SZKBG v Minister for Immigration
[2007] FMCA 1435
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1435 |
| MIGRATION – Applicant must establish their case – Tribunal may accept or reject evidence as it thinks appropriate – weight a matter for the Tribunal – to comply with s.430 Tribunal need not refer to material that would tend to undermine its findings. |
| Migration Act 1958 (Cth), ss. ss.36(2), 91R, 424A, 430, 474, 477 |
| Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Devries v Australian National Railways Commission (1993) 177 CLR 472 Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24 |
| First Applicant: | SZKBG |
| Second Applicant: | SZKBH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 175 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 14 May 2007 |
| Date of last submission: | 14 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms K. Lockerby of Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 175 of 2007
| SZKBG |
First Applicant
| SZKBH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 18 January 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 December 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants protection visas. The applicants have not filed an amended application.
The first-named applicant was born on 27 November 1957. His wife, born 24 December 1958, is the second-named applicant in these proceedings. The applicants claim to be from China and of Chinese ethnicity.
The applicant wife arrived in Australia in August 1997 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 22 September 1997. That application was refused by a delegate of the Minister on 20 October 1997, which was affirmed by the Tribunal on review on 23 November 1998 (CB 103).
The applicant husband arrived in Australia on 20 April 1998 and applied to the Department of Immigration and Multicultural Affairs for a Business Long Stay visa. That application was refused on 23 September 1998 (CB 103). The applicants’ son arrived in Australia on 23 October 2003 (CB 48).
On 27 January 1999 the applicant husband lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (hereinafter “the applicant”). His wife was included in the application as a member of the family unit. In this application he claimed that the Chinese Communist Party (CCP) was a “dead party” and that he could not tolerate the “obsession from the CCP” (CB 28). The applicant claimed to have had an argument with the “top leader” of his work unit during which “I said the Chinese Communist Party would disappear and China would go back to the Capitalist society again” (CB 28). The applicant was accused of being counter-revolutionary and his work leader reported him to the police. The applicant claimed that he was dismissed from his work and subsequently investigated by the Public Security Bureau. As a result of the whole incident, he was unable to find employment in China (CB 28).
This application was refused by a delegate of the first respondent on 3 March 1999 (CB 30-40). After an officer of the Department found that the applicants had not been correctly notified by letter dated 3 March 1999 (CB 103), the applicants were re-notified of the Tribunal decision on 6 October 2006 (CB 41).
On 30 October 2006 both applicants filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 43). Their son was included as the third applicant. The husband and wife applicants gave oral evidence before the Tribunal on 6 December 2006. The applicant husband rejected the claims made in his original protection visa application (CB 109) and instead sought to rely on a written statement dated 7 November 2006 (CB 48-53). In this statement he made two new claims: first, that he and his wife were involved in the 1989 pro-democracy movement which resulted in their persecution by the Chinese authorities (CB 49-50), and second, that since their arrival in Australia, the applicants have become Falun Gong practitioners (CB 51-52).
On 12 December 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the first-named applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 117-123) (highlighting added):
The applicants travelled to Australia on valid Chinese passports and claim to be nationals of China. The Tribunal accepts that the applicants are nationals of China and has assessed the claims of the applicant husband against China as his country of nationality.
At the hearing the applicant had abandoned his claims of persecution which he set out in the primary application. The applicant stated that none of the claims set out in his primary application were true. The Tribunal accepts the applicant’s evidence on this issue and finds that the applicant did not have an argument with his manager at work and did not express an opinion adverse to the Chinese Communist party. The Tribunal finds that the applicant did not come to the attention of the authorities because of expressing an anti-government political opinion at work. The Tribunal finds that there is no real chance of the applicant being persecuted in China now or in the reasonably foreseeable future for the reason of his expressing a political opinion at work.
