SZJSG v Minister for Immigration
[2007] FMCA 93
•7 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 93 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91R, 91X, 424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 |
| Applicant: | SZJSG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3395 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 January 2007 |
| Date of Last Submission: | 18 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2007 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3395 of 2006
| SZJSG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 14 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated
7 November 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 3 July 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:
The applicant … is a 27-year old citizen of the People’s Republic of China. He comes from Julin Province. He underwent 11 years of education. He also has qualifications in computing hardware and service from a “variety of short courses”. From 1981-June 1997 he resided at the same location. From June 1997-June 2006 he resided at a variety of locations. He worked as a Customer Service representative in a computing company from April 2004-May 2005, and then was unemployed. (Court Book “CB” page 127.)
The applicant claims to have been persecuted and to fear future persecution in China because he is a Falun Gong practitioner.
The facts alleged in support of the applicant’s claim for a protection visa, and which are drawn from his Statutory Declaration of 21 June 2006 submitted with his application for a protection visa, are set out on pages 4-16 of the Tribunal’s decision (CB 127-139). Relevantly, they are in summary:
a)in about 1999 the applicant began to practise Falun Gong in a local park (under the influence of his parents, who had become interested in Falun Gong in about 1998);
b)the applicant first experienced problems in late 2003 following his parents’ detention earlier that year. He believes that he first came under suspicion mainly because of his association with them. He was detained on his way to work and was held for 24 hours. His home was also searched for evidence of his participation in Falun Gong activities. He was released after he promised not to participate in any more Falun Gong activities and his company paid a fine on his behalf;
c)after the incident described in (b) above, the applicant stopped practising Falun Gong for a while. However, by that time he had become a more dedicated follower and did not want to cease his practices or studies. His family also encouraged him to continue so he did so in secret;
d)the applicant continued to face serious harassment from the authorities who suspected that he had not ceased to practise Falun Gong. He was frequently taken in to the police for questioning and held for 24 to 48 hours. He was beaten and ill-treated while in detention. He would be taken into a dark room where he was beaten by people who he could not see;
e)in about May 2005 he was asked to resign from his job because of his frequent absences and the problems caused by his activities. He tried to find another job, but was not able to do so largely because employers knew of his problems and did not want to employ someone who was seen as a troublemaker;
f)the last time the applicant was detained was in December 2005. After this he moved around a lot, staying in different places in the area to avoid more problems. However, he knew that this was not a permanent solution and decided that he should look for a way to leave China;
g)he obtained his Chinese passport legally because there were no arrest warrants or charges outstanding against him; and
h)the applicant claims to have left China because he was facing serious harassment and discrimination as a result of his involvement in Falun Gong and claims to fear that he will be detained or physically harmed or face serious discrimination if he returns to China.
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:
After careful consideration of the applicant’s claims and evidence, the Tribunal cannot be satisfied with the overall credibility of the applicant. The Tribunal finds his claims and evidence to be internally inconsistent, inconsistent with the independent evidence and implausible.
Specifically, the Tribunal does not accept as credible or plausible:
· The applicant’s claims and evidence regarding arrests, interrogations and detentions
· The applicant’s claims and evidence regarding his passport
· The applicant’s evidence regarding his practice of Falun Gong in China
·
The applicant’s claims to have been of any adverse interest to the authorities arising from his practice of Falun Gong
(CB 141)As to the applicant’s claims regarding arrests, interrogations and detentions, the Tribunal said this:
The applicant’s evidence at hearing – that he was detained on only three occasions – is at significance [sic] odds with his written statement of 21 June 2006 – namely that he was “frequently taken to the police station” and held for 24 to 48 hours. The applicant made no mention at hearing of any “frequent” detentions or questioning…
The applicant’s failure to make any mention of the “frequent” detentions and interrogations suggests to the Tribunal that he has not been truthful in this matter. It follows therefore, that the Tribunal cannot determine how many times the applicant has been detained or if he has ever been detained. The Tribunal cannot therefore give weight to the applicant’s claims in this regard. (CB 142)
As to the applicant’s passport the Tribunal noted that, by his own admission, the applicant obtained his passport legally and without any problems. The Tribunal noted that independent checks with the Public Security Bureau in the applicant’s place of registered residence would have revealed any adverse records held in respect of him. The Tribunal said:
One of the applicant’s fundamental claims for protection is based on his parents’ practice of Falun Gong in Dun Hua and the adverse treatment they faced arising from this practice. The applicant’s claims and evidence are to the effect that their first serious problem began in late 2003 and very shortly after – because of his parents’ involvement in Falun Gong he was investigated in Shen Yang because of his association with them.
