SZKEY v Minister for Immigration
[2007] FMCA 1026
•15 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1026 |
| MIGRATION – Bias – allegation must be clearly made and distinctly proven – conclusions on evidence – subjective reasoning or conclusions of the Tribunal – not “information” covered by s.424A. |
| Migration Act1958 (Cth), ss.91R, 424A, 474 |
| Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 34 ALD 347 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Multicutlural Affairs v Al Shamry (2001) 110 FCR 27 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Abalos v Australian Postal Commission (1990) 171 CLR 167 |
| Applicant: | SZKEY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 474 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 15 June 2007 |
| Date of last submission: | 15 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr S. Free |
| Solicitors for the Respondents: | Ms S. Kantaria of Clayton Utz |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 474 of 2007
| SZKEY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 13 February 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”) signed on 13 December 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 26 April 2007. The applicant has not filed written submissions and made no submissions in support of his application.
The applicant was born on 6 April 1961 and claims to be from the People’s Republic of China.
The applicant is married with one daughter (CB 4). The applicant’s wife and daughter remain in China.
The applicant arrived in Australia on 22 June 2006 on a visitor’s visa issued in Shanghai.
On 5 July 2006 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. In this application the applicant claimed that he feared persecution in China because of his involvement with the Falun Gong movement. The applicant claimed that he became a member of Falun Gong in 1998, before the Government began their crack down on Falun Gong practitioners in 1999. The applicant claimed that he travelled from his home in Henan to Beijing for the telling of “Truth” about Falun Gong. When police saw the gathering they used force to separate the protesters and sent them back to Henan the next day. The applicant claimed that he was forced to write a letter confessing his involvement in the gathering in Beijing and also his regret. The applicant claimed that early in 2006 the police came to his home because they suspected him of organising illegal Falun Gong meetings at his home. The applicant claimed he was taken to the police station for an inquiry, and that after brain washing and education he was released. The applicant came to Australia where he discovered that Falun Gong members can have freedom of belief and practice freely. The applicant decided to stay in Australia to avoid further persecution by the Chinese government (CB 19).
This application was refused by a delegate of the first respondent on 4 October 2006 (CB 59).
On 8 November 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 68). The applicant attended a hearing before the Tribunal on 11 December 2006 to give evidence and present oral arguments (CB 101).
By decision signed on 13 December 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicants claims, the Tribunal found (CB 103-5) (highlighting added):
The Tribunal accepts, on the basis of his passport, that the applicant has PRC nationality, and assesses his claims against that country.
Essentially, it is the applicant’s claim that he fears persecution because of his adherence to Falun Gong. He claims to have been prevented from participating in Falun Gong protest activities in 1999; to have been subject to harassment and intimidation in the following years; and to have been detained in January 2006, followed by further harassment. From 1999 on, he has been unable to practice Falun Gong other than in private and/or clandestinely, in order to avoid persecutory action. If he returns to China, he will be unable to practice or learn more about Falun Gong, because of the risk of persecution.
When determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility. When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. That said, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal found the applicant to have scant knowledge of Falun Gong. He has learned a few basic facts about the movement – the approximate date of the government crackdown on the movement, the location of the protests that triggered it and the name of the movement’s founder. He did not know critical facts such as the name of the basic text or the number of exercises, and applied key concepts such as the precept ‘truth, compassion and forebearance’ and the name of the key book Zhuan Falun with little or no apparent understanding of their actual significance. The Tribunal does not accept that a person who has been involved in the movement since 1998, and has promoted the practice (such as hosting practice sessions for groups of more than 10), would know so little. In the Tribunal’s opinion, his level of knowledge is not consistent with that of a genuine practitioner.
The applicant’s claims regarding his practice in China and consequent experiences at the hands of authorities – detention, forced renunciation and monitoring, and the consequent need to modify his conduct to avoid more serious harm – reflect some of the reported forms of harm inflicted on genuine Falun Gong practitioners. However, the applicant presented them in such vague terms that the Tribunal does not accept them to be based on his own personal past experiences.