The applicant’s claim, as they emerged in written evidence to the Tribunal and in oral evidence, is that he faces persecution by the Chinese authorities because his wife was involved in the pro-democracy movement in 1989 and took photographs of the Tiananmen Square incident. The applicant claims that he was questioned in 1989 with his wife and that he was detained and mistreated in 1997, after his wife left for Australia. The applicant claims that from that time and until he departed China in 1998, he was continuously monitored by the authorities and the local household committee.
For the reasons that follow, the Tribunal does not accept that the applicant came to the attention of the authorities in China because of his wife’s involvement in the pro-democracy movement or that he was persecuted by the authorities for that reason.
When asked why the applicant would be mistreated in 1997, eight years after the events in Tiananmen Square, the applicant explained that after his wife left for Australia, he wanted to send her the photographs and, by doing so, he came to the attention of the authorities. The applicant has not claimed that he was personally involved in any activities relating to the pro-democracy movement, but the reason for the claimed persecution was his wife’s photographs which the applicant refused to hand over to the authorities.
The Tribunal asked the applicant why the authorities would take such a great interest in the photographs several years after the 1989 events, when a multitude of photographs and other materials concerning the Tiananmen Square events were widely publicised and broadcast and freely available in the Western world. The applicant has not provided a satisfactory answer, other than to say that the authorities were looking for the photographs. The Tribunal considers it implausible that in 1997 or 1998, eight to nine years after the events of the Tiananmen Square, the authorities would maintain such a strong interest in the photographs of the event. The Tribunal cannot accept that the applicant was targeted by the authorities because of the photographs.
This view is supported by independent country information, cited above, which suggests that by mid-90s the authorities had little interest in those who participated in the pro-democracy movement with the possible exception of the main organisers. The applicant does not claim that he was such an organiser. Indeed, the applicant does not claim that he participated in any way in the pro-democracy movement. The country information suggests that the Chinese authorities are no longer paying significant attention to the participants of the 1989 pro-democracy movement and that members of the movement are permitted to participate in the country’s social, economic and educational activities.
For these reasons, the Tribunal does not accept that the applicant would have been of interest to the authorities because of the photographs relating to the Tiananmen Square events, taken by his wife. The Tribunal finds that there is no real chance that the applicant will face persecution because of his or his wife’s involvement in the pro-democracy activities, if he were to return to China now or in the foreseeable future.
The Tribunal is also concerned about the applicant’s migration history. The applicant entered Australia on a passport issued to him in September 1997 and he entered Australia on a business visa which was issued to him in April 1998. The applicant explains in oral evidence and in response to Tribunal’s s 424A correspondence that the passport and the visa were obtained for him by a friend of the friend, using false information and documentation. The applicant stated that he did not know the person who obtained the passport and the visa for him. The Tribunal finds it implausible that someone would risk a government position and commit a serious offence for a person they did not know. This also does not explain how the applicant was able to pass through the customs at the airport as independent country information before the Tribunal suggests that the applicant may not have been able to do so freely if he was of interest to the authorities.
The Tribunal questioned the applicant about why he applied for the Business visa after coming to Australia and not for the Protection visa. The applicant stated in oral evidence and in response to Tribunal’s s 424A correspondence that he was misled by his migration agent and he did not know what to apply for. The applicant states that he believed he could obtain permanent residence by applying for the business visa. While the Tribunal cannot comment on the advice the applicant received from his migration agent, the Tribunal does not consider it plausible that the applicant would not know the difference between a business visa and a protection visa. This is particularly so because the applicant stated that his wife had arrived in Australia some time earlier and had applied for the protection visa independently. The Tribunal is of the view that the applicant did intend to apply for the Business visa and when that application was unsuccessful, he decided to apply for the protection visa. The Tribunal is of the view that the applicant’s failure to apply for the protection visa soon after coming to Australia indicates that the applicant did not have a well founded fear as a result of his wife’s claimed involved in the pro-democracy movement.
