SZKHD v Minister for Immigration
[2007] FMCA 1121
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1121 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – applicant’s conduct in Australia disregarded – whether the Tribunal overlooked corroborative evidence and misapplied s.91R(3) of the Migration Act 1958 (Cth) considered – no reviewable error found – application dismissed. |
| Evidence Act 1995 (Cth), ss.55, 76, 79 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 65, 91R, 353, 424A |
| SZGYT v Minister for Immigration & Anor [2007] FMCA 883 SZITH v Minister for Immigration & Anor [2007] FMCA 1162 |
| Applicant: | SZKHD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 349 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 13 July 2007 |
| Date of Last Submission: | 6 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with r.44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 349 of 2007
| SZKHD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 14 December 2006 and was handed down on 16 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 1 through to 10 of the applicant’s written submissions filed on 12 July 2007 and paras.2 through to 10 of the Minister’s written submissions filed on 12 July 2007:
The applicant, a citizen of China, arrived in Australia on 29 June 2006.[1]
[1] court book (CB) 15
On 3 July 2006 the then Department of Immigration and Multicultural and Indigenous Affairs (Department) received an application for a protection visa from the applicant.[2]
[2] CB 1
On 28 July 2006 a delegate of the Minister refused the application for a protection visa.[3]
[3] CB 33
On 8 August 2006 the Tribunal received an application for review of the delegate’s decision.[4] On 23 August 2006 the Tribunal wrote to the applicant, advising her that it was unable to arrive at a decision in her favour on the material before it.[5] The applicant was invited to attend a hearing and the applicant attended the hearing on 25 September 2006.[6]
[4] CB 43-52
[5] CB 55
[6] CB 59
On 28 August 2006 and 11 September 2006[7] the applicant saw a psychologist at the Transcultural Mental Health Service, following which the psychologist wrote a preliminary report dated 28 August 2006[8] and a final report dated 15 September 2006.[9] The applicant provided a copy of the reports to the Tribunal.
[7] CB 64.9
[8] CB 63
[9] CB 64-66
On 2 November 2006 the applicant attended a further hearing before the Tribunal.[10]
[10] CB 68, 75
On 13 November 2006 the Tribunal sent the applicant a s.424A letter.[11]
[11] CB 77-80
On 4 December 2006 the applicant replied to the s.424A letter.[12]
[12] CB 81-84
On 16 January 2007 the Tribunal handed down a decision affirming the delegate’s decision not to grant the applicant a protection visa.[13]
[13] CB 89
Applicant’s claims
The applicant set out some claims in her protection visa application.[14] The Tribunal accurately summarised the claims in its decision.[15] It is evident from the decision of the Tribunal that the applicant elaborated upon her claims with further oral evidence at the two hearings and in response to the s.424A letter sent to her by the Tribunal after the second hearing.[16]
[14] CB 19, 27–32
[15] CB 94
[16] CB 91 – 96
In summary, the applicant claimed:
a)she became a member of Falun Gong in 1997;
b)she organised many Falun Gong activities including a sit in demonstration outside Shanghai City Council building in 1999;
c)in 2000 she was arrested by the local secret agents from the ‘610 office’ and sent to a labour camp for 3 years;
d)one month prior to being arrested she had given birth to a daughter. As a result of her arrest and detention her husband obtained custody of her daughter and she now does not know where her daughter is;
e)she was released at the end of her term in the labour camp only because her parents paid a bribe and because she renounced Falun Gong;
f)for a year after she was released she kept quiet so as to not attract the attention of the authorities;
g)however, in 2004 she contacted the local Shanghai Falun Gong organisation and offered her services;
h)between 2004 and 2005 she went to the Northern part of China to give support to local Falun Gong organisations;
i)in 2006 she was involved in a trip from China to Malaysia and Singapore which involved escorting Falun Gong adherents out of China, and also exposing the outrageous treatment of the Chinese government towards Falun Gong practitioners to the outside world;
j)in May 2006 when she returned to China her parents asked her to stay away from the home where she had lived with them. They told her that authorities had come searching for her and she had to flee China;
k)she left China on her own passport through the city of Guanzhou where it was possible to obtain a visa because of her contacts in the PSB in that city;
l)she will be imprisoned in labour camp and possibly transferred to a ‘madhouse’ if she returns to China. She will disappear from society never to be released; and
m)she has participated in Falun Gong activities in Australia.
