SZJVG v Minister for Immigration
[2007] FMCA 718
•23 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 718 |
| MIGRATION – Bias, not established – must show that Tribunal acted dishonestly, arbitrarily or capriciously – apprehended bias – whether fair-minded lay observer would reasonably apprehend that an impartial mind may not be brought to the question – findings as to credibility, subjective appraisals, and thought processes or determinations by the Tribunal are not covered by s.424A(1). |
| Migration Act 1958, ss.91R, 424A, 474 |
| SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 194 ALR 749 SAAP v Minister for Immigration and Multicultural and Industrial (sic) and Ethnic Affairs (2005) 215 ALR 162 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Re Refugee Review Tribunal & Anor; ex parte H & Anor (1979) ALR 425 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 |
| Applicant: | SZJVG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3670 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 23 April 2007 |
| Date of Last Submission: | 23 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitor for the Respondents: | Mr O. Young of Blake Dawson Waldron |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3670 of 2006
| SZJVG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 8 December 2006 for an order to show cause and seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. An amended application was filed on
27 March 2007.
The applicant was born on 15 April 1969 and claims to be from China (“the Applicant”).
The applicant arrived in Australia on 8 July 2006 on a visitor’s visa and a passport issued in Liao Ning.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 11 July 2006. In this application he claimed that he would be persecuted because he was a practitioner of Falun Gong. The applicant claimed that he was mentally and physically tormented while in Beijing due to being a practitioner of Falun Gong. He claimed that he was called to the police station many times, and that his family were threatened numerous times by the PRC authorities (CB 30).
This application was refused by a delegate of the first respondent on 4 August 2006.
On 7 September 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on
17 October 2006 at which time he also maintained the claims made in his original protection visa application.
On 9 November 2006 the Tribunal handed down its decision dated
20 October 2006. The Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 72-75) (emphasis added):
The applicant travelled to Australia on a Chinese passport and claims to be a national of China. The Tribunal accepts that the applicant is a national of China and has assessed his claims against China as his country of nationality.
The Tribunal accepts that Falun Gong may be considered to be a religion and that those practising Falun Gong may constitute a particular social group. On the basis of independent evidence cited above, the Tribunal also accepts that Falun Gong practitioners face persecution in China and that such persecution is for a Convention reason. However, for the reasons that follow, the Tribunal is not satisfied that the applicant was involved with Falun Gong as he claims.
The Tribunal found the applicant to be an untruthful and evasive witness. The applicant’s evidence lacked credibility and consistency.
When questioned about the basic tenets of Falun Gong, the applicant was unable to provide any information to the Tribunal. He was unfamiliar with the number of exercises, their names or purpose. He did not know what the main book of Falun Gong was. He could not state the basic principles of Falun Gong such as truthfulness, compassion and tolerance. The Tribunal would expect someone who claims to be a regular practitioner to be cognisant of the basic information about Falun Gong, yet, the applicant displayed very limited knowledge about Falun Gong. The Tribunal finds this to be inconsistent with the applicant’s claim that he practiced Falun Gong daily for a period of seven years. The Tribunal does not accept that the applicant practiced Falun Gong since 1999 or at any time in the past.
The Tribunal also rejects the applicant’s claim that he was involved in pro-Falun Gong activities in Beijing. The Tribunal finds the applicant’s claims with respect to the incident in Beijing implausible. When asked why he travelled to Beijing, the applicant initially stated that ‘there was no special purpose’. He then stated that he went to Beijing because his workmates went and asked him to travel with them. This is inconsistent with the applicant’s evidence in the statement, which he provided to the Tribunal prior to the hearing, that he went to Beijing “to ask for fair treatment of Falun Gong”.
The applicant subsequently stated that they went to Beijing looking for the government. The applicant was unable to state where in Beijing he went. When asked what the group planned to do once in Beijing, the applicant stated that they did not have any special plans. The Tribunal finds the applicant’s evidence implausible. The Tribunal rejects the applicant’s evidence and finds that the applicant was not truthful with respect to this aspect of his claims. The Tribunal does not accept that the applicant went to Beijing or that, if he did, such a trip had any connection with his involvement with Falun Gong. The Tribunal does not accept that the police approached the applicant in Beijing but he ran away to Liaoning. The Tribunal does not accept that the applicant came to the attention of the authorities as a result of a trip to Beijing.
The Tribunal rejects the applicant’s claim that he was detained for fifteen days because of his involvement with Falun Gong. The applicant was vague in his claims about detention. He initially stated that he could not remember when he was detained and subsequently he said it was in January. The applicant stated that he came to the attention of the authorities because he practiced in public, although he stated earlier that he practiced at home in the morning before going to work. The applicant stated at the hearing that he was only questioned once while in his written statement he refers to ‘several times’. Because of these inconsistencies, the Tribunal finds the applicant’s evidence to be untruthful. As the Tribunal does not accept that the applicant practiced Falun Gong, either in private or in public, the Tribunal does not accept that he was detained by the authorities because he practiced. The Tribunal also does not accept that the applicant and his family were threatened by the Chinese authorities. The Tribunal does not accept that the applicant or his family were of any interest to the authorities.