For these reasons the Tribunal does not accept that the applicant was in any way involved in any political or anti-government activity in China. The Tribunal also does not accept that the applicant was involved or perceived as being involved in the pro-democracy movement or other political activities because of his wife’s actions in 1989. There is no evidence that the applicant was involved in any other anti-government or anti-communist activities in China. The Tribunal finds that the applicant was not of interest to the authorities in the past and that he will not be of such interest, if he were to return to China now or in the foreseeable future.
The Tribunal does not accept that the applicant was detained and tortured as a result of his express or implied political opinion. This is because the Tribunal does not accept that the applicant had expressed a political opinion, or was perceived as having such an opinion or as having expressed such an opinion, as a result of his involvement in the pro-democracy movement or as a result of his wife’s involvement in the pro-democracy movement. The Tribunal does not accept that the applicant was persecuted in any manner by the Chinese authorities because of his wife’s involvement in the 1989 pro-democracy movement or as a result of any other political action or opinion held by the applicant.
The Tribunal does not accept the applicant’s evidence that the police and the household committee continued to monitor the applicant or continued to express an interest in the applicant because of his wife’s involvement in the 1989 pro-democracy movement. This is because the Tribunal found that the applicant did not come to the attention of the authorities as a result of his wife’s involvement in anti-government activities.
The applicant provided a number of documents relating to his involvement in anti-communist activities in Australia. The applicant claims that he started to be involved in these activities in about 2001. When questioned why he did not get involved in these activities after he came to Australia in 1998, the applicant stated that he was busy working and making a living. The applicant also said that he was unlawful and he did not want to go out, yet as he could not state when he became unlawful, the Tribunal rejects that explanation. The applicant also stated that he did not know about the persecution of Falun Gong, so he did not participate in the anti-Chinese government and anti-communist activities. The Tribunal can not accept that the applicant did not know about the persecution of Falun Gong from 1999 if he read the Chinese newspapers, as he initially claimed. In any event, the Tribunal is not satisfied that there is a necessary link between the persecution of Falun Gong practitioners and anti-Chinese government and anti-communist activities, so that the applicant could have participated in such activities without having any knowledge about the crackdown on Falun Gong. The Tribunal is of the view that if the applicant was so committed to the anti-government political expression, he would not have waited for three years without making any attempt to participate in these activities in Australia. The Tribunal finds that the applicant does not have a genuine commitment to anti-communist and anti-Chinese government political expression. The Tribunal finds that the applicant will not engage in anti-communist or anti-Chinese government political activities, should he return to China now or in the foreseeable future. For the reasons stated above, the Tribunal also cannot be satisfied that the applicant engaged in the anti-communist and anti-government activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal finds that such conduct falls within the ambit of s 91R(3) and the Tribunal disregards such conduct.
The applicant provided extensive evidence about his involvement with Falun Gong in Australia. In response to the Tribunal’s questions, the applicant displayed a reasonable knowledge about the principles and the teachings of Falun Gong, as well as the practice of Falun Gong. Having regard to the applicant’s evidence, the photographs and the statements from third parties, the Tribunal accepts that the applicant is a Falun Gong practitioner. The Tribunal also accepts the applicant’s evidence that he started practising in early 2006.
The Tribunal questioned the applicant about the reasons for his involvement with Falun Gong. The applicant said that he had followed his wife, who started practising for health reasons and he subsequently became attracted to its principles. The Tribunal is concerned that the applicant started practising and studying Falun Gong in the beginning of 2006, having spent eight years in Australia prior to that. The applicant said that he did not practice before because he could only enjoy freedom in Australia, yet it took him more than seven years of living in Australia before he decided to engage in the practice of Falun Gong. There is no evidence before the Tribunal that he had any interest in Falun Gong prior to 2006 or that he participated in any of the Falun Gong activities prior to that. The Tribunal does not accept that the applicant is genuinely committed to the principles and practice of Falun Gong. Because of the delay in the applicant engaging in the practice of Falun Gong and in light of the applicant’s immigration history which the Tribunal set out in its correspondence to the applicant under s 424A of the Act, the Tribunal cannot be satisfied that the applicant engaged in the practice of Falun Gong or other activities associated with Falun Gong, or that he continues to engage in Falun Gong or other activities, otherwise than for the purpose of strengthening his claims to be a refugee within the meaning of the Convention. Section 91R(3) requires the Tribunal to disregard such conduct.