The Tribunal’s decision
The Tribunal:
a)found that the applicant did not have a ‘genuine belief in, or commitment to Falun Gong beliefs and practices’[17]
b)addressed each of the essential factual components of the applicant’s claims and explained why those claims were not ultimately accepted;[18]
c)found the applicant had engaged in activities in Australia in order to strengthen her claims to be a refugee and therefore disregarded that conduct pursuant to s.91R(3) of the Act;[19]
d)noted that it took into account the applicant’s mental health difficulties as evidenced by the report of a treating psychologist provided to the Tribunal by the applicant;[20]
e)concluded that the applicant was not a person to whom Australia owed protection obligations. [21]
[17] CB 106.7
[18] CB 106 – 110
[19] CB 109.8
[20] CB 110.4
[21] CB 110.8
The application
These proceedings began with a show cause application filed on 6 February 2007. There is no doubt that that application was filed within time. At the trial of this matter on 13 July 2007 the applicant relied upon an amended application filed on 11 May 2007. However, counsel for the applicant advised the Court that his submissions would in some respects retreat, and in other respects advance from, the grounds in that amended application. The applicant did not press ground 1 in the amended application.
The applicant says that the Tribunal fell into jurisdictional error in the following ways:
a)The report from the Transcultural Mental Health Centre corroborates aspects of the applicant’s claims. The Tribunal overlooked or failed to have regard (or adequate regard) to the report in the course of finding that “the applicant was [not] in fact detained and imprisoned for three years as claimed”. On this basis, the Tribunal fell into jurisdictional error. (“Corroborative evidence issue”)
b)The Tribunal erred in its application of s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”) (“section 91R issue”)
The applicant has not taken up the opportunity to file evidence in support of the application. The only evidence before me is the court book filed on 12 March 2007.
On 13 July 2007 I gave the applicant leave to file and serve a further amended application to more accurately reflect the grounds upon which the applicant finally relied, as well, if she wished, to add an additional ground of failing to consider what the position would have been if the Tribunal had been wrong in its adverse credibility findings. A further amended application was filed on 23 July 2007. The grounds in that application are:
1.The applicant provided to the Tribunal a psychological report from the Transcultural Mental Health Centre. The report corroborated the applicant’s claims that she was detained for three years between 2000 and 2003. The Tribunal overlooked the report in the course of finding that “the applicant was [not] in fact detained and imprisoned for three years as claimed” (page 19.7). On this basis, the Tribunal fell into jurisdictional error.
2.The Tribunal fell into jurisdictional error in making its finding under s.91R(3) of the Migration Act. Specifically:
a)The proper construction of s.91R(3) is that where: (i) a person engages in conduct for more than one purpose; (ii) one purpose is to “strength[en] the person’s claim to be a refugee”; but (iii) there is another or other purposes, the pre-conditions for the operation of s.91R(3) are not satisfied and the Minister is not permitted to disregard the conduct engage din by the person. The Tribunal, in the course of finding that “the must disregard [the applicant’s] conduct as required by s.91R(3) of the Act, misconstrued s.91R(3), giving rise to jurisdictional error.
b)For s.91R(3) to apply the Tribunal must be satisfied that the applicant’s entire engagement in Falun Gong activities, from the time she commenced in July or August 2006 to the time she was likely to leave Australia, was “for the purpose of strengthening her claim to be a refugee”. The Tribunal failed to appreciate this point in making its finding under s.91R(3) and, in these circumstances, erred in its construction or application of s.91R(3).
c)In relation to the Tribunal’s finding under s.91R(3), there was no evidence to support the finding, or the finding was irrational, illogical or not based on findings or inferences of fact supported by logical grounds.
d)In relation to the Tribunal’s finding under s.91R(3), the Tribunal did not give genuine consideration to the evidence which supported a finding that the applicant was a genuine Falun Gong practitioner.
Grounds 2(c) and 2(d) were not pressed in the event that those grounds fell outside the leave to amend granted on 13 July 2007. That is the case. Those grounds are afterthoughts following the trial of the matter, not grounds relied upon at the trial. Accordingly, I do not in this judgment deal with those grounds.
Submissions
The applicant, through her counsel, makes the following submissions in writing:
Before the Tribunal made its decision, the applicant provided the Tribunal with a preliminary report from a psychologist at the Transcultural Mental Health Centre dated 28 August 2006. (CB 63) In the report the psychologist appears to say:
a)The applicant’s “presentation” was consistent with her claim that “she was tortured for the past three years”.
b)The applicant’s presentation, in particular her “mental health”, was consistent with her claim that “she was imprisoned shortly after giving birth”.
