SZJVY v Minister for Immigration
[2007] FMCA 1798
•25 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1798 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – Tribunal’s decision not affected by lack of logical or rationality – Tribunal did not misunderstand or misapply the relevant test – no failure pursuant to s.424A – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.91R, 424A, 425, 422B |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59; (2003) 77 ALJR 1165 SZFJU v Minister for Immigration & Citizenship [2007] FCA 1461 |
| Applicant: | SZJVY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3716 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 25 October 2007 |
| Date of Last Submission: | 25 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 13 December 2006, and amended on 4 April 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3716 of 2006
| SZJVY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application filed in this Court under the Migration Act 1958 (Cth) (“the Act”) on 13 December 2006, and amended on 4 April 2007, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 25 October 2006 and handed down on 14 November 2006, which affirmed the decision of the delegate of the first respondent to refuse to grant a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 25 July 2005 and applied for a protection visa on 10 August 2005. (The application is reproduced in the Court Book (“CB”) at CB 1 to CB 36, with annexures.) On 19 September 2005, a delegate of the respondent Minister refused to grant a protection visa to the applicant (CB 42 to CB 43). On 21 October 2005, the applicant applied to the Tribunal for review of that decision (CB 54 to CB 57). On 22 December 2005, the Tribunal (“the earlier constituted Tribunal”) affirmed the decision of the delegate of the respondent Minister (CB 71 to CB 73). On 7 July 2006, orders were made by consent remitting the matter to the Tribunal for reconsideration according to law. (The orders of FM Driver are set out at CB 75.) The applicant subsequently appeared before the Tribunal (differently constituted) to give evidence on a second occasion. [By letter dated 14 November 2006 and addressed to the applicant’s last notified address for service (to the Tribunal), the applicant was advised that the Tribunal had affirmed the decision not to grant a protection visa to him (CB 116).]
The applicant’s claims to protection
The applicant’s claims to protection are set out in the statement attached to the application for a protection visa (CB 27). The applicant claimed to be a Falun Gong practitioner who had been introduced to the practice of Falun Gong by his wife, a senior practitioner of Falun Gong. The applicant claimed that he lost his job because of his involvement with Falun Gong, that his wife was taken from the marketplace in April 2004 and that he had since lost contact with her. The applicant claimed that he had been detained while in Beijing, that he was “physically tormented” and questioned by police for two days. The applicant claimed to fear for his safety in China and for that reason he left China leaving his son in the care of relatives, obtained a passport and travelled to Australia.
The Tribunal
The applicant appeared before the Tribunal on 21 September 2006 for the second occasion. The Tribunal’s account of what occurred at that hearing is set out in its decision record at CB 122 to CB 124. As submitted by Mr Potts of Counsel appearing for the first respondent, and as I brought to the applicant’s attention, the Tribunal found that the applicant was lacking in credibility and that it could not accept his claims for that reason (CB 125.5). The Tribunal formed the view that the applicant’s evidence was inconsistent, contradictory and implausible. In its decision record, it specifically identified and set out the contradictions, inconsistencies and implausibilities in the applicant’s evidence and claims (CB 125.5). These were inconsistencies in the applicant’s evidence before the earlier constituted Tribunal, evidence given to the Tribunal as to when he commenced practising Falun Gong (CB 125.6) and evidence as to his claimed practise of Falun Gong in Australia with a Falun Gong group at Campsie (CB 126.4).
The Tribunal found that the applicant had not made contact with the Falun Dafa Association in Australia which led it to the view that the applicant was not a “committed Falun Gong practitioner as he claimed” (CB 125.10). The Tribunal also identified inconsistencies between the applicant’s account of his leaving China under his own name and the independent country information available to it as this went to the issue of whether the applicant was of interest to the Chinese authorities (CB 126.5).
The Tribunal was not satisfied that the applicant commenced practising Falun Gong prior to his arrival in Australia and therefore it was not satisfied that he had been arrested in China in 1999 for practising Falun Gong, nor that he lost his employment for this reason, nor that he had received constant attention from the authorities in relation to this practice of Falun Gong (CB 125.7). Nor did it accept that the applicant’s wife had been detained by authorities in China, nor that the applicant would practice Falun Gong if he were to return to China (CB 126.3). It did not accept that the applicant practised with a Falun Gong group at Campsie, nor did it accept that the applicant has practiced Falun Gong either privately or with any group in Australia since his arrival in Australia (CB 126.4). On the basis of country information available to it as to the difficulties faced by persons of adverse interest to Chinese authorities in leaving China, the Tribunal concluded that because the applicant was able to leave China unhindered, he was not of adverse interest to the authorities (CB 126.7).