The Tribunal is supported in this finding by the fact that the applicant had no problems in obtaining his passport in 2004 and in departing China. The independent country information cited above indicates that stringent procedures apply when obtaining passports and when departing the country. The applicant stated that he paid the standard fee of RMB 200 when he applied for the passport and he had no problem in obtaining the passport. The only help he received from a friend when obtaining the passport was that the friend drove him to the passport office. The applicant also stated that he had no problems when departing China. The Tribunal finds this to be inconsistent with the applicant’s claim that he was of continuous interest to the authorities. The Tribunal finds that the applicant was of no interest to the authorities.
The Tribunal also rejects the applicant’s evidence that the authorities were looking for him but could not find him. The applicant confirmed at the hearing that he resided at the same address between 1999 and 2005. Although there were inconsistencies in the written evidence the applicant provided when applying for the visa and oral evidence at the hearing concerning the applicant’s place of residence, the Tribunal does not consider it necessary to resolve this inconsistency and does not draw any adverse conclusions from it. The applicant’s oral evidence indicates that between 1999 and 2005 the applicant resided at one address. The Tribunal accepts that evidence.
The Tribunal finds that the applicant resided at one address from 1999 to 2005. Although he sometimes travelled to his home, he would return to his address in Sujia Dun within a matter of days. The Tribunal is of the view that the applicant’s continuous residence in one address for a period of six years would have enabled the authorities to locate the applicant, if he was a person of interest. The applicant could not explain to the satisfaction of the Tribunal why this would not be the case. The Tribunal finds that the applicant was not of interest to the authorities in the past and he will not be of interest to the authorities in the future because of his alleged involvement in Falun Gong. The Tribunal rejects the applicant’s claim that he would be tortured or killed if he were to return to China.
The Tribunal is not satisfied that the applicant had practised Falun Gong in the past or that he continues to do so in Australia. The Tribunal finds that the applicant has no genuine ongoing interest in Falun Gong. The Tribunal is not satisfied that the applicant, if he returns to China now or in the foreseeable future, will engage in the practice of Falun Gong. The Tribunal finds that the Chinese authorities have no ongoing interest in the applicant for any reason.
The Tribunal finds that if the applicant returned to China now or in the reasonably foreseeable future, there is no real chance that he would face any harm because of his alleged involvement with Falun Gong or his alleged practice of Falun Gong. The Tribunal finds that if the applicant were to return to China now or in the reasonably foreseeable future, there is no real chance that he would suffer serious harm for the reason of his involvement with, or practice of, Falun Gong or for any other Convention related reason.
Based on all of the above and having considered the applicant’s claims individually and cumulatively, the Tribunal finds that the applicant does not have a well founded fear of persecution within the meaning of the Convention.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out four grounds as follows:
1)The Tribunal had bias against me and refused to accept my explanations at my hearing; the Tribunal failed to consider my claims and therefore did not consider my application according to s.91R of the Migration Act 1958.
2)The Tribunal failed to carry out its statutory duty. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I lost the opportunity to comment upon it. The Tribunal therefore failed to consider my application according to s.424A of the Migration Act.
3)The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation.
4)A copy of the decision letter is attached.
In his amended application, the applicant set out the following grounds and particulars:
1)The Tribunal had bias against me and did not consider the full information provided at my hearing. The decision to refuse my application for a protection visa was not based on evidence and materials, but assumption of the Tribunal.
2)The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. I lost the opportunity to comment upon it. The Tribunal failed to consider my application in accordance with s.424A of the Migration Act 1959 (sic 1958).
The grounds of the Applicant are:
Particulars:
a)The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
b)The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
c)The above particulars had to be provided in writing SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL (sic Indigenous) AND ETHNIC AFFAIRS (2005 HCA 24 (18 May 2001).
McHugh J
Para68 “…The assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness in the way in which the Tribunal observes its statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the mandatory nature of the obligation in s.424A(2) (b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s.424A.”
Para77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function…it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act…a decision made after a breach of s.424A is invalid.”
Hayne J
Para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as is reasonably practicable that the appellants understand why it is relevant to the review. The Tribunal failed to do so constituted jurisdictional error.”
Para 208 “Whether those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
d)The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa.
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) (sic 2001) 110 FCR 27
Para 17 “…In our view, ‘applicant’ wherever appearing in s.424A means ‘application for review by the Tribunal of a ministerial decision’ and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The Court did not accept the Minister’s argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
e)The Tribunal based its findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
Findings as to the grounds of the application
Ground 1 alleges bias. The Court accepts the submission by the first respondent that “To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously’: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59]”. “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.” Re Refugee Review Tribunal & Anor; ex parte H & Anor (1979) ALR 425 at [27].