Before the Tribunal made its decision, the applicant provided the Tribunal with a final report from the psychologist at the Transcultural Mental Health Centre dated 15 September 2006. (CB 64-66) In the report the psychologist appears to say:
a)The applicant had a psychological condition which was consistent with “exposure to persecution” and “incarceration”. (CB 66.4)
b)The applicant had suicidal thoughts caused by “continu[ing] to live in fear of the Chinese government. (CB 66.2)
c)The applicant’s presentation was consistent with her claim that she was incarcerated. Hence she “was assessed to have suffered a lot when incarcerated. (CB 65.9)
d)The applicant’s had “unresolved grief and trauma” which was consistent with her claim that her daughter had been taken away from her. (CB 65.10)
e)The psychologist noted that the applicant was weepy when “discussing about her incarceration in China”, and opined that this was a “manifested symptom” which was “indicative of depressive features”. (CB 65.3) This observation appears to support the psychologist’s later conclusions that the applicant had a psychological condition which was consistent with her claims of detention, torture and persecution by the Chinese government.
The Tribunal was aware of the report and its contents. Hence the Tribunal stated in the section of its decision titled “Claims and evidence” at CB 97.7:
The applicant also provided a psychological report from the Transcultural Mental Health Centre indicating that the applicant has a severe depressive disorder with suicidal ideation. The report claims that the applicant’s condition is a result of her claimed incarceration and persecution in China and the loss of her daughter …
A question is how the Tribunal dealt with the report in the section of its decision titled “Findings and reasons”. There are two relevant points.
First, the Tribunal, in the course of its findings in relation to the applicant’s claims concerning “Falun Gong practice” (CB 106.5), “Demonstration in Shanghai (CB 106.8), “Arrest and detention” (CB 107.1), and “Escorting Falun Gong members to Kuala Lumpur and Singapore” (CB 107.8), makes no reference to the report or the psychologist’s opinion.
Second, the Tribunal states under the heading “Other relevant consideration” (CB 110.3):
The Tribunal is mindful of the applicant’s mental health issues and does not question the conclusions of the treating psychologist. (emphasis added)
In light of the above matters, the Tribunal fell into jurisdictional error. The error can be explained in the following steps.
First, the Tribunal “does not question the conclusions of the treating psychologist”. (CB 110.3) It follows that the Tribunal accepted the conclusions of the treating psychologist: see STCB v MIMIA (2006) 231 ALR 556 at [23] (High Court).
Second, the evidence of the psychologist, if accepted, corroborates the applicant’s claims. The evidence is opinion evidence. However, at common law and under the Evidence Act 1995 (Cth) the opinion of an appropriately qualified expert in relation to a fact is:
a)admissible to prove the existence of the fact (see s 79 of Evidence Act); and
b)could rationally affect the assessment of the probability of the existence of the fact: see s 55(1) of Evidence Act.
Third, where an applicant provides corroborative evidence to the Tribunal, the Tribunal is “bound to have regard to the corroborative evidence before attempting to reach a conclusion on the applicant’s credibility” (WAIJ v MIMIA (2004) 80 ALD 568 at [27]). “Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error”: WAIJ v MIMIA at [27].
Fourth, where a decision-maker is bound to have regard to evidence, it is insufficient for the decision-maker to merely refer (“fleeting uncritical reference” – see NAJT v MIMA below) to or be aware of the evidence. Instead, the Tribunal must have “engage in an active intellectual process (see NAJT v MIMA below) in relation to the evidence.
Thus, in NAJT v MIMA (2005) 147 FCR 51 at [212] Madgwick J (with whom Conti J agreed) stated:
There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so
Similarly, in Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] Hely J stated:
If a consideration is relevant in a Peko-Wallsend sense, a decision-maker does not take it into account if he dismisses the consideration as irrelevant. It was, I think, in that sense that Wilcox J said in Nestle Australia (supra) at 184:
To take a matter into account means to evaluate it and to give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.
In Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468, Lindgren J, under the heading "What it means to 'take into account' a relevant consideration", said that the issue is whether the decision-maker "really", "genuinely", "properly" and "effectively" took into account the consideration in question, but recognising that the weight to be given to the consideration, either in an absolute or relative sense, is a matter for the decision-maker. In NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40, Allsop J recognised at [155] that a particular matter may be identifiable as having been touched upon by a decision-maker, but that does not necessarily mean that it has been taken into account in the sense referred to in the authorities.
