SZJSN v Minister for Immigration - [2007] FMCA 624

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 624

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error found – application dismissed.

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

NAHI v Minister for Immigration [2004] FCAFC 10
SBBS v Minister for Immigration (2002) 194 ALR 749
SZBEL v Minister for Immigration (2006) 231 ALR 592

Applicant:

SZJSN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3419 of 2006

Judgment of:

Driver FM

Hearing date:

24 April 2007

Delivered at:

Sydney

Delivered on:

24 April 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
Leave be granted for the applicant to amend the title of the first respondent to the Minister for Immigration & Citizenship in his amended application filed on 5 March 2007.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3419 of 2006

SZJSN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal. The decision was handed down on 26 October 2006. The Tribunal affirmed a decision of a Delegate of the Minister not to grant the applicant a protection visa. The applicant is from China, and has made claims of persecution based upon his practice of Falun Gong. The background to the applicant's claims and the Tribunal decision on them is set out in the Minister's outline of legal submissions filed on 18 April 2007. I adopt as background, for the purposes of this judgment, with any necessary amendments, paragraphs 2 through to 12 of those written submissions:
The applicant, a citizen of China, arrived in Australia on 12 April 2006.[1]
On 19 April 2006 the then Department of Immigration and Multicultural and Indigenous Affairs (Department) received an application for a protection visa from the applicant.[2]
On 8 July 2006 a delegate of the Minister refused the application for a protection visa. [3]
On 8 August 2006 the Tribunal received an application for review of the delegate’s decision.[4] On 18 September 2006 the Tribunal wrote to the applicant and informed him that it was unable to arrive at a decision in his favour on the material before it.[5] The applicant attended a hearing on 6 October 2006 and gave oral evidence. [6]
On 9 October 2006 the Tribunal made a decision, affirming the decision of the delegate.
The applicant filed the application for judicial review in this Court on 21 November December 2006. An amended application was filed on 5 March 2007.
[1] Relevant Documents (RD) 3
[2] RD 1
[3] RD 32
[4] RD 43
[5] RD 50
[6] RD 52, 63
I grant leave for the applicant to amend the title of the first respondent to the Minister for Immigration & Citizenship in his amended application filed on 5 March 2007.
Applicant’s claims
The applicant made written claims in his protection visa application: RD 7. These claims were repeated by the Tribunal at RD 63 when the Tribunal recorded the written claims in its decision.
It is also evident that these claims were expanded upon at the hearing where there was extensive dialogue between the applicant and the Tribunal member: RD 63.8 – 66.3.
In short, the applicant claimed that he had become a Falun Gong practitioner in May 2005. In November 2005 he was arrested by the Chinese authorities in a friend’s home practising Falun Gong. His friend was detained and imprisoned for a year, whilst the applicant was fined RMB40 000 and released. At the time of the applicant’s arrest he had only been practicing Falun Gong once a month. As a result of the incident he lost his job with the company he had worked for many years. He could not enjoy basic human rights and freedom of belief.
Although the applicant claimed that he came to Australia on a tourist visa, his true purpose was to seek relief from persecution by the Chinese authorities. He would be persecuted by the authorities upon his return to China. He has not practised Falun Gong in Australia as the first friend he found in Australia was a Christian person, and he is now interested in Christianity.
The Tribunal’s decision
The Tribunal:
a)referred in its decision to independent country information concerning the Falun Gong movement and the Chinese government’s approach to dealing with Falun Gong practitioners;[7]
b)did not accept that the applicant was ever involved with Falun Gong as he had claimed (noting that the applicant’s knowledge of Falun Gong was ‘so low’ that he could not demonstrate correctly even the simplest of the five exercises);[8]
c)noted the applicant had not practised Falun Gong in Australia at all and found that if he had had a sufficiently strong commitment to Falun Gong to cause him to flee China, he would have expected the applicant to continue practising Falun Gong;[9]
d)found, due to contradictions in the applicant’s evidence about his alleged arrest, that the arrest did not take place;[10]
e)did not accept the applicant was or is a practitioner of Falun Gong and was not arrested, detained and fined by Chinese authorities as claimed;[11] and