The Tribunal’s concerns are reinforced by the applicant’s account of his experiences in Australia. In contrast with his claimed level of involvement in China, where the practice entails considerable risk, the applicant has according to his evidence at hearing, given Falun Gong seemingly low priority in Australia. He has not acquired the text, and the Tribunal finds his comment that he does not understand it or that he has to rely on others to guide him to be an unsatisfactory explanation as to why he has not made some effort to familiarise himself with the text. The applicant named a few claimed fellow practitioners in Australia, but provided no details of these people and seems to have expended little thought or effort on how they might assist him practically, including in his current application. The Tribunal is not persuaded by the applicant’s hesitant references to practice sites and times in Australia that this is based on any direct involvement.
At hearing, the applicant referred to the transferral of his household registration from Henan to Shijiazhuang in 2003, suggesting that this was a response to (and thus evidence of) the threats arising from his Falun Gong adherence. Although the Tribunal found the applicant’s account at hearing of his residency in Henan and Shijiazhuang to be piecemeal and complex, what emerged was that he has long-term family and business interests in both places. The Tribunal accepts that the applicant transferred his household registration to Shijiazhuang in 2003, as claimed. However, the applicant’s suggestion that this may have been linked with his Falun Gong interests is not supported by other material – for instance, he said that from 1999 to 2006, the neighbourhood committee called him in regularly, but he did not allude to any developments in or around 2003 that might have led him to have to change his household registration. On the material before it, the Tribunal does not accept that the applicant’s change of household registration in 2003 was prompted by any Falun Gong reasons, but was unconnected to the applicant’s refugee claims.
In sum, the Tribunal finds the applicant’s knowledge of Falun Gong, his account of his attachment to the movement, his description of his practice and experiences in China, and his contacts and practice in Australia to be inconsistent with those of a genuine Falun Gong practitioner. The Tribunal does not accept that the applicant is a Falun Gong practitioner, or has any association whatsoever with the movement; or that he will he be perceived as such by anyone. It finds that he has fabricated this claim to establish a basis for refugee status.
It follows that the Tribunal rejects the applicant’s account of his experiences in China and his claims of past harm for reason of his Falun Gong adherence. It does not accept that he was involved in protests in 1999; that he was intimidated and harassed at any time in the following years; that he was detained in 2006; that he faced any difficulties in obtaining a passport; or that he suffered any other harm. This conclusion is reinforced by the circumstances of the applicant’s travel to Australia, as evidenced by his passport, which he presented at hearing. The applicant’s lodgement of his visitor visa application in May 2006 (as stated at hearing), some 5 months after obtaining his passport and 4 months after his now-rejected detention by police in January 2006, was not satisfactorily explained. It indicates an unhurried departure from China, and leads the Tribunal to conclude that he did not have a genuine fear of persecution for any reason at all.
The Tribunal does not accept that the applicant will have any association with Falun Gong if he returns to China, or that he will be motivated to learn about it, as stated at hearing. The Tribunal discerns no other circumstances that might give rise to a real chance of prospective harm, let alone persecution. It therefore concludes that the applicant does not face a real chance of persecution, for any reason.
It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to China. He is not a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for 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 four grounds as follows:
(1)The Tribunal failed to consider my application for a protection visa according to s.91R of the Migration Act 1958. The Tribunal had bias against me when considered my application.
(2)The Tribunal did not carry out its statutory duty when considered my application for a protection visa. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. I did not have an opportunity to comment upon it.
(3)The Tribunal refused my application for a protection visa based on bias and assumption, not evidence and materials.
(4)A copy of the decision letter is attached.
The applicant filed an amended application on 26 April 2007 setting out the following grounds and particulars:
(1)The Tribunal failed to carry out its statutory duty.
Particulars:
a)The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
b)The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
c)The above particulars had to be provided in writing SAAP v Minister for Immigration and Multicultural and Industrial (sic Indigenous) and Ethnic Affairs [2005] HCA 24 (18 May 2001).
McHugh J
Para 68 “…The assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness in the way in which the Tribunal observes its statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the mandatory nature of the obligation in s.424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s.424A.”