Further, as the Tribunal cannot accept that the applicant is genuinely committed to Falun Gong, the Tribunal finds that the applicant will not engage in the practice of Falun Gong, should he return to China now or in the foreseeable future. The Tribunal finds that there is no real chance of the applicant being persecuted nor or in the reasonable foreseeable future for the reason of his practising Falun Gong or participating in any other Falun Gong activities.
The applicant presented the Tribunal with a letter written to his wife by her best friend, dated May 1998. The letter indicates that the police had attended the second-named applicant’s home to investigate something. The Tribunal does not consider this letter to be supportive of the applicant’s claims. The letter does not indicate why the police are visiting the applicant wife’s home, nor what investigations are being carried out. The Tribunal cannot be satisfied that the visits by the police have any connection with the claims put forward by the applicant.
In his statement, the applicant made general claims about the actions of the communist party and its mistreatment of the people of China, including during the years of the Cultural Revolution. However, as Brennan CJ stated in Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 at 232-233:
…the object and purpose of the Convention is not simply the protection of those who suffer a denial of enjoyment or their fundamental rights and freedoms; they must suffer that denial by prescribed kinds of persecution, that is persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”
The Tribunal finds that the applicant’s general dissatisfaction with the communist regime in China does not constitute a denial of fundamental rights and freedoms by prescribed kinds of persecution.
The applicant stated that his fear of persecution is related to several bases: the express or implied political opinion arising from the actions of his wife during the Tiananmen Square incident and the applicant’s activities in Australia, such as his participation in anti-Chinese government and anti-communist demonstrations and the practice of Falun Gong. The Tribunal has rejected the applicant’s claim that he was persecuted as a result of his wife’s involvement in the pro-democracy movement or that he was persecuted because of his failure to surrender the photographs. The Tribunal also found that there is no real chance of the applicant being persecuted if he returned to China now or in the foreseeable future for the reason of his express or implied political opinion arising from his wife’s participation in the pro-democracy movement and his failure to co-operate with the authorities.
The Tribunal has also considered the applicant’s claim with respect to his practice of Falun Gong and his engagement in anti-communist and anti-Chinese government activities in Australia. The Tribunal found that the applicant’s engagement in these activities falls within the ambit of s 91R(3) and, therefore, the Tribunal has disregarded the applicant’s conduct in Australia. The Tribunal found that the applicant is not a genuinely committed Falun Gong practitioner and that he does not have a genuine commitment to anti-communist and anti-Chinese government political expression.
As the applicant had not claimed that he fears persecution for any other reason, 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 express or implied political opinion 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 first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The fate of the other applicant's application depends on the outcome of the first named applicant’s application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot also be granted 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 Act”).
The application
In his application, the applicant set out two grounds as follows:
(1)The Tribunal found that it would disregard the applicant’s conduct in Australia concerning Falun Gong on application of s.91R(3) of the Migration Act. The Tribunal fell into jurisdictional error in making this finding.
(2)The Tribunal found that the applicant will not engage in Falun Gong should he return to China. The Tribunal fell into jurisdictional error in making this finding.
The applicants have not filed an amended application.
Findings of the Court as to the grounds in the application
It was submitted for the first-named applicant that his complaint focuses on his feared persecution as a result of his Falun Gong activities in Australia (Transcript 1, line 45). The Court understands this to mean that the applicant is pursuing both grounds 1 and 2 above.
It is said that the principal complaint is that evidence that he was a Falun Gong practitioner was put before the Tribunal, but the Tribunal overlooked the material, which was a failure to take into account relevant evidence in a Peko-Wallsend sense (Transcript 2, line 5).
