SZKGS v Minister for Immigration
[2007] FMCA 1549
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1549 |
| MIGRATION – Bias – Tribunal did not act dishonestly, arbitrarily, or capriciously – adverse finding of credibility does not show bias – credibility – finding of fact – will not set aside even if probability is against the finding. |
| Migration Act 1958 (Cth), ss.36(2), 91R, 424A, 474 |
| SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 Re Minister for Immigration and Multicutlural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZKGS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 712 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 13 August 2007 |
| Date of last submission: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 712 of 2007
| SZKGS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 1 March 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 8 January 2007, 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 stated in Court that he did not receive a copy of that decision, but then agreed that he had received a copy. The applicant filed an amended application on 31 May 2007.
The applicant was born on 25 December 1970 and claims to be from China (“the applicant”).
The applicant arrived in Australia on 9 September 2006 and lodged an application for a protection visa with Department of Immigration and Multicultural Affairs on 29 September 2006. In this application he claimed that he was persecuted by the Chinese authorities because of his “very active” Falun Gong activities. The applicant claimed that he was detained for five days “for investigation” by the police, who accused him of organising pro-Falun Gong demonstrations. The applicant claimed that he was mentally and physically tortured, and afterwards subjected to constant police surveillance. In 2004, the applicant was caught promoting Falun Gong to his fellow workers. The applicant claimed that he was again arrested and imprisoned for a month (Court Book “CB” 27).
This application was refused by a delegate of the first respondent on 19 October 2006 (CB 28-34).
On 23 November 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 35). The applicant attended a hearing before the Tribunal on 3 January 2007 to give evidence and present oral arguments (CB 49).
By decision signed on 8 January 2007, the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 66-68) (highlighting added):
The applicant travelled to Australia on a Chinese passport and claims to be a national of China. The Tribunal accepts that the applicant is a national of China and has assessed his claims against China as his country of nationality.
The applicant claims that he fears persecution because of his involvement in the practice of Falun Gong. The Tribunal accepts that Falun Gong may be considered to be a religion and that those practising Falun Gong may constitute a particular social group. On the basis of independent evidence cited above, the Tribunal also accepts that Falun Gong practitioners face persecution in China and that such persecution is for a Convention reason. However, for the reasons that follow, the Tribunal is not satisfied that the applicant was involved with Falun Gong as he claims.
The Tribunal found that the applicant’s written statement was inconsistent in many important respects to his oral evidence. The applicant explained that his written statement was prepared by a friend and he is not familiar with some of the claims. The Tribunal accepts that evidence and, for that reason, prefers the applicant’s oral evidence. Nevertheless, the Tribunal does not consider the applicant to be a credible witness. The Tribunal found the applicant to be evasive when giving evidence to the Tribunal and there were many inconsistencies in the applicant’s oral evidence. Much of the evidence was given only after the Tribunal’s prompting of the applicant.
The Tribunal found that the applicant displayed minimal knowledge about Falun Gong, its practise, philosophy and principles. The applicant correctly stated that there were five exercises, but he was only able to name three of the exercises and stated that he forgot the other two because he did not practise the fifth exercise and did not practise the fourth one frequently. The applicant did not know the basic principles of Falun Gong or its teachings. The applicant did not know how many lectures there were in Zhuan Falun, despite claiming that he had studied the book. The applicant was unable to state how he applied the principles of Falun Gong in daily life. The applicant was unable to state correctly the central beliefs of Falun Gong practitioners about the Wheel being implanted by Master Li and about the turning of the Wheel. The applicant stated that there were no benefits in practising Falun Gong other than to improve one’s health. He was unable to state any of the spiritual benefits from the practice.
In response to the Tribunal’s concerns about these matters, the applicant stated that he was not a regular practitioner, that he practised every few weeks for ten to fifteen minutes only and sometimes less. The applicant also stated that he had not reached a high enough level to practise the fifth exercise. The Tribunal does not accept that explanation. The Tribunal is not satisfied that the applicant’s lack of knowledge about the philosophy of Falun Gong may be explained by his intermittent practise, as the applicant’s lack of knowledge extended to the vary basic and central elements of Falun Gong practise. Further, the Tribunal is of the view that in order to be able to practise, the applicant must be cognisant of such elementary information as all five exercises. The Tribunal finds that the applicant’s knowledge of Falun Gong was extremely limited and not consistent with the level of knowledge that may be expected from a practitioner of more than ten years. For this reason, the Tribunal does not accept that the applicant was a Falun Gong practitioner or that he had at any time practised the exercises.
