SZJUV v Minister for Immigration
[2007] FMCA 538
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 538 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – merits review not available – bias on the part of Tribunal not proved. |
| Migration Act 1958, ss.91R, 91X, 424A |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 Re Gooliah and Minister for Citizenship & Immigration (1967) 63 DLR (2d) 224 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 |
| Applicant: | SZJUV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3622 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 April 2007 |
| Date of Last Submission: | 12 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. R. Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3622 of 2006
| SZJUV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 5 December 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated
27 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 5 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:
… he stated he was a citizen of the PRC and that in 1996 his family left China to work in Indonesia and as he was unable to get a visa to work in Indonesia, he left China using his PRC passport and travelled to Malaysia and Thailand. The applicant stated he entered Indonesia illegally, without using his passport or obtaining a visa. The applicant stated he re-united with his family in Indonesia. The applicant stated he left Indonesia and entered Australia on 3 May 1997 using a false Indonesian passport because of conflict he had with local Indonesian people his uncle employed. The applicant stated he lost contact with his family and resumed contact with them when they returned to China. The applicant stated he stayed in Australia because he could not return to China. (Court Book (“CB”) page 126).
The applicant claims to fear future persecution in China because of his practice of Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-10 of the Tribunal’s decision (CB 126-132). Relevantly, they are in summary:
a)the applicant stated in his protection visa application that he was a citizen of the People’s Republic of China and that in 1996 his family left China to work in Indonesia and as he was unable to get a visa to work in Indonesia, he left China using his PRC passport and travelled to Malaysia and Thailand, later entering Indonesia illegally without using his passport or obtaining a visa;
b)at the Tribunal hearing the applicant stated that after travelling to Thailand and Malaysia, his uncle helped him to obtain a false Indonesian passport to enable him to reunite with his family in Indonesia;
c)the applicant said that he was working in his uncle’s gold shop and that he had conflict with the local people working in the business. The conflict escalated until his uncle sacked one of them;
d)this person hated the applicant very much and accused him of being the cause of him losing his job and later this person came with others and beat the applicant;
e)the applicant was afraid this would happen again so his uncle decided that he should leave in order to avoid the dismissed employee for a while;
f)the applicant used his fake Indonesian passport to enter Australia on 3 May 1997, rather than return to China;
g)in 1998, while in Australia there was an uprising against Chinese people in Indonesia and he lost contact with his family;
h)the applicant stayed in Australia and did not return to China because he was afraid he would not be able to use his false Indonesian passport to re-enter Indonesia;
i)he lost contact with his family for two to three years although in his protection visa application the applicant said that he resumed contact with his family when they returned to China;
j)in around August or September 2000, while in Australia, the applicant came in contact with Falun Gong by coincidence. He had been working as a painter and whilst working for a household he found a book on Falun Gong, which he found very interesting. The owner of the house told him about a bookshop with more Falun Gong material and from the books the applicant found websites providing him with more information about Falun Gong;
k)in his protection visa application the applicant said that he started practising Falun Gong in September 2000 in a park opposite Victoria Markets in Melbourne until he moved to Sydney in 2001. When he moved to Sydney he went to practise once in Hyde Park, twice in a park in Auburn and once in Lidcombe but the times clashed with his work, so he had to practise privately at home. The applicant also stated that in Sydney he went to some of the Falun Gong demonstrations outside the Chinese Consulate;
l)by contrast, in his evidence at the Tribunal hearing, the applicant indicated that he practised about once or twice per week, doing exercises and meditation. Depending on his commitments, he goes once a week to practise in the park. When asked to explain why he indicated in his protection visa application that he had practised only a few times in public, the applicant said that it must have been a misinterpretation. He stated that he practised at home for more then 12 months after arriving in Sydney and he now practises about once per week. He stated that he also studies in the evening at Parramatta and has done so for three to four years; and
m)the applicant’s father now practises Falun Gong and was detained then released. The applicant claims that his aunt has also been detained for practising Falun Gong. The applicant fears that if he were to return to China, he will be persecuted for practising Falun Gong.
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 concluded that:
a)it was not satisfied for the purposes of s.91R(3) of the Act that the applicant had engaged in Falun Gong practices otherwise than for the sole purpose of strengthening his claim to be a refugee; and
b)it found that the applicant was not a witness of truth and could not be believed in general.