It is submitted for the applicant: –
·That if a Tribunal’s reasons for decision prepared under s.430 of the Migration Act omit or do not refer to a matter, and if the Court considers the matter important, then it is open to the Court to conclude that the Tribunal overlooked the matter.
·Also, that if the Court considers that the Tribunal has not engaged in an active intellectual process in regard to the information, then there has been a failure to have regard to the document or the material. That material is said to be:
[At paragraph 15 of the applicant’s written submissions]
(a)On the basis of the evidence in the Court Book, until October 2006 (see CB 41-42) the applicant was unaware he would be given the opportunity of applying to the Refugee Review Tribunal. Yet the applicant commenced practising Falun Gong in early 2006 (CB 120.7) and commenced distributing The Epoch Times and Falun Gong literature in public in August 2006 (CB 67, 68). The fact that the applicant commenced these activities before he became aware he had an opportunity to apply to the Tribunal supports the fact that he is a genuine Falun Gong practitioner and hence is relevant to his claim that he is a genuine Falun Gong practitioner. However, the Tribunal overlooked this matter.
(b)The manner is which the applicant became a Falun Gong practitioner is relevant to whether he is a genuine practitioner. The applicant gave an explanation to the Tribunal at CB 112.8. If this explanation is correct, it is a factor in favour of a finding that the applicant is a genuine practitioner. The “old friend Li” (CB 112.8) to whom the applicant refers in his explanation corroborates the applicant’s account of how he came to be a Falun Gong practitioner (CB 59-60). However, the Tribunal overlooked the corroborative evidence of the old friend Li…at CB 59-60.
(c)Aspects of the some of the five corroborative statements referred to in paragraph 7 above support the applicant’s claim that he is a genuine Falun Gong practitioner. Specifically see CB 59.9 (“After a while, with their practice, their health had obviously improved a great deal”), and 85 (“I believe they will have big trouble if they are returning to China”).
Paragraph 7 (referred to in (c) above) is as follows:
In November and/or early December 2006 the applicant provided to the Tribunal statements from a number of witnesses which corroborated aspects of the applicant’s claims that he was a genuine Falun Gong practitioner, being:
(a)statement of Li Juan Fan (CB 59-60);
(b)statutory declaration of Jian Hua Wu dated 19 November 2006 (CB 64);
(c)letter from Alfred Sinn of The Epoch Times dated 21 November 2006 (CB 67);
(d)statutory declaration of Fang Qin Liu dated 22 November 2006 (CB 68-69); and
(e)statement of Gui Fang Chen dated 15 November 2006 (CB 85).
[15(d) See post para.25]
The above material will be referred to as Issues 15(a) to 15(d). As to the material in 15(a), it is said that the applicant had no idea that he would have an opportunity to apply to the Refugee Review Tribunal until he received the letter from the Department dated 6 October 2006 (CB 41). The Court notes that at CB 29 the applicant nominated an agent to act on his behalf, being Bestway Global Services located at 320/413-415 Sussex Street, Sydney. The date of 22 January 1999 appears at the bottom of that page, which the Court takes to indicate that the agent had been appointed by that date. The letter dated 3 March 1999 was sent to both the applicant and to his agent (CB 30, 31). Notification to the agent is taken to be notification to the applicant: s.430(C)(2). The decision in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 has no impact on this issue as the issue here is not whether the time limits in s.477 apply.
A letter was sent to the applicant by the Department at his address set out in his application for a visa (CB 30). That letter was sent on 3 March 1999, and notified the applicant that he had a right to apply to the Refugee Review Tribunal for review of the refusal to grant him a visa. Nothing was put to the Court to show that the address used was not the correct address for the applicant. The Tribunal records (at CB 103.4) that
An officer of the Department subsequently found that the applicants were not correctly notified of the decision and the applicants were re-notified of the decision to refuse to grant them a visa by letter dated 6 October 2006.