In the present case, the Tribunal, in considering whether the applicant’s claims about being detained and tortured in China were true, was required to have regard to, and “engage in an actual intellectual process” in relation to, the corroborative evidence of the psychologist in the reports from the Transcultural Mental Health Centre. The Tribunal failed to have such regard to the corroborative evidence. On this basis, the Tribunal fell into jurisdictional error.
Section 91R issue
There was an abundance of evidence before the Tribunal that the applicant has been a Falun Gong practitioner in Australia. Hence:
a)“The applicant demonstrated a good understanding and knowledge of Falun Gong exercises; she was able to name all the exercises and explain their purpose.” (CB 106.5)
b)“At the second Tribunal hearing the applicant touched on the difficult political issues surrounding the banning of Falun Gong in China and upon its apocalyptic aspects.” (CB 106.7)
c)The Tribunal accepted “that the applicant may have attended a Falun Gong group in Australia and also that she engaged in the study of Falun Gong and attended some Falun Gong activities”. (CB 109.1)
d)Dawei Lu (an Australian permanent resident) wrote a letter dated 28 October 2006 in support of the applicant’s claims that she was a Falun Gong practitioner. (CB 72) Mr Lu stated that since late August or early September 2006 he had seen the applicant:
· practice Falun Gong regularly at a practice location in Campsie;
· regularly attend a Falun Dafa learning session; and
· attend two rallies against the Chinese Communist Party.
Section 91R(3) of the Migration Act provides:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The applicant has two complaints about the application of s 91R(3).
First, the proper construction of s 91R(3) is that where:
a) a person engages in conduct for more than one purpose;
b) one purpose is to “strength[en] the person’s claim to be a refugee”; but
c) there is another or other purposes,
the pre-conditions for the operation of s 91R(3) are not satisfied and the Minister is not permitted to disregard the conduct engaged in by the person.
The Tribunal should have considered this issue in considering the applicant’s motivation for her Falun Gong activities in Australia.
There is no reference in the Tribunal’s reasons for decision to this issue. In the circumstances, it is open to the Court to conclude that the Tribunal overlooked this issue: see Kalala v MIMA (2001) 114 FCR 212 at [23]-[27].
Second, for s 91R(3) to apply the Tribunal must be satisfied that the applicant’s entire engagement in Falun Gong activities, from the time she commenced in July or August 2006 to the time she was likely to leave Australia, was “for the purpose of strengthening her claim to be a refugee”.
Again, there is no reference in the Tribunal’s reasons for decision to this issue. In the circumstances, it is open to the Court to conclude that the Tribunal overlooked this issue: see Kalala v MIMA at [23]-[27].
In addition, in oral submissions, the applicant relies upon the decision of the High Court in STCB v Minister for Immigration (2006) 231 ALR 556 at [20]-[23] in relation to the consequences of a tribunal reaching findings inconsistent with facts which have been accepted. Further, the applicant relies upon my own decision in SZGYT v Minister for Immigration [2007] FMCA 883 in relation to the interpretation of s.91R(3) of the Migration Act.
The Minister’s written submissions are relevantly as follows:
It can not be said that the Tribunal ‘overlooked’ the psychologist’s report. It was referred to in the decision at CB 97.7 and expressly addressed by the Tribunal in its Findings and Reasons at CB 110.4 where it was described as a ‘relevant consideration’.
There is no basis upon which a failure to consider a ground can be made out.
The Tribunal’s treatment of the psychologist’s report must be read in context, and with regard to the Tribunal’s decision as a whole.
Whilst the Tribunal stated at CB 110.3 that it did not question the conclusions of the treating psychologist, that statement must be taken to refer to the ultimate conclusion that the applicant had a major depressive disorder because it is preceded by the observation that ‘the Tribunal is mindful of the applicant’s mental health issues’. The Tribunal’s statement must also be read in light of the extensive and comprehensive discussion under the seven sub-headings which precede the sub-heading ‘Other relevant considerations’. That discussion, containing several adverse findings against the applicant’s factual claims makes it abundantly clear that the Tribunal did not believe the applicant’s claims. This can be distinguished from the situation in STCB v MIMIA (2006) 231 ALR 556 upon which the applicant relies. It can not be said that the Tribunal implicitly accepted the facts as told to the psychologist. That would be a perverse way to read the Tribunal’s decision.