The Tribunal therefore finds the applicant’s explanation for his ease at obtaining a passport – namely that he was able to do so because he obtained it from his place of registered residence – Dun Hua – and there was no record of his detentions (because they occurred in Shen Yang) – to be utterly implausible…
The Tribunal therefore finds the applicant’s explanation regarding this matter – of being able to obtain a passport in Dun Hua – to be lacking in credibility. By the applicant’s own admission the local authorities in Dun Hua had communication with the authorities in Shen Yang because it was only after his parents in Dun Hua were detained that the applicant came to the adverse attention of the authorities in Shen Yang. The Tribunal therefore finds the applicant’s explanation in regard to being able to obtain a passport in Dun Hua, to be fallacious and finds rather, that the applicant was able to obtain a passport because he was of no adverse interest whatsoever for any Convention reason to anyone in China. (CB 143)
As to the applicant’s practice of Falun Gong the Tribunal recorded that the applicant had given inconsistent evidence at the Tribunal hearing about the frequency of his practice of Falun Gong while he was in China and concluded:
In light of the applicant’s numerous and significant inconsistencies about when and where he practiced [sic] Falun Gong in China, the Tribunal cannot be satisfied that the applicant has been truthful about his practice of Falun Gong, and the Tribunal cannot be satisfied that the applicant has ever practiced [sic] Falun Gong in China. (CB 144)
As to the applicant’s claim to have been of adverse interest to the Chinese authorities because of his practice of Falun Gong, the Tribunal recorded that in his Statutory Declaration of 21 June 2006 the applicant said that after his first detention in late 2003 he had been released after he promised not to participate in any more Falun Gong activities. Referring to independent country information, the Tribunal observed that once a practitioner recanted and undertook not to practise Falun Gong any further they cease to be of interest to the Chinese authorities. In light of this, the Tribunal found it implausible that the Chinese authorities would have had any ongoing interest in the applicant after 2003.
The Tribunal said:
In light of the grave adverse credibility findings above regarding the applicant’s claims to have actually been practicing [sic] Falun Gong, it cannot give weight to his claims that he continued to practice [sic] Falun Gong or that he “may” have been informed upon. With regard to the applicant’s claims that people who recant face further problems, the fact that recanting the practice of Falun Gong enables a person to be released from detention suggests to the Tribunal that such people would be of no further interest to the authorities. The Tribunal therefore gives no weight to the applicant’s explanation. (CB 145)
The Tribunal referred to the applicant’s practice of Falun Gong in Australia and found that the applicant had engaged in those activities for the sole purpose of enhancing and strengthening his claim for refugee status and therefore, relying on s.91R of the Act, it disregarded and gave no weight to the applicant’s claim to fear harm upon return to China because of any involvement in Falun Gong in Australia.
The essence of the Tribunal’s findings is found in the summary at
CB 146 where the Tribunal states:
Considering the applicant’s mendacity on not only the essential elements of his claim, as well as the inconsistencies in his claims and evidence, and the inconsistencies with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by the PRC authorities to be a fabrication.
Consequently, it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
Proceedings in this Court
The ground contained in the application is as follows:
I am a citizen of China, arrived in Australia on 10 June 2006 and applied to the Department of Immigration and Multicultural Affairs for a protection visa on 23 June 2006. The delegate decided to refuse to grant the visa on 3 July 2006 and I applied to the Tribunal on 6 July 2006 for review of the delegate’s decision.
I am really Falun Gong practitioner. If I return to China I will be at risk of suffering persecution by Chinese Government.
At the hearing on 18 January 2007 the applicant raised additional matters, namely:
a)the fact that the applicant was able to obtain a Chinese passport did not indicate that he was of no interest to the Chinese authorities;
b)it was wrong to say that he would not be persecuted if he returned to China;
c)the Tribunal’s findings are internally inconsistent in that it concluded that there was a possibility of persecution, a less than 50% chance of persecution, upon his return to China but at the same time it found that he would not be persecuted;
d)the Tribunal member was biased; and
e)the Tribunal breached s.424A of the Act.
