SZKEV v Minister for Immigration
[2007] FMCA 1032
•2 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1032 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether RRT complied with statutory requirements including s.91R and s.424A – whether RRT prejudged – whether Tribunal affected by bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(b); 474; pt.8 div.2 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZKEV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG472 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 July 2007 |
| Date of last submission: | 2 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2007 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG472 of 2007
| SZKEV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 December 2006 and handed down on 9 January 2007.
The Applicant was born on 10 July 1981 and claims to be from the People’s Republic of China (“the PRC”) (“the Applicant”).
On 25 June 2006 the Applicant arrived in Australia, having legally departed the PRC on a passport issued in his own name and a visitor visa issued on 21 March 2006.
On 26 July 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 Act.
In his protection visa application, the Applicant claimed that he feared persecution by the PRC government in relation to his activities as an organiser of Falun Gong gatherings and activities and as an assistant to a “senior member of Falun Gong”. He claimed he helped distribute promotional leaflets for Falun Gong, arrange underground meetings and transport members to underground meetings. He claimed he and fellow Falun Gong members were detained in March 2006 and were kept at the police station for ‘education classes’. The Applicant claimed he became weak and was denied adequate food and made to sleep on the floor. The Applicant claimed his family secured his release after four days through bribery and subsequently organised his visa to Australia. The Applicant claimed that since his arrival in Australia his family have warned him of police interest in his whereabouts.
On 8 September 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”).
On 25 September 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application.
On 14 December 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 13 February 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 4 October 2006 the Tribunal invited the Applicant to come to a hearing on 31 October 2006.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant gave oral evidence before the Tribunal on 31 October 2006 in which the Applicant expanded upon his written claims. He claimed he was a public bus driver and that he practiced Falun Gong sporadically and distributed leaflets on the buses he drove, as well as using public and rented busses to transport Falun Gong practitioners to gatherings. The Tribunal discussed with the Applicant how he came to learn about and become involved in Falun Gong and the Applicant’s involvement with the “senior member of Falun Gong”, including the Applicant’s claim that he started to distribute Falun Gong leaflets two months after meeting the senior member and before he had practiced Falun Gong himself. The Tribunal noted the Applicant’s claims this senior member was “involved in Falun Gong activities in more than one city” and that the Applicant assisted him in Qingdao or Dailan, which were separated by five or six hours of travel via ferry. The Tribunal questioned the Applicant on his knowledge of Falun Gong and his detention in March 2006 by PRC authorities. The Tribunal also discussed with the Applicant his travel to Australia, his movements and activities prior to leaving the PRC and his Falun Gong involvement since arriving in Australia.
The Applicant provided his passport to the Tribunal at the hearing.
The Tribunal found the Applicant not to be a credible witness.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“7. The Tribunal found that the applicant was not a credible witness and that his account of his involvement in Falun Gong in China was not truthful. Specifically, the Tribunal made the following findings:
- while it accepted that the applicant was a public bus driver, the Tribunal did not consider credible that the applicant would distribute pamphlets about a movement he knew to be illegal on a public bus before being a practitioner of Falun Gong. It also did not consider credible that a key member of Falun Gong would have asked a non-member to distribute pamphlets for the movement;
- the Tribunal did not accept the applicant’s claims (sic) that he assisted transporting members of Falun Gong to activities beyond his normal duties as a bus driver on public bus routes. Nor did the Tribunal accept as credible that Falun Gong practitioners would have hired buses to travel between cities given the Falun Gong movement’s banned status;
- the Tribunal did not accept that the applicant was ever a Falun Gong practitioner in China given his “extremely limited knowledge” of Falun Gong. It also found the applicant’s evidence regarding his practice of Falun Gong inconsistent;
- the Tribunal considered that someone who had been a Falun Gong practitioner in China would practice in Australia. The applicant’s evidence was that he had not practiced Falun Gong in Australia;
- the Tribunal was therefore not satisfied that the applicant had come to the attention of Chinese authorities, been detained, or suffered persecution in the past or that the applicant would practice Falun Gong If (sic) he returned to China. The Tribunal was accordingly not satisfied that there was a real chance that the applicant would suffer harm if he returned to China and that he had a well-founded fear of persecution for a Convention reason.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The Applicant confirmed that he relies on the grounds contained in his amended application filed on 19 April 2007. The Applicant also confirmed that he had read the written submissions filed on behalf of the First Respondent on 25 June 2007.
The grounds of the amended application are expressed to be as follows:
“1. The Tribunal had bias against me and did not consider my application in accordance with s.91R of the Migration Act 1958. The Tribunal failed to consider my claims.
2. The Tribunal failed to consider my application according to s.424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. (please refer to the following two pages for details of my application).”