In all, therefore, having formed the view that the applicant’s claims lacked credibility and having therefore rejected the relevant and key aspects of the applicant’s claims, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Refugees Convention reason. The Tribunal accordingly affirmed the delegate’s decision.
Application to the Court
I note that the amended application filed on 4 April 2005 puts forward three (unparticularised) grounds:
“1.The Tribunal’s decision was not made with evidence and materials. The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation.
2.The Tribunal failed to consider my claims. My application was not considered in accordance with s.91R of the Migration Act 1958.
3.The Tribunal failed to consider my application in accordance with s.424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.”
I also note that in parenthesis the amended application states, “Please refer to the following pages for details,” but there are not further details on the following pages, but rather there are outlined in the orders the applicant seeks.
Hearing before the Court
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr J A C Potts of Counsel appeared for the first respondent. I also have before me Mr Potts’ written submissions filed 18 October 2007.
At the hearing, the applicant, through the interpreter, read submissions to the Court from a document which I understood to have been prepared in the Mandarin language and which made a number of claims which I understood to be as follows:
1)The Tribunal did not consider his case according to the Migration Act and past cases.
2)The Tribunal was biased.
3)The Tribunal misunderstood his claims.
4)The Tribunal assessed his application based on presumption and not on evidence.
5)The Tribunal did not deal with his application according to s.91R of the Act.
6)There was no basis or evidence to justify the Tribunal refusing the application.
7)The Tribunal did not provide further evidence and material which I understood to be put in support of its decision.
8)The Tribunal’s decision was based on irrelevant materials.
9)The Tribunal had breached the provisions of s.424A of the Act. The applicant submitted to the Court that the Tribunal had done so because it had not informed him of its reasons for refusing his application in writing and had not given him the opportunity to comment before the Tribunal actually made its decision. The applicant explained that he had therefore lost the opportunity to respond and that this was, as I understood it, a breach of s.424A of the Act.
10)The applicant then made what appeared to be a general assertion that the Tribunal did not deal with his matter according to the Act. The applicant’s submission did not say whether this was any assertion of a failure of the Tribunal’s obligations under the Act beyond those matters that he had already raised.
Ground One – No evidence and no rational or logical foundation
Ground one in the amended application asserts that the Tribunal’s decision was not founded on evidence and nor did it have a rational or logical foundation. To the extent that irrationality or a lack of logic can be said to be a ground of review available to the applicant (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59; (2003) 77 ALJR 1165 (at [34] and [37]), I cannot see that the Tribunal’s decision was so affected.
The applicant put his claims to the Tribunal, albeit differently constituted, on two occasions at two hearings. I should also note, as noted above, that the Tribunal had before it country information relevant to the consideration of an aspect of the applicant’s claims, that is, that he was of interest to the authorities in China. In particular, the Tribunal had before it country information that was relevant to the applicant’s capacity to depart China in his own name, unhindered, in circumstances where he claimed he was of interest to the authorities.
Any plain reading of the Tribunal’s decision record, and I note Mr Potts’ submissions in this regard, reveals that the Tribunal formed an adverse view of the applicant’s credibility. In my view, on what is before the Court today, the Tribunal’s conclusions, both as to the applicant’s lack of credibility and its subsequent findings that flowed from that, were all plainly open to it on the material that was before it. Whatever the extent of irrationality as a ground of review, it is not irrational for a Tribunal itself to fail to reach the requisite level of satisfaction such that a protection visa must be granted in circumstances where it forms a clear adverse view of an applicant’s credibility and for which it gives cogent reasons.
It is well-established in matters of this type, and I refer to ss.65 and 36(2) of the Act, that before a protection visa must be granted the Tribunal must form a requisite level of satisfaction that the applicant in effect meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). The Tribunal’s analysis of what was put before it does not reveal any irrationality or, relevantly, any failure in logic.
To the extent that the applicant also complains that the Tribunal’s decision was made without evidence, and to the extent that it may be implied by that that the Tribunal should have found evidence to show that the applicant was not a refugee, then of course there is no such obligation on the Tribunal. As I have already said, the relevant statutory framework requires the Tribunal on the evidence that is put before it to reach a requisite level of satisfaction such that the applicant is, in effect, a refugee.
I also note what Branson J said in SZFJU v Minister for Immigration & Citizenship [2007] FCA 1461(at [10]), that Tribunals often say such things as “no evidence” when what they really mean is that there was “not sufficient evidence.” But I note that this Tribunal decision does not fall into that category. In fact the Tribunal plainly found (at CB 127):
“There is no credible evidence upon which I could find that the applicant stands at serious risk of suffering harm in the reasonably foreseeable future if he returns to China.”