The Tribunal’s decision was based on the following findings and reasons:
a)the applicant’s first protection visa application, which was signed on 11 December 2000 and was subsequently deemed to be invalid, is in the false Indonesian identity the applicant states he used to enter Indonesia and Australia;
b)the claims in this first application, which the Tribunal found were false, were extensive and were based on the applicant being an ethnic Chinese from Indonesia and his fear of returning to Indonesia because of his and his family’s past experiences there, including:
i)the destruction by Buddhists of a Chinese Church of Christ, of which he stated his father was the priest, and the consequence of his subsequent retaliation;
ii)the formation of an Indonesian Chinese Alliance of Unity and its persecution by anti-Chinese officials of the Indonesian government; and
iii)the brutal gang rape of his wife and possible murder by people associated with the Indonesian government;
c)the Tribunal found that these claims in the first invalid application were fabricated and were not true;
d)in respect of this first application, the applicant stated that he told his situation to a friend in Melbourne who told him he would apply for a protection visa. The applicant stated that he did not fill in any forms or sign anything. He stated he told his friend his story, paid him $300 and gave him all his details, including the names of his wife and son and his false Indonesian passport;
e)the Tribunal did not accept that the detailed claims in the applicant’s false Indonesian identity made in his original protection visa application were lodged without his knowledge or consent; and
f)the Tribunal concluded that it was not plausible that the applicant, as he claimed, continued to use the false Indonesian identity because it was the identity he used to enter Australia and he thought once his protection visa application was processed everything to do with his identity and status in Australia would be cleared.
In essence the Tribunal found:
The applicant’s preparedness to lodge a protection visa application in a false identity with the fabricated claims set out above and to maintain that false identity in Australia is so significant and serious that the Tribunal finds he is not a witness of truth and cannot be believed more generally.
The Tribunal accepts that the applicant has acquired knowledge of Falun Gong since he arrived in Australia. The Tribunal accepts that the applicant has taken part in Falun Gong activities in Australia, as indicated in the photographs he produced with his protection visa application. However, the Tribunal is not satisfied for the purposes of s.91R(3) of the Act that the applicant engaged in this conduct otherwise then for the sole purpose of strengthening his claims to be a refugee. (CB 133).
Proceedings in this Court
The grounds of the application are pleaded as follows:
1 I am a Falun Gong practitioner. I was practicing [sic] Falun Gong in September 2000 until now.
2 Falun Gong was banned by Chinese authorities in China.
3 I’m really worried about that if I return to China. I will face persecution by Chinese authorities.
What the applicant is inviting the Court to do in those pleaded grounds is to reconsider his application on the merits, something which this Court cannot do in judicial review proceedings such as this. It should also be observed that the Tribunal's findings were open to it on the evidence.
In relation to the limitation on this Court in judicial proceedings such as these it is worth referring to certain authorities. In Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547, the Full Court of the Federal Court said at page 558:
In answering this question it is important for us to bear in mind that it is not open to the appellant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
“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 a 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.”
Moreover, for present purposes, the crucial criterion for the grant to the appellant of a protection visa was that the Minister, or on review the RRT, is “satisfied” that the appellant is a person to whom Australia has protection obligations under the Refugees Convention. A decision as to "satisfaction" is not immune from review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). However, it is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa.
Similarly, in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579 [195] Gummow and Hayne JJ said this:
But leaving this issue to one side, it must be noted that the latter form of contention (that the Tribunal should have concluded that the applicant had been raped) is 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.
Further, it is important to observe that the Tribunal's decision in this case was significantly based on its findings as to the applicant's credit. As McHugh J pointed out in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], a finding on credibility is the function of the primary decision-maker par excellence. Consequently, to the extent that the applicant's pleaded grounds of review set out in his application purport to raise issues of jurisdictional error they fail.
In his oral submissions to the Court the applicant raised further issues, namely:
i)the applicant was questioned multiple times about his passport by the Tribunal member;
ii)there was a translation issue in relation to his Falun Gong practices in Australia; and
iii)the applicant’s friend had completed his original visa application.
Dealing with these issues in turn:
The applicant was questioned multiple times about his passport by the Tribunal member
It is important to keep in mind, as regards the number of times the applicant was questioned about his passport, that whether he gave his passport to the Department or whether his friend gave his passport to the Department was not an issue on which the Tribunal's decision turned. The Tribunal’s decision turned on the fact that he had, amongst other things, a false passport and had continued to use the identity which was contained in that passport throughout much of his time in Australia.