That letter was sent to the applicant at 10/21 Shepherd Street, Ashfield NSW 2131. Obviously, the applicant had changed his address at some time: evidence was not put before the Court as to when this change occurred. Evidence was not given by the applicant that he did not receive the letter dated 3 March 1999. All that is before the Court, is a submission that the applicant was unaware of his right to apply to the Tribunal until he received the letter dated 6 October 2006, and that the Department found that the applicants were not correctly notified by the first letter. However, a copy of the letter was sent to his agent.
The facts have not been established. It is for an applicant to establish their case: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. The relevant facts of the individual case have to be supplied by the applicants themselves, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45.
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]. It would have been a simple matter for the applicants to provide an affidavit in support of their assertions, but they failed to do so. The Court is not satisfied that the applicants did not know of their right to seek a review by the Refugee Review Tribunal until they received the letters dated 6 October 2006; they could have had obtained knowledge from another source. It is not the function of the Court when conducting a judicial review to decide such factual issues: NAHI (post). This Court cannot, and will not, conclude that a factual matter that has not been established was overlooked by the Tribunal.
The applicant husband then submits that early in 2006 he commenced the practice of Falun Gong even though he had no knowledge, or was not aware that he had an opportunity to apply to the Refugee Review Tribunal. Again, this Court cannot conclude that a factual matter that has not been established was overlooked by the Tribunal. The ground relating to issue 15(a) is rejected.
As to the material in 15(b), it is asserted that the method by which the applicant became a Falun Gong practitioner is relevant to whether he is a genuine Falun Gong practitioner. The Tribunal set out its findings of fact as to whether the applicant is a genuine Falun Gong practitioner (at CB 120.10) as follows:
The Tribunal does not accept that the applicant is genuinely committed to the principles and practice of Falun Gong. Because of the delay in the applicant engaging in the practice of Falun Gong and in light of the applicant’s immigration history which the Tribunal set out in its correspondence to the applicant under s.424A of the Act, the Tribunal cannot be satisfied that the applicant engaged in the practice of Falun Gong or other activities associated with Falun Gong, or that he continues to engage in Falun Gong or other activities, otherwise than for the purpose of strengthening his claims to be a refugee within the meaning of the Convention. Section 91R(3) requires the Tribunal to disregard such conduct.
The Court refers to the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] as follows:
In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
In making the findings of fact, the Tribunal did not act “on evidence which was inconsistent with facts incontrovertibly established by the evidence”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ. The Court will not interfere with the findings of fact by the Tribunal. It is clear that the Tribunal did not overlook issue 15(b). The ground is rejected.
As to 15(c), the applicant submits that the Tribunal did not refer to statements in support of the applicant’s claim that he is a genuine Falun Gong practitioner. That assertion is incorrect. At CB 120.6 the Tribunal stated (highlighting added):
The applicant provided extensive evidence about his involvement with Falun Gong in Australia. In response to the Tribunal’s questions, the applicant displayed a reasonable knowledge about the principles and the teachings of Falun Gong, as well as the practice of Falun Gong. Having regard to the applicant’s evidence, the photographs and the statements from third parties, the Tribunal accepts that the applicant is a Falun Gong practitioner. The Tribunal also accepts the applicant’s evidence that he started practising in early 2006.
The Tribunal questioned the applicant about the reasons for his involvement with Falun Gong. The applicant said that he had followed his wife, who started practising for health reasons and he subsequently became attracted to its principles. The Tribunal is concerned that the applicant started practising and studying Falun Gong in the beginning of 2006, having spent eight years in Australia prior to that. The applicant said that he did not practice before because he could only enjoy freedom in Australia, yet it took him more than seven years of living in Australia before he decided to engage in the practice of Falun Gong. There is no evidence before the Tribunal that he had any interest in Falun Gong prior to 2006 or that he participated in any of the Falun Gong activities prior to that. The Tribunal does not accept that the applicant is genuinely committed to the principles and practice of Falun Gong.
The Tribunal therefore had regard to the statement from third parties. The ground relating to Issue 15(c) is rejected.