Each of the grounds was interpreted for the assistance of the Applicant and he was invited to make submissions in support of the grounds and in support of his application generally.
Despite the lack of particulars being pointed out to the Applicant by this Court, the Applicant had nothing to say in support of any of the grounds or in support of his application generally.
Ground 1 – “The Tribunal had bias against me and did not consider my application in accordance with s.91R of the Migration Act 1958. The Tribunal failed to consider my claims”
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
The Applicant was directed on 1 March 2007 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 19 April 2007. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing. No evidence was filed by the Applicant.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. In particular, in accordance with the submission of the First Respondent, “There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115])”.
Accordingly, the allegation of bias or apprehended bias is rejected.
Ground 1 also alleges that the Tribunal failed to consider the Applicant’s claims.
However, a fair reading of the Tribunal’s decision makes it clear that the Tribunal identified with specificity the claims made by the Applicant in his protection visa application and the oral evidence given by the Applicant to the Tribunal at the hearing in which he expanded on those claims. The Tribunal also recorded exchanges it had with the Applicant about his claims and put to the Applicant matters in his evidence about which it had concern. In particular, the Tribunal put matters to the Applicant that did not seem to it to be credible and noted the Applicant’s responses.
Ultimately, the Tribunal rejected the claims made by the Applicant. In particular, the Tribunal found that the Applicant’s evidence about distributing pamphlets about Falun Gong was fabricated for the purposes of boosting his claims.
The Tribunal also found the Applicant’s evidence of having driven Falun Gong practitioners to meetings was done in the course of his duties as a driver of public transport facilities in the city and not because of any involvement or special assistance provided by the Applicant as a result of being a follower of Falun Gong.
The Tribunal found that the Applicant’s knowledge of Falun Gong was limited. The Tribunal did not accept that the Applicant would know so little about Falun Gong if he attended weekly lectures from 2001 and practised in a group after that time. The Tribunal found the Applicant’s oral evidence at the hearing to be inconsistent in relation to his practice of Falun Gong. The Tribunal found that the Applicant’s limited knowledge of Falun Gong was acquired for the purpose of boosting his claims.
Further, the Tribunal was not satisfied that the Applicant would not practise Falun Gong in Australia if he had been a practitioner of Falun Gong in China in circumstances where he was seeking protection in Australia because of his allegation of having been persecuted as a follower of Falun Gong in China.
The Tribunal rejected the Applicant’s claims of arrest and detention in March 2006 as a result of authorities finding Falun Gong pamphlets in his bus or that he was detained in China by reason of being a Falun Gong practitioner or being imputed as a supporter of Falun Gong. Based on those findings, it followed that the Tribunal did not accept the Applicant’s claims of mistreatment in detention or release from detention by bribery.
The Tribunal did not accept that the Applicant had suffered past persecution by the authorities in China for any Convention related reason.
The Tribunal was not satisfied that the Applicant would practice Falun Gong if he returned to China or would provide assistance to the Falun Gong movement if he were to return to China.
Based on its findings of fact, the Tribunal concluded that the Applicant did not have a well-founded fear of persecution for a Convention related reason if he were to return to China and that there was not a real chance that the Applicant would suffer serious harm amounting to persecution for a Convention related reason if he were to return to China.
The findings referred to above in these Reasons are findings of fact that were open to the Tribunal on the evidence before it and for which it provided reasons. Similarly, the conclusions reached by the Tribunal based on its findings were open to it and were made in accordance with the relevant legal principles. Otherwise, the Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review.
In the circumstances, it is clear that the Tribunal considered the Applicant’s claims, approached the making of its decision with a mind open to persuasion and considered the Applicant’s application in accordance with s.91R of the Act.
Accordingly, ground 1 is rejected.
Ground 2 - “The Tribunal failed to consider my application according to s.424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. (please refer to the following two pages for details of my application).”
The Applicant alleges that the Tribunal failed to comply with its obligations pursuant to s.424A of the Act. The particulars that are referred to in ground 2 are formulaic and in terms regularly seen by this Court. They contain no meaningful particularisation of the information that is alleged to have enlivened the obligations of s.424A(1) of the Act. To the extent that the particulars commenced by asserting that the Tribunal failed to carry out its statutory duty, this issue is considered in these Reasons above under ground 1 and is rejected in accordance with the conclusion made at paragraph 41 above in these Reasons.
In any event, the only information upon which the Tribunal relied in its decision was the oral evidence given by the Applicant at the hearing which it simply did not believe.
As stated above, the findings made by the Tribunal, including the adverse credibility findings, were open to the Tribunal on the evidence before it and for which it provided reasons.
In the circumstances, the information which the Tribunal considered was the reason for it affirming the decision under review was information given to it by the Applicant for the purposes of his review application and is therefore excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
Conclusion
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 is dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 2 July 2007
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