In light of the significant issues identified by the Tribunal concerning the applicant's identity, the fact that the Tribunal posed several, possibly many, questions to him on the subject of his passport is not obviously objectionable in the absence of evidence to demonstrate that the conduct was unreasonable. However, there is no such evidence before the Court. Notwithstanding that in the directions made by me on 12 February 2007 the applicant was directed to file and serve any affidavit material containing additional evidence relied upon, including the transcript of the Tribunal hearing, no such transcript has been produced to the Court. In the absence of evidence setting out with clarity and precision the conduct of the Tribunal hearing, no conclusion can be drawn that the questioning by the Tribunal on this issue was exceptionable.
This assertion from the Bar table concerning the conduct of the Tribunal hearing also impliedly raises issues of bias. As to actual bias North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at page 562:
Actual bias exists when the decision-maker has prejudged the case against the applicant or acted with such partisanship or hostility as to show that the decision maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
A consideration of the Tribunal's decision record in this case does not indicate that the Tribunal's mind was closed. Returning to what
North J said, his Honour went on to refer to the Canadian case of
Re Gooliah and Minister for Citizenship & Immigration(1967) 63 DLR (2d) 224 as demonstrating that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of prejudgment. His Honour observed that it is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. For the reasons already given I am not satisfied that there is evidence of actual bias on the part of the Tribunal.
As to the possibility of apprehended bias, again the absence of a transcript is a severe impediment to the applicant making out this assertion. In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] - [28] Gleeson CJ and Gaudron and Gummow JJ said this:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer may reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that Court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as in the case of the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
There is no objective evidence in this case that the Tribunal's questioning of the applicant in relation to his passport amounted to conduct such that a fair-minded lay observer might consider that the Tribunal was biased. This potential ground of review drawn by inference from the applicant's assertions is not made out.
There was a translation issue in relation to his Falun Gong practices in Australia
The applicant also drew attention to the fact that his protection visa application gives one version of his Falun Gong observances in Australia. His evidence at the Tribunal gives another. The applicant pointed out that at page 128 of the Court Book he identified to the Tribunal in relation to the visa application that there may have been a misinterpretation. That passage also records that the applicant said that the interpreter just asked him about his practice of Falun Gong and not about his study.
However, the Tribunal did send a letter pursuant to s.424A(1) of the Act to the applicant dated 12 October 2006 (CB 111-114) which, in the final paragraphs of CB 112 and the early paragraphs on CB 113, raised these inconsistencies. The applicant's adviser responded to the s.424A letter by facsimile dated 26 October 2006 (CB 115-116). In response to the Tribunal's queries regarding the inconsistencies, the applicant's adviser said this:
In terms of practicing [sic] Falun Gong [the applicant] states that he first came into contact with Falun Gong when he found a book where he was working as a painter and started practicing [sic] Falun Gong in a park opposite Victoria Markets in September 2000.
After arriving in Sydney [the applicant] practiced [sic] for more than 12 months at home when he could not attend Falun Gong practice because it clashed with his work. At other times [the applicant] continued attending Falun Gong practice.
[The applicant] is forwarding evidence that he attends Falun Gong practice at Parramatta.
[The applicant] states that he did not start practicing [sic] Falun Gong to strengthen his claims to be a refugee but because he became interested in Falun Gong and is able to practice [sic] in Australia, something which was not possible in China.
A number of points need to be made in relation to this asserted ground of review. Firstly, the applicant was given an opportunity at the Tribunal and subsequently by the s.424A letter to clarify any issues regarding his practice of Falun Gong. Secondly, the Tribunal does not dispute that the applicant practises Falun Gong. The question is whether that practice is such that it attracts the operation of s.91R of the Act. Further, as has been pointed out by the Minister's representative no complaint is made in respect of translation services provided at the Tribunal hearing and these proceedings are concerned with the fairness of the proceedings before the Tribunal.
This asserted ground of review is not made out.
The applicant’s friend had completed his original visa application
In his final submissions to the Court the applicant observed that the finding of the Tribunal was affected by the first protection visa application which he lodged. He submitted that this application had been completed by his friend. The Tribunal made a finding in relation to the way that first visa application form had been completed. Its finding was that it did not accept that the detailed claims which were lodged at that time were lodged without the applicant's knowledge or consent. It is not for the Court to reconsider the Tribunal’s finding of fact on that point.
Conclusion
Consequently, jurisdictional error on the part of the Tribunal has not been shown and the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 12 April 2007
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