The applicant submits that it is not sufficient for a decision maker to merely refer to a document, and that it must engage in an active intellectual process in considering them. The reference to the statements was part of an assessment of the evidence about the applicant’s involvement with Falun Gong. The Tribunal stated that it had regard to the statements.
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal's decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41]. Also, as stated in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The Tribunal accepted the statements as part of the evidence that the applicant started practising Falun Gong in early 2006, however, it went on to conclude:
The Tribunal does not accept that the applicant is genuinely committed to the principles and practices of Falun Gong. Because of the delay in the applicant engaging in the practice of Falun Gong and in light of the applicant’s immigration history which the Tribunal set out in its correspondence to the applicant under s.424A of the Act, the Tribunal cannot be satisfied that the applicant engaged in the practice of Falun Gong or other activities associated with Falun Gong, or that he continues to engage in Falun Gong or other activities, otherwise than for the purpose of strengthening his claims to be a refugee within the meaning of the Convention. Section 91R(3) requires the Tribunal to disregard such conduct.
The Tribunal therefore engaged in an active intellectual process in deciding what the statements proved. The findings of fact were properly open to the Tribunal on the material before it and are not open to review. The ground relating to issue 15(c) is rejected.
The applicant adds 15(d) to the material to which it is said the Tribunal had no regard. It is alleged that that the Tribunal had no regard to the evidence of the applicant’s wife which is set out at CB 115 as follows.
The Tribunal took evidence from the applicant wife. She said that after she came to Australia, she led a hard life, she missed her child. Her mind was almost broken. Her residences have been moving all the time. She could not remember things.
The Tribunal asked the applicant if she knew about the treatment her husband received in China after she left China. The applicant said that after he came to Australia, she saw that there is an injury on his leg. The applicant said that her husband worried that she may be worried about him, so he did not tell her. The Tribunal asked the applicant wife if she knew anything about the claimed persecution of her husband in China. The applicant said that after her husband arrived in Australia, he did not tell her the details.
The Tribunal asked the applicant to talk about her husband’s involvement with Falun Gong. She said that in 2004 she suffered an acute kidney disease. In March 2005 she and her husband went to Campsie to buy groceries and met a co-practitioner, whom they knew from before. This person suggested that she should practise Falun Gong. The applicant said that her husband started practising at the same time. They go to Parramatta and Campsie every week. They also distribute materials in the Royal Botanical gardens or the Courts building. The Tribunal noted that the applicants had provided a statement to the Tribunal from Epoch Times stating that they were distributing the newspaper since August 2006. The Tribunal asked the applicant why they were not doing this before. The applicant said that before she only half-believed and it is only through practise that she believed.
The Tribunal put the same question to the applicant husband. The applicant husband said that before they did not distribute the newspapers. Once they practised, they realised how Falun Gong was connected to the persecution in China by the Communist party. The Master said that they needed to do three things: to study Fa, to reveal the truth and to cultivate one’s consciousness. The Tribunal pointed out that applicant would have to do these three things from the time he started practising Falun Gong in March. The applicant said that they did not wait until August, but when the studied Fa later on, they sometimes needed time to finish the chapter.
The Tribunal asked the applicant wife why her husband was practising Falun Gong. She said that both she and her husband treat the Chinese government with hatred. The communist party persecutes Falun Gong practitioners and take organs from live people. The Tribunal asked the applicant wife why her husband was practising and not why they hated the Party. The applicant said that because he saw that she was sick before and after she practised, her health improved. For that reason he followed her and believed.
The applicant stated that she was nervous and could not think of anything else to say. The Tribunal noted that the applicant had the opportunity to provide additional written evidence to the Tribunal before the decision was handed down.
The applicant has not shown that the Tribunal did not have regard to the evidence of the applicant’s wife. That evidence was set out by the Tribunal in detail CB 115. The applicant cannot complain about the weight given to the evidence as that is a matter for the Tribunal, as is whether the Tribunal accepted or rejected the evidence: Lee v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [27]. This claim is rejected.
