SZKBE v Minister for Immigration - [2007] FMCA 1872

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1872

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Migration Act 1958 (Cth), ss.91R(3); 422B; 424A; 424A(1); 424A(3)(a); 474; pt.7 div.4

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Azzi v Minister for Immigration and Multicultural Affairs (2002) 195 ALR 166
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2001) 207 ALR 12

Applicant:

SZKBE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 173 of 2007

Judgment of:

Emmett FM

Hearing date:

7 November 2007

Date of last submission:

7 November 2007

Delivered at:

Sydney

Delivered on:

7 November 2007

REPRESENTATION

Applicant in person with Mandarin interpreter

Counsel for the Respondent:

Ms L. Clegg

Solicitors for the Respondent:

Mr I. Muthalib, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG173 of 2007

SZKBE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant claims to be entitled to a protection visa on the basis that she has a well founded fear of persecution from authorities in the People’s Republic of China (“the PRC”) because she is a Falun Gong practitioner (“the Applicant”). Her application to this Court seeks judicial review of a decision of he Refugee Review Tribunal dated 6 December 2006 to refuse her a protection visa.
On 23 May 2005, the Applicant arrived in Australia having legally departed from the PRC on a passport issued in her own name.
On 15 June 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
The Applicant provided a statement in support of her application in which she claimed to have commenced Falun Gong practice in 1998. The Applicant stated that on 12 June 2002 she was arrested whilst practicing Falun Gong with other members at the home of one of the members. She stated she was detained for one day, warned and fined. The Applicant stated that on 10 February 2003 police again attended a Falun Gong gathering at a member’s home and arrested the Applicant. The Applicant stated that on this occasion she was sentenced to one year’s labour and released in January 2004.
On 21 August 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate noted that the Applicant had not provided any letters of support to substantiate her claims of being a Falun Gong practitioner; that she was able to acquire a valid passport in her own name in August 2005; and that she travelled to Thailand in October 2005 and returned to China in October 2005.
On 5 September 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 6 December 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. The Applicant did not provide any further information in support of her review application.
On 19 September 2006, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The letter invited the Applicant to come to a hearing and to send any new documents or written arguments she wished the Tribunal to consider.
On 27 October 2006, the Applicant attended a hearing before the Tribunal by video link from Melbourne. The Tribunal identified the claims made by the Applicant in her statement in support of her protection visa application. The Tribunal noted further evidence provided by the Applicant orally to the Tribunal essentially expanding on those claims.
On 2 November 2006, the Tribunal wrote to the Applicant identifying concerns it had about the Applicant’s claims. In particular, the Tribunal identified the “very limited knowledge of and familiarity with Falun Gong practices” exhibited by the Applicant at the hearing; the Applicant’s assertion that a travel agent procured her passport through a “special relationship”; the willingness of the Applicant to return to China after visiting Thailand in 2005; and inconsistencies in the Applicant’s claims to have engaged in the practice of Falun Gong whilst in Australia. The letter invited the Applicant to comment on this information.
On 27 November 2006 the Tribunal received a response from the Applicant to its letter dated 2 November 2006. The Tribunal had regard to the Applicant’s response in its decision.
The Tribunal identified independent country information in its decision relating to the “harsh treatment of Falun Gong practitioners in China since the crackdown of July 1999”.
The Tribunal found that the Applicant “displayed little knowledge or understanding” of Falun Gong and displayed “limited knowledge about both theoretical and practical aspects of Falun Gong.” The Tribunal therefore found that the Applicant is not a Falun Gong practitioner and, accordingly, did not accept that she had suffered past harm or detention. The Tribunal also found that the Applicant was not part of a group of persons who would be denied passports by the Chinese authorities and noted that the Applicant was able to obtain a passport in her own name and leave China legally. The Tribunal also noted that the Applicant was able to use her passport to visit Thailand in 2005 and thereafter return to the PRC.
The Tribunal found that the Applicant’s evidence in relation to practicing Falun Gong in Australia was inconsistent and that she had no more than “fleeting contact” with Falun Gong practitioners. Accordingly, the Tribunal was not satisfied that the Applicant engaged in any conduct in Australia relating to the practice of Falun Gong, otherwise, that for the purpose of strengthening her claim to be a refugee. In the circumstances, in accordance with s.91R(3) of the Act, such conduct was disregarded by the Tribunal.
The Tribunal concluded that it was not satisfied that the Applicant faces a real chance of persecution in the PRC in connection with Falun Gong if she were to return to the PRC now or in the reasonably foreseeable future and therefore was not satisfied that the Applicant has a well founded fear of persecution within the meaning of the Convention.
The Tribunal affirmed the decision under review.
On 18 January 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The Applicant confirmed that she relied on an amended application filed on 20 April 2007, which was in identical terms to an amended application filed by her on 16 March 2007. The Applicant also read an affidavit sworn by her on 17 April 2007 annexing a transcript of the Tribunal’s hearing. The Applicant also relied on written submissions filed on 23 October 2007 which, again, were in substantially identical terms to the amended application.