The Tribunal is supported in this finding by the fact that the applicant appears to have shown little commitment to Falun Gong practise or philosophy since coming to Australia. The applicant initially stated that he had not practised Falun Gong in Australia because he had to support his family and had little time. He later stated that he practised in private and not in public. There is no evidence before the Tribunal that the applicant has engaged in any formal practise or study sessions or in any other Falun Gong activity in Australia. The applicant claims that he was concerned about what people in Australia might say if he practises in public. The Tribunal does not accept this as a reasonable excuse for not engaging in the practise of Falun Gong if the applicant was a genuine practitioner. The Tribunal does not accept that the applicant has practised Falun Gong in Australia, either in public or in private or that he was engaged with Falun Gong in any other manner in Australia.
The Tribunal finds that the applicant is not a genuine Falun Gong practitioner and that if he returns to China now or in the foreseeable future, he will not engage in the practice of Falun Gong. The Tribunal finds that the applicant will not face persecution in China now or in the reasonably foreseeable future because of his involvement with, or the practise of, Falun Gong.
As the Tribunal found that the applicant was not involved in the practise of Falun Gong in the past, the Tribunal also rejects the applicant’s claim that he was detained by the authorities in 1999 and in 2004 as a Falun Gong practitioner or that he was subsequently interrogated or monitored by the police. The Tribunal found the applicant’s claims with respect to these matters to be vague and inconsistent. The applicant claimed that he was detained twice in 1999 as a Falun Gong practitioner, but once it was pointed out that at the time of the first detention in April 1999 Falun Gong was not prohibited by the authorities, the applicant stated that he was detained because he was accused of making fraudulent claims about health benefits of Falun Gong. The applicant referred to the five-day detention in 1999 only after much prompting of the Tribunal and he subsequently stated that he was only detained twice in 1999 for one day each. The applicant also stated that he was detained in 2004 because he was practising Falun Gong in the factory dormitory even though he earlier stated that he did not practise Falun Gong publicly. The Tribunal finds that the applicant was not truthful with respect to these claims. The Tribunal does not accept that the applicant was detained by the authorities at any time due to his involvement with Falun Gong.
The Tribunal does not accept the applicant’s claim that he had lost his job in 1997 as a result of being a Falun Gong practitioner. The applicant provided inconsistent evidence as to where he was working and whether he worked in the same factory from 1997 to 2006 or in different factories. After claiming that he lost his job, the applicant later stated that he was allowed to return to the factory after about six months in 1997 and he stayed there until 2005 or 2006. The applicant subsequently claimed that he was not given enough work and he worked in a different factory. When asked why the factory management would terminate his employment in 1997 for his involvement with Falun Gong if the practise of Falun Gong was lawful at that time, the applicant said that his employment was terminated because he missed a lot of time at work. The Tribunal finds that the applicant has not been truthful with respect to these claims. The Tribunal does not accept that the applicant had lost his job in 1997 or that he was discriminated in his job or that he later had difficulties finding employment because he was a Falun Gong practitioner.
The Tribunal rejects the applicant’s claim that he was on a black list with the Chinese authorities. When asked how he was able to obtain a passport and depart the country lawfully, the applicant claimed that perhaps the blacklist was only a local one and his name was not on the internet and the authorities were unaware of the applicant being on a black list. The Tribunal does not accept that explanation. The independent country information cited above suggests that there are stringent procedures involved in issuing passports. The Tribunal does not accept that the applicant was able to obtain the passport only because he paid a bribe. The Tribunal does not accept that the applicant is on the “black list” or that he is of any interest to the authorities.
The applicant claims that his spouse had lost her job and his child had difficulty in attending school. As the Tribunal found that the applicant was not engaged in the practise of Falun Gong in China, the Tribunal does not accept that the applicant’s spouse lost her job and that his child had difficulties with schooling for the reason of the applicant’s involvement with Falun Gong.
