SZKCK v Minister for Immigration & Anor
[2007] FMCA 820
•30 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 820 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal – Tribunal not required to refer in its decision to evidence it does not rely upon in reaching its decision. |
| Migration Act 1958, ss.91X, 424A, 425, 425A, 426, 426A |
| Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Antipova v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 480 |
| Applicant: | SZKCK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 271 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 May 2007 |
| Date of Last Submission: | 30 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $2,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 271 of 2007
| SZKCK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 26 January 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 13 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 8 September 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… he is from Hebei Province in China and [says] that as a Falungong (FG) believer he is a victim of religious persecution by the Chinese Government. (Court Book (“CB”) page 73).
The applicant claims to fear persecution in China because of his membership of Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-5 of the Tribunal’s decision (CB 73-74). Relevantly, they are:
a)the applicant commenced reading the works of Master Li in 1998 and “began to attend the exercise and gathering of Falungong believers frequently and do my best to advise my relatives and friends to study and practise Falungong”. The applicant claims that as a Falun Gong believer he was arrested and detained twice by the local police and that each time he was “scolded and tortured” until his family “paid several thousands RMB to the police station to bail me”;
b)the applicant initially believed that the local authorities, rather than the central Chinese government, were the main instrument of his persecution, so, in October 2002 he persuaded other local Falun Gong believers to accompany him to Beijing. There they handed out “petition material” in Tiananmen Square when they were arrested and the applicant was sent back to Shijiazhuang City and detained; and
c)after two weeks’ interrogation and torture, the applicant was sentenced to one year’s labour re-education. Following release from detention, the applicant was unemployed and continued to be monitored by the police. The applicant claims that he has not given up his Falun Gong beliefs and practices which he conducts privately.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although the applicant had some knowledge of Falun Gong practice, beyond referring to the beneficial effects of Falun Gong practice on his physical well-being and his relationship with his wife, the applicant was unable or unwilling at the hearing to articulate other (non-physical) beliefs and benefits arising from his Falun Gong practice;
b)the Tribunal did not accept that the applicant had made contact with any Falun Gong practitioners in Australia, nor that he practised at a park in Campsie as he claimed. The Tribunal considered that this cast doubt on the applicant’s claim to be a genuine Falun Gong practitioner; and
c)the Tribunal considered that the fact that the applicant was issued a genuine passport in his own name constituted additional evidence that he was not a person of interest to the Chinese authorities and cast doubt on his claims of detention and persecution for his Falun Gong beliefs.
The Tribunal summarised its findings in the following terms:
Based on the evidence [in] the case files and provided at the hearing, the Tribunal does not accept that the applicant is a genuine FG practitioner. The Tribunal also does not accept on the evidence that the applicant was persecuted for his FG beliefs in China. Since the Tribunal does not accept that the applicant is a genuine FG practitioner, it does not accept that there is a real chance that he will practice [sic] FG if he returns to China, nor that there is a real chance that he will be persecuted for reasons of his claimed FG beliefs and practices if he returns to China now or in the reasonably foreseeable future. (CB 76).
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal denied the applicant natural justice by not considering the context in which the applicant will face persecution and serious harm as a Falun Gong practitioner in China;
b)the Tribunal did not consider all the evidence by not considering evidence favourable to the applicant’s claim;
c)the Tribunal was in breach of ss.425(2)(b), 424A(1) and 426A(2) of the Act; and
d)the applicant was denied the opportunity to give oral evidence at the Tribunal hearing.
Dealing with each of these grounds in turn:
The Tribunal denied the applicant natural justice by not considering the context in which the applicant will face persecution and serious harm as a Falun Gong practitioner in China
As to the first ground, the context of the applicant's claims is found at pages 4-7 of the Tribunal's decision record, where the Tribunal noted the background to the applicant's claim to be a follower of Falun Gong, his claims of persecution in China by way of arrest and torture, his imprisonment and detention in a labour re-education camp following the handing‑out of leaflets in Tiananmen Square, and the monitoring of the applicant by the police following his release from the re-education camp. In addition to the allegations made by the applicant in relation to the situation in China, the Tribunal considered independent country information on the persecution of Falun Gong practitioners in China. In that consideration, the Tribunal turned its mind to the history of government suppression of Falun Gong and the steps taken by the Chinese government to effect its policies in relation to Falun Gong.
A consideration of the Tribunal's reasons indicates that it considered the context of the applicant's claims, not only in the way that he put them but also in the way the context appeared in the independent country information. The Tribunal considered the applicant's claims in this context. The Tribunal did not fail to take the relevant considerations into account.
It also has to be kept in mind that the Tribunal did not accept that the applicant was a Falun Gong practitioner and, because it did not accept that he was a Falun Gong practitioner, it was not satisfied that he had a well‑founded fear of persecution for a Convention reason, should he return to China.
For these reasons, no jurisdictional error has been demonstrated in respect of the first asserted ground of review.
The Tribunal did not consider all the evidence by not considering evidence favourable to the applicant’s claim
As to the second ground of review, if the Tribunal ignored relevant material in a way that affected the exercise of its power, then it committed an error of law, as discussed in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. In these proceedings, the applicant has failed to demonstrate what the Tribunal may have not considered in the course of its deliberations. When asked to expand on this ground, the applicant said that the Tribunal believed the evidence which he presented was not true. However, the weighing and consideration of the evidence, including the credibility of the evidence, is a matter for the Tribunal, not for this Court.
