qing” at the hearing, the Tribunal appears to have accepted (although no finding is made in this regard) that the applicant was not told by his friend who wrote out the application for a protection visa about “Juan Qing”. I cannot see that this issue subsequently played a part in the Tribunal’s reasoning. The applicant’s “very poor knowledge of anything” plainly related to his responses to the Tribunal’s questions beginning at CB 62.4 (“I would like to ask you questions about your knowledge of Falun Gong”) and ending with the Tribunal’s statement comparing “deeply committed” adherents and “others who say they are adherents and know very little about anything” (CB 64.2). The Tribunal emphasised the applicant’s “poor knowledge” when it ended its account of the hearing by reporting on its having asked the applicant as to whether he would “show” “the five [Falun Gong] exercises”, and recording his answer that he could not (CB 64.2 to CB 64.4).
In terms therefore of its obligation pursuant to s.424A of the Act, the Tribunal relied on information provided by the applicant himself at the hearing such that this information came within the exception set out in s.424A(3)(b) of the Act from the obligation in s.424A(1) of the Act.
The information of “Mr Huang Jian Qing” which did appear in the applicant’s protection visa application, did not, plainly, form any part of the reasons for the Tribunal’s decision. Further, its “mistaken” reference at the hearing to “Juan Qing” did not form part of the reasons for the decision, such as to engage the operation of s.424A(1) of the Act.
Nor is the applicant’s claim that it was the failure to explain “Juan Qing” the reason that led the Tribunal to disbelieve his claims. It did not believe his claims because he was unable to demonstrate the relevant exercises or explain the basic philosophy of Falun Gong. In the context of s.424A(1) of the Act, the applicant’s failure, even if this had been the case (which it was not) to explain “Juan Qing” would be the Tribunal’s subjective assessment of the applicant’s evidence, which is not information for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477).
I did also separately consider whether the Tribunal’s misunderstanding (as described above) could be said to have been such as to cause it not to have properly understood and considered the applicant’s claims, such that it could be said that there was a failure to exercise its jurisdiction. The Tribunal was in error, in recording the applicant’s claims, in part, as having been taught “how to practice ‘Jian Qing’ as a team” (CB 61.5). But on any plain reading of its decision record, this error in setting out the applicant’s claims did not form part of the Tribunal’s reasons for affirming the decision under review. The Tribunal ultimately understood the applicant’s claim to be a Falun Gong practitioner and did not accept this claim because he was unable to show the relevant five Falun Gong exercises or explain basic concepts. In all, however, the decision record reveals that, ultimately, the Tribunal did understand the Falun Gong claim and its questioning of the applicant and subsequent analysis was untainted by the initial careless misunderstanding.
I also considered whether the Tribunal’s finding that the applicant did not know “anything” (when understood in context as a reference to “anything” about the practice or philosophy of Falun Gong) was at least in part, based on the applicant not knowing anything about “Jian Qing”.
First, on a plain reading of the Tribunal’s decision record, the Tribunal made no specific finding that the applicant was not able to explain about “Jian Qing”.
Second, the Tribunal’s reference to the practice of “Jian Qing” when setting out the applicant’s claims was addressed (at least from the Tribunal’s unchallenged account) at the beginning of the hearing with the applicant. A fair reading of the Tribunal’s reasons, with reference back to its account of what occurred at the hearing, in my view reveals that the Tribunal’s finding that the applicant displayed poor or negligible knowledge of the practice and concepts relating to Falun Gong is based on, and derived from, the information provided by the applicant at the hearing. (See from about the point (in the Tribunal’s account) where it asks the question as to the applicant’s knowledge of Falun Gong at CB 62.2.)
Thirdly, on a fair reading of its decision record, the Tribunal’s focus on “Jian Qing” appears to end prior to this and appears to have been dealt with separately by the Tribunal.
Fourthly, the Tribunal appears to end its focus on this issue at the hearing with the applicant’s evidence that his friend who wrote out his statement, did not tell him about “Jian Qing”. In context, it appears the Tribunal accepted this answer.
But even if this is not the case, it subsequently dealt with and explored separately, and specifically, the applicant’s knowledge (or lack) of the practice and philosophy of Falun Gong. In all therefore, I did not see its finding that he did not know “anything” about the practice and philosophy of Falun Gong as being based, even in part, on the “mistaken” issue of “Jian Qing” or “Juan Qing”.
Nor was the Tribunal’s error a wrong finding of fact. The Tribunal made no finding in relation to “Jian Qing” or “Juan Qing”. The issue does not appear to have gone beyond the Tribunal’s question about whether the applicant’s friend who made out the protection visa application for him had not told him about “Juan Qing”. In any event, there is no error of law, let alone jurisdictional error in a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137]).
The applicant by way of written submissions also complains that the Tribunal took into account an irrelevant consideration in the making of its decision. Namely, that its finding that he had not practiced Falun Gong in Australia was not relevant to whether he would be persecuted in Australia.
Plainly, this complaint does not succeed. The Tribunal was not convinced that the applicant had been a Falun Gong practitioner in China because of his “poor knowledge of anything” (CB 64.5). In context, this was his poor knowledge of Falun Gong practice and philosophy. It was clearly open to the Tribunal to consider that a Falun Gong adherent would seek to pursue his practice in Australia where there are “ample opportunities” to do so (CB 64.6). It was certainly relevant to the Tribunal’s consideration that this applicant, without explanation, and in these circumstances, chose not to do so. Further, it was open to the Tribunal on the material before it to come to this conclusion.
The applicant’s further complaint in written submissions that this finding of fact should have been disclosed to him for comment pursuant to s.424A of the Act, simply does not succeed. The Tribunal is not obliged, pursuant to s.424A of the Act, to put its findings to the applicant for comment. The Tribunal’s obligation in this regard is to put to the applicant (in writing) information (not its appraisals) on which it relies, even in part, in the making of its decision. In any event, the information that the applicant had not practiced Falun Gong in Australia was information that the applicant himself gave to the Tribunal at the hearing (CB 63.6). According to the Tribunal’s unchallenged (by way of other evidence) account of what occurred at the hearing, the applicant plainly stated he had not continued his practice. As such this was information given by the applicant to the Tribunal for the purposes of the review and comes within the exception contained in s.424A(3)(b) of the Act from the obligation set out in s.424A(1) of the Act.
The applicant was unsuccessful before the Tribunal because the Tribunal found his claim to be a Falun Gong practitioner was not made out. This was based on what the applicant himself told the Tribunal at the hearing. I cannot discern jurisdictional error either by way of the applicant’s complaints or otherwise. Therefore, this application is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 26 July 2007
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