That is, the Tribunal was unpersuaded by the evidence that had been put before it that the applicant was at risk for a Convention reason if he were to return to China. In all, therefore, ground one in the application is not made out.
Ground Two – Failure to consider claims pursuant to s.91R of the Act
Ground two complains that the Tribunal failed to consider the applicant’s claims in accordance with s.91R of the Act. I can only agree with Mr Potts’ submissions that the reference to s.91R does not assist the applicant in this case. It is, as Mr Potts submits, both in writing and before the Court today, that there is nothing to suggest that the Tribunal misunderstood or misapplied the definition or the notion of “persecution” in this matter. Firstly, the Tribunal set out in its decision record its understanding of this concept and its relevance to the definition of “refugee.” While it may be said that it did so in unexceptional terms and in what may be said to be terms regularly seen in Tribunal decisions, nothing can be drawn from that that the Tribunal did not understand the relevant concept, the meaning of the concept and how it was to employ the concept, in consideration of the applicant’s case.
As Mr Potts submitted, this case does not turn on any, as he said, fine understanding of the meaning of “persecution,” as is sometimes the case in matters involving refugee applicants. This case simply turned on the view the Tribunal formed as to the applicant’s credibility and the credibility of his claims. In relation to s.91R(3) of the Act, I also agree with Mr Potts that there was no contravention of this section in relation to the applicant’s conduct in Australia. The applicant, amongst other things, claimed to be a Falun Gong practitioner. As it set out in its findings (at CB 126.9), the Tribunal did not accept that the applicant engaged in any Falun Gong activity or conduct in Australia.
In this context, and relevant to s.91R(3) of the Act, there was no conduct in Australia to which it needed to have regard in order to determine the purpose of engaging in any such conduct. With respect, I agree with what was said by Driver FM in SZIBK v Minister for Immigrationand Multicultural Affairs [2006] FMCA 1167, a case to which I was referred by Mr Potts, and in particular, what his Honour said at [9]:
“There is, in my view, no obligation on decision makers to disregard conduct engaged in, in Australia, unless the decision maker accepts that the conduct, in fact occurred. Section 91R(3) relates to established conduct, not asserted conduct which is disbelieved.”
This squarely applies to the circumstances before the Court now. Therefore, in all, I cannot see that the applicant’s ground as it relates to s.91R of the Act can be made out.
Ground Three – Failure pursuant to s.424A of the Act
Ground three asserts a failure on the part of the Tribunal to fulfil its obligation pursuant to s.424A of the Act, although before the Court today in submissions the applicant appeared to explain the alleged breach of s.424A in terms of the Tribunal not informing him of its reasons for refusing his application in advance of actually making its decision.
Firstly, I note that neither the Tribunal’s reasoning process, nor inconsistencies, constitute information for the purposes of s.424A(1) of the Act. I note that where such inconsistencies are said to arise in an applicant’s evidence, or are inconsistencies as between the applicant’s evidence and country information, such inconsistencies do not constitute “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18], citing with approval the matter of VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, per Finn and Stone JJ at [24]). I note also in this regard, and consistent with what was said in SZBYR, that the notion of “part of the reason” (s.424A(1) of the Act) must be given an appropriately limited meaning (see in particular SZBYR at [15], [21] and [22]).
Further, the evidence before the Tribunal, and I note in this regard what was said by the High Court in SZBYR at [18], the paragraph to which I was specifically referred by Mr Potts today, was material and information that was given to the Tribunal by the applicant himself, or was country information which was available to the Tribunal. In relation to both material given by the applicant and country information, such information falls within the exception contained in s.424A(3) of the Act from the obligations set out in s.424A(1) of the Act.
I should also note that in relation to the evidence that the applicant gave to the earlier constituted Tribunal, this also, bearing in mind the Full Federal Court authority of SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; (2006) FCR 291 (“SZEPZ”), was evidence, “information,” given to the Tribunal such that it falls within the exception contained in s.424A(3)(b).
In relation to the applicant’s submission today in relation to s.424A of the Act and his assertion that the Tribunal breached its obligation by not giving him the opportunity to comment, in effect, on its draft reasons for decision, s.424A does not create such an obligation on the Tribunal. The Tribunal is not obliged to notify or inform the applicant of its relevant reasons for the refusal of his application prior to the making of its decision. The obligation in s.424A(1) of the Act relates to “information” that the Tribunal considers would be the reason, or part of the reason, for affirming the delegate’s decision. As the term “information” is understood according to SZBYR, there was no obligation on the Tribunal to provide its reasons for its decision for the applicant to comment in advance of the making of its decision.