It is also important to note that that the psychologist’s report was prepared by the psychologist for the Red Cross on 15 September 2006 - after the applicant’s application for review of the Tribunal’s decision and not long before the first Tribunal hearing conducted on 25 September 2006. It was apparently prepared for the purpose of an application by the applicant for subsidised accommodation and living expenses.
In all of these circumstances the Court can and should infer that the Tribunal, whilst accepting the conclusion of the psychologist’s report that the applicant had a major depressive disorder (CB 63.6 and 66.4), did not accept the underlying factual matters said to be the cause of the depressive disorder.
It is clear that the account of the facts contained in the psychologist’s report totally reliant upon the applicant’s say-so. The psychologist had no (and did not purport to have) personal knowledge of the facts as told to him/her by the applicant. It can only be expected that in any report given to the Tribunal by the applicant outlined her account of the events in China, the factual claims would be consistent with those made to the Tribunal. The result is that the probative value of the psychologist’s report was extremely low. It was not necessary for the Tribunal to spell out what is clear – namely, to the extent that the psychologist relied upon facts in coming to the view that the applicant had a major depressive disorder it was relying upon facts as told to him/her by the applicant.
The applicant makes reference in written submissions to the Evidence Act in support of this ground. The Evidence Act has no application whatsoever to Tribunal proceedings. The Tribunal is not bound by the rules of evidence: section 353(2)(a) Migration Act. However, it is noted that whilst s 79 of the Evidence Act provides an exception to the opinion rule (which provides that evidence of an opinion is not admissible to prove the existence of the fact about the existence of which the opinion was expressed)[22] it is the ‘opinion’ of the expert which is admitted as evidence. In other words, the underlying facts upon which the opinion is based must be independently verified before those facts can be rationally found to exist. This is why there is a need to always distinguish between the assumed facts and the expert’s opinion.[23] There is ample authority for the view that the facts upon which an expert’s opinion is based should not be treated as evidence of the truth of those facts or assertions. The facts or assertions must be established by other evidence.[24]
Whilst the Tribunal did not specifically state that this was the way in which it viewed the psychologist’s report, it is the only the rational and logical inference available.
For similar reasons, the applicant’s assertion that the psychologist’s report was ‘corroborative’ evidence is misconceived. The evidence was not corroborative in the real sense because, as suggested above, it relies entirely upon the applicant’s own account of the events in China. All that the report establishes[25] is that the applicant told the psychologist similar things to that which she told the Tribunal. In this way it can be contrasted with the authorities upon which the applicant relies. In each of those cases, the evidence with which the decision maker was bound to ‘grapple’ or ‘engage [with] in an active intellectual process’ was evidence which was truly corroborative, and which had (or purported to have) some independent basis.[26] In this way the psychologist’s report can be distinguished from those categories of documents which purport to provide independent verification of an applicant’s claims, such as court warrants or medical records.
In such circumstances it is unnecessary for the Tribunal to state what is obvious if one reads the Tribunal’s decision as a whole and without an eye too keenly attuned to error: that the facts relayed to the psychologist by the applicant were not believed by the Tribunal.
[22] See s 76 Evidence Act
[23] See HG v R (1999) 197 CLR 414 at [39]. Practice directions in various jurisdictions also require this distinction to be made.
[24] R v Hilder (1997) 97 A Crim R 70 at pp 82 – 83 per Hunt CJ at CL. See also s 136 of the Evidence Act which provides that the use to which evidence can be put may be limited.
[25] Insofar as the questions for the Tribunal are concerned.
[26] WAIJ v Minister for Immigration (2004) 80 ALD involved a letter to the applicant from her sister in Iran and a notice of dismissal issued by the applicant’s former employer in Iran: see at [6], [10] and [11]. In that case the Tribunal stated that it did not have to consider the documents and that was the source of the jurisdictional error. In NAJT v Minister for Immigration (2005) 147 FCR 51 the document in question was a a letter from the local Falun Gong officials in Australia: see at [16]. It was also contained information which would be ‘powerful evidence’ for the applicant’s case see at [210] – [212]. In NAJT the letter was not referred to at all in the Findings and Reasons, so the majority concluded that it may have been overlooked. It can not be said in the present case that the ‘inference should be drawn that the [Tribunal] did not actually consider what significance and weight it deserved.’ The reasons of the Tribunal suggest to the contrary.