f)concluded that the applicant would not face persecution in China because of his alleged practice of Falun Gong, and that he did not have a well founded fear of persecution in China.[12]
[7] RD 66- 68
[8] RD 69.5
[9] RD 69.6
[10] RD 69.9
[11] RD 70.1
[12] RD 70.4
These proceedings began with a show cause application filed on 21 November 2006. In that application the applicant asserted actual notification of the Tribunal decision on 6 November 2006. On that basis, I find that the application was filed within time.
A Registrar gave procedural directions in relation to this matter on 19 December 2006. The Registrar made orders for the filing of additional material, including any amended application and further affidavit, including a transcript of the Tribunal hearing. The applicant has filed an amended application. He also relies upon the affidavit filed with his original application which I accepted as a submission.
The evidence I have before me comprises the court book filed on 8 February 2007, and three letters from the Minister's solicitors to the applicant marked as exhibits R1, R2, and R3.
I understood the applicant to initially deny the receipt of any correspondence from the Minister's solicitors. However, he subsequently acknowledged that he had received three letters. He asserted, however, that his middle name had been misspelt. He was unable to produce any copy letter with that misspelling. The applicant's name was not misspelt on the three letters forming the exhibits.
The applicant asserted, and the Minister conceded, that the applicant was sent the wrong court book by the Minister's solicitors. The correct court book was provided to the applicant in court today. The applicant sought an adjournment by reason of late service of the court book. I declined that request on the basis that the applicant would already be aware of the material in the court book and that he did not suffer any prejudice by reason of the refusal of the adjournment.
The applicant took the opportunity to make oral submissions in support of his application. It was apparent from those oral submissions, the amended application and his affidavit that he asserts bias and breach of statutory duty. There is no substance to the allegation of bias. The applicant himself concedes that the Tribunal made an attempt to exercise its powers properly, although he does not consider that it succeeded in that attempt. He asserts unfairness at the Tribunal hearing which might hypothetically support an assertion of an apprehension of bias. However, in the absence of transcript of the Tribunal hearing, there is no evidence to support that assertion.
The applicant asserts that the Tribunal breached ss.91R and 424A of the Migration Act 1958 (Cth) (“the Migration Act”). Section 91R was referred to by the Tribunal in its reasons. The Tribunal, in my view, understood that section in making its decision and did not breach it.
Neither was there any breach of s.424A. The Tribunal decision turned on the information provided by the applicant at the hearing conducted by the Tribunal. Based upon the applicant's evidence at the hearing, the Tribunal formed the view that he was not a Falun Gong Practitioner as he claimed. There was no obligation under s.424A for the Tribunal to disclose information that the applicant himself presented for the purposes of the review. The applicant is concerned that he was not informed about what the Tribunal thought about his claims and given the opportunity to respond. However, as is now well established, s.424A does not require the Tribunal to disclose its thinking processes.
The position might be different if the Tribunal decision was made on some basis entirely different from that on which the application was dealt with by the Minister's Delegate. In that situation the effectiveness of the hearing to which the applicant was invited might be called into question. I accept, however, the Minister's counsel's submission this is not such a case, and it is not therefore necessary to deal with the reasoning of the High Court in SZBEL v Minister for Immigration (2006) 231 ALR 592.
In other respects, the Minster's written submissions adequately deal with the grounds of review advanced by the applicant. I agree with and adopt with necessary amendments, for the purposes of this judgment, paragraphs13 through to 25 of the Minister's written submissions:
The amended application appears to assert two separate grounds of review. Within the first ground there are a number of allegations which might be said to assert separate grounds of review. They are dealt with below.
Bias and s.91R (ground 1)
The first contention is that the Tribunal was ‘biased and did not consider the application under s.91R of the Migration Act’.