Additional grounds raised in submissions before the Court
In relation specifically to the remainder of the applicant’s complaints put forward by way of submission before the Court today, the applicant stated that the Tribunal did not consider his case according to the Act and past cases. Given what I have already said, I cannot see that any such complaint can succeed on what is before me today. The Tribunal considered the applicant’s claims as it was required to do and as put by the applicant himself to the Tribunal. I have already addressed the applicant’s specific references to ss.91R and 424A of the Act and cannot find any failure on the part of the Tribunal in relation to its obligations as they arise under those sections, bearing in mind, as Mr Potts submitted, that this is a matter to which s.422B of the Act applies with the effect that Div 4 of Part 7 exhaustive statement of natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
In this context, I note that the applicant was given the opportunity of a hearing before the Tribunal, pursuant to s.425 of the Migration Act. There is nothing before the Court to show that this invitation was in any way “a hollow shell” as contemplated in such cases as Mahzar v Minister for Immigration and Multicultural Affairs [2002] FCA 1759 (at [31). On the only account of what occurred at the hearing that has been put before the Court, that is, the Tribunal’s account in its decision record, and bearing in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, it is clear that the issues that were determinative in the Tribunal’s reasoning leading to its decision were put to the applicant at the hearing, and the applicant was given the opportunity to explain and discuss these relevant matters.
I note, for example, that on the issue of the interest of the Chinese authorities, the Tribunal asked the applicant why the authorities had not arrested him when there seemed to have been ample opportunity to do so. The Tribunal records that it mentioned to the applicant that country information accessed by the Tribunal suggested that it was very difficult for a person of adverse interest to the Chinese authorities to depart China in their own name. The Tribunal put to the applicant inconsistencies in his claims as they related to his practice of Falun Gong and gave him the opportunity to explain. It raised with him the issue of his contact with the Falun Dafa Association in Australia and pointed out to him that at the hearing before the earlier constituted Tribunal he had mentioned that he intended to contact the Falun Dafa Association, but on what he had told the Tribunal now that he had not done so. The Tribunal reports that it mentioned its concerns to the applicant in this regard.
The applicant also claimed today that the Tribunal was biased. With reference to relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102), there is simply no evidence put before this Court to support the making of this very serious complaint. It is of course, as Mr Potts submitted, a very exceptional case where bias can be made out simply on what is recorded in a Tribunal’s decision record alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). I cannot see any basis for the applicant’s claim, also made today, that the Tribunal misunderstood his claims. Nor beyond assertion did the applicant say how the Tribunal could be said to have misunderstood his claims.
As to the assertion made today that the Tribunal decision was based on assumptions and not evidence, then such a claim is not made out on what is before the Court. The Tribunal’s decision was based on, to a large extent, what the applicant himself had said to the Tribunal and had put to the Tribunal. As I have already said, in dealing with the stated ground one in the amended application, the Tribunal’s decision was clearly based on the material and the evidence that was put before it.
I have already dealt with assertions made today that the Tribunal had no basis or evidence for refusing the application and that the Tribunal did not provide further evidence and material in support of its decision. I refer to what I have already said in relation to the Tribunal based on what has been put before it needing to reach a requisite level of satisfaction pursuant to ss.65 and s.36(2) of the Act such that a visa must be granted. I repeat, for the applicant’s benefit, that it is not for the Tribunal to find evidence to disprove that an applicant is a refugee, but rather, as I have already said, on what is before it to either reach or not reach the requisite level of satisfaction that the applicant meets the definition of “refugee.” Similarly, the applicant’s complaint that the Tribunal’s decision was based on irrelevant materials is not made out on any plain reading of its analysis, as set out in particular at CB 125 and CB 126.
Simply, and in all, the Tribunal considered the evidence that the applicant himself put before it and the claims that he put before it. In light of what the applicant himself said, and with some reference to independent country information available to it, the Tribunal simply did not believe the credibility of the applicant’s claims. On what was before it this was a finding that was open to the Tribunal, and certainly consistent with what was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (at [67]), in relation to the exercise of the Tribunal’s function. His Honour said that findings of fact, including findings on credibility, are for the Tribunal as the relevant “decision-maker par excellence” (at [67]). It is also, as submitted by Mr Potts today, that even errors in findings of fact, not that I can see any such errors in this case, and nor have any been pointed out to the Court by the applicant, would not amount to jurisdictional error (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).
In all, the Tribunal simply did not believe the applicant. It gave reasons for this and made findings which were open to it on what was before it. I cannot discern jurisdictional error in the Tribunal’s decision, either based on what is stated in the amended application, what has been put by the applicant before the Court today, or otherwise. The application to the Court is therefore dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 15 November 2007
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