Nothing has been put to establish bias (actual or a reason for apprehended bias). The Court rejects this claim.
The second claim in ground 1 is that the Tribunal failed to consider the applicant’s claims. The Court rejects this contention. The Tribunal recorded the applicant’s claims in its decision (CB 67) and covered them extensively when the applicant appeared at the hearing on
17 October 2006 (CB 67-70). The Tribunal set out its conclusions on the claims (CB 72-75).
The Tribunal rejected much of what the applicant claimed. These matters have been highlighted by the Court in the quotation from the decision. The Tribunal reached these conclusions on the evidence after considering the claims and after discussing them with the applicant. The Tribunal decision shows that it raised with the applicant at the hearing the concerns it had with his claims (CB 67-70).
The conclusions by the Tribunal rejecting the applicant’s claims and evidence are findings of fact, which were properly open to the Tribunal. They are not subject to review.
Ground two alleges a breach of s.424A of the Migration Act. The Court accepts the submissions by the first respondent that the Tribunal’s decision was based almost entirely on a rejection by the Tribunal of the applicant’s credibility. That assessment was based largely on information given to the Tribunal by the applicant for the purpose of the application, which is subject to the exemption in s.424A(3)(b). The country information relied on by the Tribunal to conclude that the “applicant’s ability to leave China with apparent ease suggested that he was not of interest to the authorities”, is covered by the exception in s.424A(3)(a).
The Court finds no breach of s.424A. Findings as to credibility are part of the Tribunal’s subjective appraisals, thought processes or determinations, and are not “information” for the purposes of s.424A(1): SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
Ground three complains that the decision of the Tribunal that the applicant is not a refugee, is not rational and logical. The Tribunal set out its reasons for making that finding. The Court finds no reviewable error.
Ground four merely attaches a copy of the “decision letter”. It raises no ground for review.
Findings as to the grounds of the amended application
Ground one alleges bias. As stated above this has not been established. The claim is rejected. Ground one then claims that the decision was not based on evidence and materials but on assumptions made by the Tribunal.
The Court finds that the decision of the Tribunal was based on a rejection of the applicant’s credibility. Those findings were properly open to the Tribunal and show no cause for review. Ground one is rejected.
Ground two alleges a breach of s.424A. That claim is rejected for the reasons stated above. Particular (b) alleges a breach of s.424A, which is rejected for the reasons stated above. Particular (c) refers to the decision in SAAP v Minister for Immigration and Multicultural and Industrial (sic Indigenous) and Ethnic Affairs of 18 May 2001. The passages set out by the applicant come from the decision in SAAP v Minister for Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. Those passages go to the mandatory nature of s.424A, as the section describes “a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case.”
Having decided that s.424A(1) is not enlivened in this case, as the material relied on by the Tribunal is covered by exceptions in s.424A(3), the above decision is of no relevance.
In particular (d) the applicant refers to the decision in Minister for Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in support of the proposition that only information given to the Tribunal by the applicant for the purpose of the application is covered by the exception in s.424A (3)(b). The Court accepts that as a correct statement of the law. However, there is nothing to indicate to the Court that the Tribunal relied on “information that the Tribunal considers to be the reason or part of the reason, for affirming the decision that is under review”, other than information provided to it by the applicant for purposes of the application, and country information. It is apparent that the Tribunal did not base its decision on the material referred to in para 1 on CB 67. It is apparent from the decision that the Tribunal relied on the information given to it by the applicant in his written application, and when appearing before it. The only other information relied on was the country information referred to above. Information given to the Tribunal by the applicant for the purposes of the application is covered by the exception in s.424A(3)(b). Country information is covered by the exception in s.424A(3)(a).
It is clear from the decision of the Tribunal that it affirmed the decision under review because it rejected much of the applicant’s evidence.
Particular (e) alleges that the Tribunal based its decision on information contained in the applicant’s application for a visa and therefore breached s.424A(1) by not giving particulars of it to the applicant and explaining why it is relevant. The Court rejects this allegation.
The Tribunal based its decision on its findings that it did not accept the evidence give to it by the applicant. The Tribunal stated at CB 70.10 that it received advice from the Department of Immigration that the applicant may be an impostor, but the Tribunal stated that it placed no weight on that information in reaching its decision (CB 70.10).
Under the heading “Evidence from other sources” (CB 71.1) the Tribunal gives detail of material it had about Falun Gong. It is clear from the Tribunal’s decision that this material was not the reason or part of the reason for the decision. At CB 72.1 the Tribunal refers to new regulations in China about religious affairs. It is apparent from the decision of the Tribunal that this information was not the reason or part of the reason for affirming the decision under review.
At CB 72.3 the Tribunal refers to country information about rules for issuing passports becoming more stringent. Insofar as that information was relied on, it is covered by the exception in s.424A(3)(a). The Court finds no breach of s.424A.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 14 May 2007
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