Dealing with each of these grounds in turn:
Applicant really was a Falun Gong practitioner
As noted in the Minister’s submissions this is essentially a request that this Court undertake a review of the Tribunal’s fact-finding and conclusions.
The Tribunal’s finding turns on its view of the applicant’s credibility or lack of it. Findings of fact of this nature are not matters which fall within the scope of this Court’s review of the Tribunal’s decision. In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579 – 580 Gummow and Hayne JJ said that the appellant’s contention in that case was:
… 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 a contention could not be advanced as a ground for the grant of prerogative relief. 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 so 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.
Further, as McHugh J said in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]:
In addition, the prosecutor alleges that the tribunal breached s.430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.
Such is the case here. The Tribunal’s emphatically negative view of the applicant’s credibility is fatal to his claim. The basis for such a conclusion is set out in the Tribunal’s reasons and was open to it on the evidence.
The fact that the applicant was able to obtain a Chinese passport did not indicate that he was of no interest to the Chinese authorities
In essence, what the applicant is advancing under this head is an argument that the Tribunal came to an incorrect conclusion as to the significance of his ability to obtain a passport. However, as already noted in relation to the ground of appeal set out in the application, it is not the role of the Court in judicial review proceedings to review the Tribunal’s findings of fact on such issues. As the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53]:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …
It was wrong to say that he would not be persecuted if he returned to China
The essential finding of the Tribunal was that the applicant was not a Falun Gong practitioner whilst in China and his claims to have been persecuted there were not to be believed. For the reasons already discussed, the Court cannot review this conclusion. To the extent that persecution might follow the applicant’s practice of Falun Gong in Australia, the Tribunal did not fall into error in disregarding and giving no weight to the applicant’s fear of harm in China flowing from his involvement in Falun Gong in Australia. It was obliged by s.91R of the Act to disregard the applicant’s practice of Falun Gong in Australia because it found that his involvement in this activity was for the sole purpose of enhancing and strengthening his claim for refugee status. Disregarding and according no weight to the applicant’s claims to fear harm were the logical consequences of being required to ignore the conduct said to give rise to the fear of harm.
Inconsistency in the Tribunal’s findings
In his oral submissions to the Court, the applicant submitted that the Tribunal had found that there was a chance that he would be persecuted if he returned to China while also saying that he would not be persecuted. He said that these findings were not consistent. However, the Tribunal made no findings to the effect of either of these assertions. Rather, it found that the applicant’s claims of harm and threats of harm by the Chinese authorities were fabrications, saying:
… Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason [in] the PRC in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well-founded. (CB 146)
Bias
In his oral submissions to this Court, the applicant submitted that the Tribunal was biased against him. He suggests that this is because he failed to demonstrate emotion at the Tribunal hearing when discussing his detention. He submitted that the Member should not have made a decision based on the applicant’s outward appearance when giving evidence.
Although the Tribunal’s decision makes no reference to the applicant’s demeanour while appearing before it, even if it had, without more, this would not demonstrate bias on the part of the Tribunal. When invited by the Court to identify any other factual material which might support the allegation of bias, the applicant said that he could not provide any further evidence to the Court.
Consequently, this claim is not made out.
Breach of s.424A
When responding to the oral submissions made to the Court on behalf of the Minister, the applicant disputed that he had received information from the Tribunal as required by s.424A. Contrary to this submission, the Court Book makes it clear that the Tribunal sent the applicant’s solicitors a letter in satisfaction of its s.424A obligations (CB 100) and that the applicant’s solicitor replied on his behalf (CB 119). As the Tribunal recorded:
At the conclusion of the hearing (24 October 2006), the Tribunal pointed out to the applicant that there were contradictions in his claims and that it had some concerns with his credibility. The Tribunal wrote to the applicant on 26 October 2006 and gave the applicant the opportunity to clarify the contradictions and inconsistencies that he has made. The applicant did so through his adviser. The Tribunal has given careful consideration to these responses, but cannot be satisfied that they have clarified the significant and numerous contradictions and implausibilities in any meaningful way. (CB 146)
Therefore the Tribunal was not in breach of its s.424A obligations and no jurisdictional error is demonstrated on this account.
Conclusion
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal. Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Parisra Thongsiri
Date: 7 February 2007
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