First, it is noted that no particulars have been given, which makes the ground of review difficult to address. However, the Minister notes that an allegation of bias is serious and should not be made without proper basis. In this case there is nothing in the Tribunal’s reasons which conveys even a suggestion of bias, either actual or apprehended.
The applicant could only establish such an allegation by adducing proper evidence to establish that the Tribunal acted dishonestly, arbitrarily or capriciously: SBBS v Minister for Immigration (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56] – [59]. Therefore, the applicant has not discharged the evidentiary burden he bears in connection with a bias claim. This allegation should not have been made.
It is unclear how the bias claim relates to the Tribunal’s considerations under s.91R. Section 91R sets out the meaning of and criteria against which the Tribunal assesses ‘persecution’ for the purposes of ascertaining an entitlement to a protection visa. In this case s .91R did not arise for direct consideration because the Tribunal did not believe the applicant’s factual claims in the first place. Section 91R only requires specific consideration where the Tribunal accepts at least some of the factual claims of the applicant and is then required to consider whether the claimed harm, or fear of harm, actually amounts to persecution. That is not the case here.
The Tribunal did not refer to ‘proper’ independent country information (ground 1)
This complaint seeks to re-agitate the merits of the applicant’s claim. As to the assertion that the independent country information referred to by the Tribunal was not ‘proper’, in NAHI v Minister for Immigration [2004] FCAFC 10 (2 February 2004) at [11] the Full Federal Court observed:
By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function….. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, …….an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
In other words, this is not a proper ground of review. Further, it is noted that to the extent (if any) that the independent country information formed part of the reasons for the Tribunal’s decision, then it fell within the exception to s.424A(1) contained in s.424A(3)(a), so that the Tribunal was not required to invite the applicant to comment upon it.
Breach of statutory duty/s.424A (ground 2)
It appears that the particulars given at page 3 of the amended application attempt to support the alleged breach identified at ground two, namely a breach of statutory duty directed to s.424A of the Act.
Once again, the ground and particulars are formulaic, in the nature of submissions and not directed to the facts of the case.
Section 424A has no practical application on the facts of this case. The Tribunal had no obligations under s.424A(1). The Tribunal’s assessment of the applicant’s claims turned upon information given to the Tribunal by the applicant at the hearing.[13] It was this information which the Tribunal relied upon to assess the applicant’s credibility: see reasoning at RD 68 - 70. Therefore, where the Tribunal took into account information provided to the Tribunal by the applicant, this brought into operation the exception to s.424A(1) contained in s.424A(3)(b).
Further, as stated above, to the extent that the Tribunal relied upon independent country information, this brought into operation the exception to s.424A(1) contained in s.424A(3)(a).
There is no breach of s.424A, or any other provision in the Act.
It is clear that the Tribunal’s decision was based on an unambiguous rejection of the applicant’s factual claims. The Tribunal simply did not believe the applicant’s story. This is fatal to the application for judicial review in this Court.
[13] It is noted that the Tribunal placed some reliance upon inconsistent evidence given by the applicant about the timing of issue of his passport, his arrest and/or his decision to travel to Australia: RD 69.8. To the extent that the Tribunal used the time of issue of the passport against the applicant in an adverse manner, this was information given to the Tribunal by the applicant for the purpose of the application so as to fall within s.424A( 3)(b), as the applicant submitted the passport to the Tribunal member at the hearing: RD 68.9.
There is no jurisdictional error in the decision of the Tribunal. It is therefore a privative clause decision, and the application must be dismissed. I will so order.
The application, having been dismissed, costs should follow the event. The Minster seeks an order for costs fixed in the sum of $3,750. The applicant continued to assert the merits of his judicial review application, but that was not pertinent to the issue of costs. I am satisfied that costs of $3,750 have been reasonably and properly incurred on behalf of the Minster.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,750.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 April 2007