Ground 3 – improper construction of s.91R(3)
It is difficult to see how the Tribunal misconstrued s 91R(3). In VBAO v MIMIA (2006) 93 ALD 259 Gummow J at [12] observed that ‘section 91R(3) is addressed to what was identified in Guo as element (4) of the Convention definition and the significance to be attached to conduct in Australia when assessing the presence of a well-founded fear of persecution’. The result is that 91R(3) goes to the question of whether the fear expressed by the applicant is ‘well founded’.
All of the matters addressed by the Tribunal under the heading ‘Activities in Australia’ are matters that necessarily go to the question of whether the fear claimed by the applicant was well founded
The Tribunal accepted that the applicant had been involved in Falun Gong activities in Australia – indeed this accounted for the applicant’s improved knowledge of Falun Gong between the first and second hearings.[27]
The Tribunal also noted that the statement of a fellow Falun Gong practitioner provided by the applicant may well have been provided in good faith, because it would appear to such a person that the applicant was committed to Falun Gong. However, the Tribunal gave the statement little weight because by itself it did not establish a genuine commitment to Falun Gong. This course was open to the Tribunal.
Next, the Tribunal was not satisfied that there was sufficient evidence provided by the applicant to demonstrate her claim that she had published on the internet a declaration to quit the Communist Party, in circumstances where it would have been very easy for the evidence to be provided.
The Tribunal also rejected assertions by the applicant in her response to the s 424A letter that the Chinese government was now watching her and that her parents were having a hard time because the authorities perceived them as being responsible for the applicant’s ability to leave China. Again, the Tribunal noted that no evidence of these mere assertions had been provided by the applicant.
The Tribunal made an express finding that it disregarded the applicant’s Falun Gong conduct in Australia pursuant to s 91R(3) because it had ‘formed the view that the applicant had engaged in activities in Australia in order to strengthen her claim for refugee status’. This is a finding of fact and it is not ‘open to the Court to substitute its view for that of the [Tribunal]’.[28]
The applicant’s reliance on Kalala v MIMA (2001) 114 FCR 212 is misplaced. Kalala was a case concerned with the real chance test in the context of the Tribunal expressing some doubts about the firmness of its conclusions for the purposes of s 36 and 65 of the Act. Kalala was not concerned with s 91R(3) which contains a clear direction from the legislature to the Minister to disregard conduct engaged in by an applicant for refugee status unless the applicant satisfies the Minister that the conduct was engaged in otherwise than for the purpose of strengthening the applicant’s refugee claims. It was certainly not concerned with the construction of s 91R(3) which the applicant now seeks to advance. It is not necessary to determine whether the applicant’s suggested construction of s 91R(3) is correct, because the facts here do not give rise to the question. There is no suggestion here that the Tribunal was of the view that the applicant might have engaged in the activities in Australia for dual purposes. Nor is there any suggestion that the Tribunal had any doubts about its conclusions concerning the applicant’s Falun Gong activities in Australia. The Tribunal stated expressly that it had formed the view that the applicant had engaged in Falun Gong activities in Australia for the purposes of strengthening her claims to be a refugee (and that she had no real commitment to Falun Gong).[29] This can be taken to be a finding with respect to all of her claimed conduct. Thus, the Tribunal was required to disregard all of that conduct.
Section 91R(3) places the onus of proof on the appellant to establish that her activities in Australia were engaged in for reasons other than for the purpose of strengthening her refugee claims. The onus of proof is to the civil standard, but it is borne by the applicant.[30] The applicant simply did not discharge the burden that she had in this regard.
There is no misconstruction of s 91R(3) here. Properly understood, the applicant’s complaint really amounts to an attempt to second guess the findings of the Tribunal in relation to s 91R(3).
[27] CB 106.6
[28] NAQS v Minister for Immigration [2002] FMCA 301 per Raphael FM at [10].
[29] CB 109.8
[30] NAST v Minister for Immigration [2002] FCA 1536 at [26] per Wilcox J and approved in NBKT v Minister for Immigration [2006] FCAFC 195 at [89]. See also at [88] – [98].
In oral submissions, counsel for the Minister submitted that the present case can be distinguished from SZGYT because in this case there is nothing to indicate that the Tribunal restricted its consideration of the motivation for the applicant’s conduct in Australia to the commencement of that conduct. Counsel for the Minister further submits that the present case can be distinguished from STCB because, in this case, there was no acceptance of facts inconsistent with the conclusions reached by the Tribunal.