The applicant asserts that the Tribunal is to have regard to information or evidence which the applicant gave the Tribunal (Transcript 9, line 30). The Court accepts that submission, subject to the right of the Tribunal to accept or reject it and give it such weight as it thinks appropriate in the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs (supra).
The applicant then relied on two decisions to support an allegation that the Tribunal failed to have regard to relevant materials. The applicant relied on the decision in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212] to submit that the Tribunal must have regard to relevant material and deal with it in its written reasons. That is what the Tribunal has done in this case. The Tribunal made more than fleeting reference, and considered the material as part of the evidence on the issues.
The applicant relies on the decision in Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212, which it is said “goes no further than NAJT” on the matter. The applicant refers to paragraph 23 of Kalala as follows:
…if the Tribunal Member had really examined whether there was a real and substantial risk that the events recited in the article had occurred, one would have expected to see reference to such examination [in the reasons for decision].
The above passage refers to an examination about a particular issue. The Tribunal in the present case examined all relevant issues, including whether the applicant practised Falun Gong to support his application.
The applicant refers to the decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 as authority for the proposition that
Section 430 entitles the Court to infer that any matter not mentioned in the s.430 statement was not considered by the Tribunal to be material (Transcript 12, line 15).
The Court finds that all the matters complained about by the applicant were mentioned and dealt with by the Tribunal. The Tribunal had regard to the material in paragraphs 15(a) to (d) above. If it failed to give it the weight that the applicant wishes; that shows no error. Weight is a matter for the Tribunal. It is open to the Tribunal to choose which evidence it accepts or rejects.
Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249.
“Wednesbury unreasonableness” has not been established.
The second complaint by the applicant is that s.91R(3) applies only if the Tribunal finds that the applicant’s conduct had the single purpose of strengthening their claims to be refugees (Transcript 12, line 30). The Tribunal found for the reasons it stated, that it
cannot be satisfied that the applicant engaged in the practice of Falun Gong… otherwise than for the purpose of strengthening his claims to be a refugee within the meaning of the Convention.
The construction of s.91R(3) proposed by the applicant therefore does not arise for decision.
It was then submitted for the applicant that if the Court agrees with the applicant’s construction of s.91R(3), the Tribunal did not apply that construction and therefore fell into jurisdictional error. As the question of the construction of s.91R(3) does not arise for decision, this submission is of no relevance.
Submissions for the first respondent
The first respondent submits as follows:
·The issue of construction of s.91R does not occur because the Tribunal was not satisfied that the applicant engaged in the practice of Falun Gong otherwise than for the purpose of strengthening his claims (Transcript 14, line 37).
That submission is accepted.
·Ground two seeks to challenge a finding of fact by the Tribunal that the applicant will not engage in Falun Gong should he return to China. Section 430 requires the Tribunal to prepare a written statement of the reasons for decision, setting out its findings on material facts and refers to the evidence on which those findings were made (Transcript 16, line 5). It is said that the decision in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 states that s.430(d) “does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based”, and that
“It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.”
The Court finds support for the first proposition in Addo supra at [28]; the second proposition above is stated in Addo at [31]). The Court accepts the submissions above.
·The fact that there is no detailed analysis of the four matters raised by the applicant as being relevant does not mean that it did not think about them (Transcript 16-17). The Court accepts that submission and refers to its findings about issues 15(a) to 15(d).
·As to the first item [15(a) para.14 above], there is no evidence before the Court that the applicant did not know of his right to apply to the Tribunal for a review before he received the letter of 6 October 2006. The earlier letter of 3 March 1999 (CB 30) may or may not have complied with s.60 notification obligations, but it stated that the applicant could apply to the Tribunal for a review (Transcript 17).
·As to the other items (15(b), (c) and (d)), they require the Court to overlook clear statements made by the Tribunal relating to them at CB 107, 115 and 120. These three items are an attack of the merits that is not available (Transcript 18-19).
The Court accepts the thrust of the submissions for the first respondent set out above.
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 is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 20 August 2007
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