The Applicant declined to say anything further in support of her application.
The amended application relied upon by the Applicant is a long rambling statement that essentially disagrees with the findings and conclusions of the Tribunal. However, at the heart of the Applicant’s complaint appears to be an allegation that the Tribunal failed to give to the Applicant for comment, before the hearing, independent country information to which the Tribunal referred; and that the Tribunal only referred to independent country information that was not in favour of the Applicant. The Applicant also made a bare assertion of “procedural errors in the Tribunal’s decision constituting an absence of natural justice.”
The Court refers to the clear and comprehensive submissions prepared by counsel for the First Respondent, Ms Clegg, in relation to the Applicant’s amended application and adopts those submissions as the Court’s Reasons for rejecting the Applicant’s complaints in relation to the independent country information. Those submissions are as follows:
“15. In essence, the amended application makes two complaints. Both are concerned with the way in which the Tribunal approached independent country information upon which it allegedly relied. The applicant says:
(a) the Tribunal should have complied with s 424A(1) obligation in respect of the independent country information upon which it relied; and
(b) the Tribunal only ‘cited independent country information’ which was not in the applicant’s favour and should have referred to other information which was in her favour;
16. The Tribunal did refer to independent country information in its decision. The independent country information was obviously relevant and highly probative of the issues before the Tribunal. It informed the Tribunal about the beliefs and practices of Falun Gong and the treatment of Falun Gong practitioners in China.
17. A complaint about the Tribunal’s approach to independent country information effectively seeks to re-agitate the merits of the applicant’s claim. In NAHI v MIMIA [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.
18. It is well established that s 424A(1) obligations are not invoked when the Tribunal relies upon independent country information. That is because the information relied upon by the Tribunal in arriving at its conclusion falls within the exception to s 424A found in s 424A(3)(a).[1] So, to the extent that the Tribunal did rely upon independent country information in its Findings and Reasons, it was able to do so without notifying the applicant of the information or inviting the applicant to comment upon it. This is an answer to the applicant’s first complaint.[2]
19. The second complaint alleges that the Tribunal only relied upon independent country information that was unfavourable to the applicant. This is patently not the case. At RD 67.9 the Tribunal expressly acknowledged that some reports suggest that it is not only Falun Gong leaders who can be subject to mistreatment at the hands of the Chinese authorities – but also followers. This information was in fact favourable to the applicant.
20. In any event, the Tribunal is not required to unearth every piece of information ever written about Falun Gong and the attitude of the Chinese authorities to Falun Gong practitioners. The Tribunal has no duty to inquire or investigate.[3] It is for the applicant to make out her case and to persuade the Tribunal that she would be subjected to persecution upon her return to China.
21. In the present case, it was because of her inability to demonstrate basic knowledge about Falun Gong that the Tribunal did not believe that the applicant was a Falun Gong practitioner. Nothing turned upon the distinction between the Chinese government’s treatment of ordinary Falun Gong practitioners and leaders, which the applicant now appears to be advancing by her effective attempt to introduce fresh evidence to this Court.
22. It is clear that the Tribunal’s decision was largely 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.”
“[1] See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW per Beaumont, Merkel and Hely JJ [2004] FCAFC 264; (2004) 140 FCR 572. Note discussion by Beaumont J at [39] – [74] concerning the history of controversy over the interpretation of section 424A(3)(a), concluding that the correct approach to its interpretation was a purposive approach and agreeing with the approach of the Full Court in VHAP v MIMIA [2004] FCAFC 82 that section 424A(3)(a) imposed one test and not two disjunctive elements.
See also QAAC of 2004 v RRT [2005] FCAFC 92 per Lander J at [7] – [30] with whom Lander and Hely JJ agreed.
[2] There appears to be no complaint about the Tribunal’s reliance upon the independent exit procedure information. In any event, this information also fell with the s 424A(3)(a) exception.
[3]Azzi v MIMA (2002) 195 ALR 166 per Allsop J; and MIMIA v SGLB (2001) 207 ALR 12 per Gleeson, Gummow and Hayne JJ at [1], [42] and [43].”
In relation to the Applicant’s complaint about a denial of natural justice, the allegation is not particularised in the amended application.
However, in her “Outline of Submission” the Applicant states that she was denied natural justice because the Tribunal did not consider “the context in which the Applicant will face persecution and serious harm for being a Falun Gong member in China.” It may be that this allegation is no more than a restatement of the Applicant’s complaint that the Tribunal did not consider independent country information in the Applicant’s favour. To that extent, the allegation is covered in Ms Clegg’s submissions referred to above and adopted by this Court as part of its Reasons.
The Tribunal’s obligations of natural justice are confined by s.422B of the Act to compliance with pt.7 div.4 of the Act. Whilst s.424A of the Act forms part of pt.7 div.4, this Court has already found that there was no breach of that section by the Tribunal. Otherwise, the Tribunal complied with its obligations under pt.7 div.4 in the making of its decision, including the conduct of its review.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
In the circumstances, the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The proceeding before this Court commenced by application filed on 18 January 2007 is dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 7 November 2007