I gave the parties the opportunity to file additional written submissions in relation to the “what if I am wrong?” principle in Minister for Immigration v Rajalingam (1999) 93 FCR 220. Counsel for the applicant submitted additional submissions that were filed in my chambers on 23 July 2007. Those submissions made clear that the applicant does not contend that the Tribunal failed to consider “what if I am wrong?”. The balance of those submissions dealt with grounds 2(c) and 2(d) which fell outside the leave to amend I had granted.
The Minister filed submissions in reply on 6 August 2007. The Minister’s submissions repeat the earlier submissions in relation to ground 2(a). In relation to ground 2(b) the Minister further submits:
To the extent that the applicant suggests in this ground or ground 2(a) that the Tribunal’s consideration was either confined to a consideration of:[31]
(a)only part of the reason for the applicant’s practice of Falun Gong in Australia (i.e. that he might have had another reason or a dual reason ; or
(b)only certain aspects of the applicant’s Falun Gong practice in Australia
[31] The written submissions to not appear to directly advance ground 2(b). Rather, they confirm that the ‘what if I am wrong’ issue raised by the Court is no longer advanced and then go on to advance the grounds which the Court has since indicated it will not consider.
the Minster submits that such a construction of the Tribunal’s reasons is not available.
At the hearing the applicant attempted to draw some comfort from the case of SZGYT v Minister for Immigration [2007] FMCA 883 per Driver FM. However, that was a case in which the Tribunal’s reasoning gave rise to an inference that the Tribunal had considered the applicant’s conduct in Australia only at the time he commenced his Falun Gong practice: see at [9]. However there is no equivalent reasoning here – and no suggestion that the Tribunal confined its consideration in this way at all. Rather, it is clear that the Tribunal’s s 91R(3) finding applied to all of the applicant’s conduct in Australia, and to any and all of the applicant’s motivations for engaging in the conduct. In this sense it is noted that the Tribunal references to the applicant’s lack of commitment to Falun Gong in the present tense (see CB 106.7, 109.8) – which suggests that there is no reasoning of the kind that was before the Court in SZGYT.
Further (and in order to address a matter raised by the Court at the hearing) it is pertinent to note that not all conduct by an applicant in Australia which might assist an applicant’s claim to a protection visa would fall within the ambit if s 91R(3). For instance, the act of applying to the Department for a protection visa and applying to the Tribunal for a review of the delegate’s decision could not be said to be conduct to which s 91R(3) applies. That be a perverse result. It would also be at odds with the plain and ordinary meaning of the words in s 91R(3). The type of conduct to which s 91R(3) applies is conduct which is engaged in by an applicant for the purpose of ‘strengthening’[32] his or her claim to be a refugee – not conduct which simply advances (or prosecutes) the a claim to be a refugee.
[32] In this context, ‘strengthening’ can be taken to mean ‘enhancing’. ‘Strengthen’ in Macquarie Dictionary (Third Edition) means: ‘to make stronger; give strength to’.
In relation to the “what if I am wrong?” test the Minister submits:
The applicant’s submissions at [8] concede that there does not appear to be any room for the application of the ‘what if I am wrong’ test in connection with s 91R(3) findings. Although this is not necessarily a view shared by the Minister, the Minister’s position is that the facts of this case (the unambiguous rejection of the applicant’s factual claims and the unambiguous s 91R(3) findings) means that this is not a case in which a close analysis of the ‘what if I am wrong’ principle is required. Not every case requires the Tribunal to ask this question - and this is a case where it was not required to be asked because the Tribunal had no ‘real doubt’ as to its findings.[33]
[33] If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong: Minister for Immigration v Rajalingam (1999) 93 FCR per Sackville ans North JJ at [55] – [67]. See also Kenny J at [134] – [137].
Reasoning
The psychologist’s report was plainly relevant material of some substance that the Tribunal needed to take into account. It did so take it into account. The Tribunal was not obliged to accept the opinions of the psychologist or the psychologist’s recitation of the applicant’s history, especially as the latter was derived from the applicant herself. The first issue concerning the validity of the Tribunal’s decision arises from the Tribunal’s acceptance of the “conclusions” of the psychologist. If the conclusions of the psychologist accepted by the Tribunal included conclusions relating to the applicant’s alleged persecution in China, then the acceptance of those conclusions would be inconsistent with the Tribunal’s finding that it was not satisfied that the claimed persecution in fact occurred.