Para 77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function…it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act…a decision made after a breach of s.424A is invalid.”
Hayne J
Para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as is reasonably practicable that the appellants understand why it is relevant to the review. The Tribunal failed to do so constituted jurisdictional error.”
Para 208 “…whether those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
d)The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa.
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) (sic 2001) 110 FCR 27
Para 17 “…In our view, ‘applicant’ wherever appearing in s.424A means ‘application for review by the Tribunal of a ministerial decision’ and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The Court did not accept the Minister’s argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
e)The Tribunal based its findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
Findings of the Court as to the grounds in the application
Ground one alleges a failure to comply with s.91R, but is not particularised. No breach of s.91R has been established. This claim is rejected.
Ground one then alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that “an allegation of bias must be clearly made and distinctly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507.
“The Court accepts also that it is a rare and exceptional case in which actual bias can be demonstrated solely from the published reasons of the decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
“To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Bias has not been established. This claim is rejected.
Ground two alleges a breach of s.424A of the Act. The reason for the decision of the Tribunal was its adverse findings of credibility of the applicant. The Tribunal did not believe much of his evidence. Those findings of fact were properly open to the Tribunal and are not subject to review. As was stated by Tamberlin and R.D Nicholson JJ W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding”. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “`has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response.
The Court finds no reason to interfere with the findings of fact by the Tribunal that it did not believe the applicant’s evidence. The findings provided a proper basis for the decision of the Tribunal.Those findings were part of the subjective reasoning or conclusions of the Tribunal and are not “information” covered by s.424A(1). As stated in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206] per Allsop J:
“Information” does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s.424A. The thought processes of the Tribunal may reveal the relevance of information for s.424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s.424A(1)(a), (b) or (c).
No breach of s.424A has been established. The Court rejects ground two.
Ground three alleges bias. This ground is rejected for the reasons that the allegation of bias in ground one is rejected.
Ground four attached a copy of the “decision letter” of the Tribunal and raises no ground for review. All grounds in the application are rejected.
Findings of the Court as to the grounds in the amended application
Ground one complains that the Tribunal failed to carry out its statutory duty.
Particular (a) describes the information that the applicant says was before the Tribunal and raises no ground for review. It is rejected.
Particular (b) alleges a breach of s.424A. For the reasons expressed in relation to ground two of the application, this particular is rejected.
Particular (c) says that the decision in SAAP v Minister for Immigration and Multicultural and Indigenous and Ethnic Affairs [2005] HCA 24 requires that information covered by s.424A must be given to the applicant in writing. The decision in SAAP is relevant only where there is “information” that is required by s.424A(1) to be given to the applicant. As there was no such “information” here, the decision in SAAP is of no relevance. Particular (c) is rejected.
Particular (d) refers to the decision in Minister for Immigration and Multicutlural Affairs v Al Shamry (2001) 110 FCR 27 and alleges that “the Tribunal based its decision on the information or lack of information in his application for a visa”, and that s.424A(1) requires that such particulars be given to him in writing.
The applicant presented his passport at the hearing (CB 105.4). The Tribunal did not rely on the information in the applicant’s application for a protection visa, but merely referred to the applicant’s evidence at the hearing that he lodged the application in May 2006 (CB 105.5). The above information was given by the applicant for the purpose of the application, and is covered by the exception in s.424A(3)(b). No material apart from that given by the applicant for the purpose of the application was relied on by the Tribunal as the reason or part of the reason for its decision. The reason for the decision of the Tribunal to affirm the decision of the delegate was that it did not believe much of the applicant’s evidence. Those conclusions and reasoning of the Tribunal are not “information” for the purpose of s.424A: SZEEU (ante). The decision in Al Shamry is therefore of no relevance to this matter. Particular (d) is rejected.
Particular (e) complains that the Tribunal based its findings on the information or lack of information contained in the applicant’s application for a protection visa. For the reasons given above, this has not been established. Particular (e) is rejected.
The grounds and particulars in the amended application are rejected.
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 and amended application are dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 2 July 2007
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