The Tribunal is not satisfied that the applicant had practised Falun Gong in the past or that he continues to do so in Australia. The Tribunal finds that the applicant has no genuine ongoing interest in Falun Gong. The Tribunal is not satisfied that the applicant, if he returns to China now or in the foreseeable future, will engage in the practice of Falun Gong.
The Tribunal finds that if the applicant returned to China now or in the reasonably foreseeable future, there is no real chance that he will face any harm because of his alleged involvement with Falun Gong or his alleged practice of Falun Gong or his alleged association with Falun Gong practitioners 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 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 Tribunal affirms the decision not to grant the applicant a Protection (Class XA) 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 three grounds as follows:
(1)The Tribunal failed to consider my claims for my application for a protection visa because of the Tribunal’s bias towards me.
(2)The Tribunal also committed jurisdictional error by failing to give me in accordance with s.424A of the Migration Act 1958 notice in writing of particulars of information that formed part of the reasons for affirming the decision of the delegate.
(3)The Tribunal failed to assess the chance of the persecution I would suffer on my return to China.
The applicant filed an amended application on 31 May 2007 setting out the following grounds and particulars:
(1)The Tribunal had bias against me and failed to consider the claims of my application. The Tribunal failed to assess the chance of my persecution on my return to China because of my practice of Falun Gong.
(2)The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore committed jurisdictional error by failing to give me in accordance with s.424A of the Migration Act 1958 notice in writing of particulars of information that formed part of the reasons for affirming the decision of the delegate.
Various matters have been put to the Court by the applicant in his submissions; they will be referred to at the end of the findings by the Court on the grounds in the application and the amended application.
Findings of the Court in relation to the grounds in the application
Ground one of the application alleges bias. The applicant reiterated that claim in Court. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly 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 “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for 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 or 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. Ground one and the other allegation of bias is rejected.
Bias cannot be established merely because the Tribunal found the applicant not to be credible. As stated in W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated 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. Such an impression cannot be communicated by consideration of the transcript alone.
As submitted in another matter:
The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The applicant claimed in Court that the Tribunal failed to consider his case and misunderstood his evidence. It is clear from its decision that the Tribunal considered all of the applicant’s claims. Ground one is rejected.
Ground two alleges a breach of s.424A. Further allegation was made of that breach in Court. No particulars are provided. It has not been shown that the 424A letter at CB 42-43 did not comply with s.424A. Ground two is rejected.
Ground three alleges that the Tribunal failed to assess the chance of persecution should the applicant return to China. That is incorrect; the issue was considered and the Tribunal did not accept that the applicant has a well-founded fear of persecution (CB 68.5 – 68.8). Ground three is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges bias and a failure to consider parts of the applicant’s claims. The ground therefore makes the same allegations as already dealt with by the Court in relation to the allegation of bias in the application and in Court. The allegation of bias is rejected for the reasons already expressed.
Ground two alleges a breach of s.424A. Such an allegation has already been dealt with by the Court in relation to the application and oral submissions in Court. Ground two is rejected for the reasons already expressed.
The applicant made an allegation in Court that the Tribunal failed to understand his evidence. No particulars were provided to support that allegation. It is coupled with an allegation that the decision of the Tribunal was based on assumptions instead of evidence. It appears to the Court that that allegation amounts to a challenge of the findings of fact by the Tribunal. Those findings of fact are not open to review in this hearing. Those allegations are rejected.
There is also an allegation that the Tribunal failed to comply with s.91R of the Act. The Court understands that to refer to s.91R(2). That provision relates to instances of serious harm for the purposes of deciding whether there is persecution within the Convention. No details have been given as to what the alleged breach of s.91R(2) involves. The Tribunal dealt with the issue in finding that there is no real chance that the applicant will face serious harm because of his alleged involvement with Falun Gong or for any other convention-related reason (CB 69.7).
The applicant further alleged that the Tribunal made a decision without giving reasons. A reading of the decision of the Tribunal shows that that allegation is baseless. The allegation is rejected.
It is alleged that the Tribunal considered irrelevant documents. Again, no particulars have been provided for that allegation. The Court finds that that allegation has not been established: it is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision which 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-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 10 September 2007
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