The ground, as pleaded, turns on whether the Tribunal failed to consider all the evidence, rather than that it chose not to accept or rely on some of the evidence before it. In this regard, it should be noted that the Tribunal considered the contents of the applicant's statement which accompanied his protection visa application form and paraphrased its contents at page 4 of its decision record.
The evidence which the applicant is recorded as having given at the Tribunal hearing was a repetition of the claims of arrest, detention and persecution which were set out in that statement. The Tribunal's decision also records that the Tribunal asked some questions of the applicant and that the applicant gave some answers. However, there is no evidence before the Court, such as by way of a transcript, which would suggest that the applicant gave to the Tribunal any material which was not referred to by it under the heading "Claims and Evidence" in its decision record. Consequently, the Tribunal considered the evidence which was before it and, to this extent, this ground is not made out.
If, by this ground, the applicant is asserting that the Tribunal did not refer to all the evidence before it when articulating its reasons then that does not indicate error. The Full Court of the Federal Court made clear, in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by the applicant in its written reasons. Consequently, were there to have been some evidence before the Tribunal which it chose not to rely upon, it was under no obligation to refer to that evidence as the basis of its decision, or when discussing the basis of its decision, and any failure to do so does not constitute error.
The Tribunal was in breach of ss.425(2)(b), 424A(1) and 426A(2) of the Act
As to the third ground of review, the applicant asserts that the Tribunal was in breach of s.425(2)(b) of the Act, which provides that the Tribunal need not invite the applicant to a Tribunal hearing, if the applicant consents to the Tribunal deciding the review without the applicant appearing before it.
Clearly, this subsection has no relevance in the circumstances of this case, as the applicant did appear before the Tribunal. It appears to be a mistaken reference to s.425(1), which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, if certain conditions exist, which are set out in sub-s.(2). Accepting that this is so, the real issue is whether the applicant has been given a real and meaningful hearing and has been able to give evidence and put arguments on the issues arising in relation to the decision under review.
The Minister is correct in his submissions where he says that the Tribunal put to the applicant the relevant issues, namely, the applicant's lack of contact with Falun Gong practitioners in Australia, his lack of response about what Falun Gong meant to him and that he had been able to leave China on a valid passport in his own name. It is also clear that the applicant was given a hearing which met the requirements of s.425. Consequently, this element of this asserted ground of review is not made out.
The applicant alleges that there was a breach by the Tribunal of its obligations under s.424A(1), which requires, amongst other things, that the Tribunal give the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.
Section 424A(3)(b) provides that there are no s.424A(1) obligations in respect of information which the applicant gave to the Tribunal for the purposes of the application. The information upon which the Tribunal relied when reaching its decision was information falling within s.424A(3)(b). This is made clear where the Tribunal says, at page 4 of its decision:
At the hearing, the applicant repeated the claims of arrest, detention and persecution by the Chinese authorities set out in his written statement. The Tribunal noted that the applicant has a genuine passport in his own name (which he had brought to the hearing and which was photocopied by the Tribunal and placed on file). (CB 73).
The Tribunal also asked the applicant questions and he provided answers and this information also falls within that exception. To the extent that the Tribunal relied on independent country information, such information falls within the exception contained in s.424A(3)(a) and the Tribunal had no s.424A(1) obligations in respect of it. Consequently, this element of this part of this asserted ground of review is not made out.
As pleaded, the applicant alleges a breach of s.426A(2), which provides that the Tribunal may reschedule a Tribunal hearing if the applicant fails to appear following a s.425 invitation. The way this alleged breach was expressed in the applicant's application suggested a misunderstanding on the part of the applicant as to which section of the Act he wished to rely upon. At the hearing, the applicant clarified the issue and said that he had intended to assert a breach of s.426 of the Act. Section 426 provides that when inviting the applicant to appear before the Tribunal, the Tribunal must notify the applicant that he or she may ask the Tribunal to obtain oral evidence from other people.
The s.425A notice of invitation to appear pursuant to s.425, which is reproduced at CB 57 and 58, contains a passage advising the applicant that he could ask the Tribunal to get oral evidence from another person. In doing so, the notice referred to the “Response to Hearing Invitation” form, which, in item 2(c), contains the following question:
Do you want the Tribunal to take oral evidence from any witnesses?
The form relevant to the applicant's application is reproduced at CB 59 and demonstrates that the applicant ticked the "No" box in response to that question. Consequently, the applicant was given an opportunity to indicate that he wished third parties to give evidence to the Tribunal but the evidence also indicates that he declined that opportunity.
Therefore, this element of this part of this asserted ground of review is not made out.
The applicant was denied the opportunity to give oral evidence at the Tribunal hearing
The final asserted ground of review is that the applicant was denied an opportunity to give oral evidence at the Tribunal hearing. Clearly, this is not correct, as pages 4 and 5 of the Tribunal's decision demonstrate. Were the applicant to have been asserting that he was prevented from giving evidence, such as was seen in the case of Antipova v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 480, then it was incumbent upon him to prove it. There is no evidence of this sort, such as by way of transcript, which is before the Court and, when invited at the hearing before this Court to expand on this asserted ground of review, the applicant said that he had nothing to argue or to put before the Court.
Consequently, this ground is not made out and no jurisdictional error is demonstrated in respect of it.
Conclusion
For these reasons, no jurisdictional error on the part of the Tribunal has been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 20 June 2007
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