The psychologist’s report appears on pages 64 to 66 of the court book. A difficulty is that the report does not contain anything clearly identified as “conclusions”. The first page of the report is simply introduction and the second page deals with the applicant’s presentation and history. The third page is in part a completion of that history and is followed by what are described as “diagnostic formulations” and recommendations. The Tribunal’s reference to “conclusions” could have been a reference to either the “diagnostic formulations” or the recommendations. It is unlikely to have been a reference to the recommendations because those were outside the scope of the Tribunal’s function. The diagnostic formulations were:
Axis I 296.3 Major Depressive Disorder, Severe With Suicidal Ideation
Axis IV: Exposure to persecution, loss of a daughter, negative life events/incarceration, economic problems
The first statement is a statement of opinion as to what the applicant’s mental condition was. The second statement is an expression of opinion as to the cause of that condition. It is unfortunate that the Tribunal was not more specific in stating what it was accepting. If the Tribunal was accepting the opinion as to the condition without the opinion as to the cause of the condition, it should have said so. It did not. At CB 107 the Tribunal found that the applicant’s account of her arrest, release and the payment of bribes by her parents to be “inconsistent, vague and implausible”. The Tribunal was not satisfied that the applicant was a Falun Gong practitioner at all or that she was imputed with such practice in China in the past[34]. The Tribunal was not satisfied that the applicant suffered past persecution. It would be wholly inconsistent with that finding for the Tribunal to have accepted the psychologist’s opinion that the applicant had a mental condition caused by persecution. In these unsatisfactory circumstances, I am left to infer that the Tribunal only intended to accept the psychologist’s opinion as to the applicant’s mental condition, not the cause of it. The opposite conclusion would render the decision absurd and irrational. I accept the Minister’s submission in relation to the first ground in the further amended application and find, with some hesitation, that the applicant has not established that the Tribunal overlooked the conclusions in the report which it said it had accepted.
[34] CB 110
I also agree with the Minister’s submissions that the applicant’s reference to the Evidence Act 1995 (Cth) (“the Evidence Act”) is not apposite. The Evidence Act has no application to proceedings in the Tribunal. Neither was there any failure by the Tribunal to engage in an active intellectual process in relation to the report. The Tribunal linked its consideration of the report to the issue of the fairness of the Tribunal’s hearing process, in the light of the applicant’s mental condition. The Tribunal did not consider the report in relation to the applicant’s protection visa claims (other than in respect to the inconsistency of her evidence) but, based on my inference that the Tribunal only accepted the opinion about the applicant’s mental condition, rather than the cause of it, the Tribunal did not need to consider the report as corroborative evidence. I reject the first ground of review.
I also agree with the Minister’s submissions concerning the challenge to the Tribunal’s decision in relation to s.91R(3) of the Migration Act. I have previously found that this section imposes an imperative duty on the Tribunal to disregard conduct engaged in Australia where advanced by an applicant in order to enhance protection visa claims[35]. While, in theory, the Tribunal might not be required to disregard conduct in Australia where there are multiple motivations for it, only one of which is a desire to enhance protection visa claims, one cannot draw from this Tribunal decision any recognition of multiple motivations for that conduct. At CB 109 the Tribunal goes through a course of consideration of the applicant’s conduct as a necessary step before concluding that she had engaged in that conduct in order to strengthen her claim for refugee status. I do not draw from that consideration any suggestion that there was any alternative motivation for the conduct. I reject the contention that there was any obligation on the Tribunal to look for alternative motivations.
[35] SZITH v Minister for Immigration & Anor FMCA [2007] 1162
The second complaint in relation to the Tribunal’s application of s.91R(3) seeks to draw support from my recent decision in SZGYT v Minister for Immigration & Anor [2007] FMCA 883. This case is distinguishable. In SZGYT it was apparent from the terms of the Tribunal decision that the Tribunal had directed its attention to the commencement of the applicant’s conduct in Australia, rather than the entire period of that conduct. There is nothing on the face of this decision to indicate that the Tribunal fell into that error. Likewise, the Tribunal was in no doubt in its conclusion. I agree with the Minister’s submissions that there was no misconstruction of s.91R(3).
As stated above, I have given no consideration to grounds 2(c) and 2(d) in the further amended application which fell outside the leave granted for the amendment.
I find that that applicant has failed to establish that the Tribunal fell into jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
As to costs, while counsel have been put to somewhat more effort than usual in the preparation of submissions, there is in substance nothing in this matter to take it beyond a case of average complexity in this jurisdiction. I will therefore apply scale costs of $5,000.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 August 2007
0
16
3