FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 356 |
| MIGRATION – Review of RRT decision – where applicant claimed to have provided medical assistance to Falun Gong practitioners in China but not a practitioner herself – mischaracterisation of claim – whether the Tribunal incorrectly assumed the applicant was aligned with Falun Gong and ought to have associated with the movement in Australia – apprehended bias – where Tribunal said it did not believe the applicant – whether Tribunal had closed its mind against consideration of further probative evidence – expression of preliminary views considered. |
| Applicant: | SZKHL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1513 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 April 2009 |
| Date of Last Submission: | 20 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari directed to the Second Respondent removing into this Court to be quashed the decision made by it on 29 April 2008.
A writ of mandamus directed to the Second Respondent to rehear and determine the Applicant’s application for review according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1513 of 2008
| SZKHL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 29 September 2006. On 6 October 2006 she applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 10 November 2006 a delegate of the Minister refused to grant a protection visa and the applicant sought review from the Refugee Review Tribunal. On 26 January 2007 a first Tribunal affirmed the delegate’s decision but that affirmation was quashed by the Federal Magistrates Court on 16 November 2007 and the matter was remitted to be heard according to law by a second Tribunal. The second Tribunal interviewed the applicant and on 29 April 2008 determined to uphold the decision not to grant a protection visa. It handed that decision down on 15 May 2008.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are found in a series…
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- AGLC
- SZKHL v Minister for Immigration [2009] FMCA 356
- Case
- [2009] FMCA 356
- Decision Date
CaseChat Overview and Summary
The legal issues that arose from this case centered around whether the Tribunal had erred in its assessment of the applicant's claims and her credibility. SZKHL argued that the Tribunal failed to properly review the delegate’s decision and assess her claims as she had presented them. Specifically, she contended that the Tribunal incorrectly assumed her alignment with Falun Gong and misunderstood the basis of her fear of persecution. Additionally, she asserted that the Tribunal prejudged her credibility before the hearing was concluded.
In addressing these issues, the Court found that the Tribunal had indeed misconstrued the applicant's claims and had failed to properly consider her explanations. The Court was of the view that the Tribunal's reasoning indicated a misunderstanding of the applicant's position, particularly regarding her association with Falun Gong and her reasons for fearing persecution. The Court concluded that the Tribunal's findings were based on an incorrect premise and that the Tribunal had not assessed the applicant's claims as she had made them. Consequently, the Tribunal's decision was quashed, and the matter was remitted for rehearing.
The Court ordered the decision of the Second Respondent to be quashed and directed the Minister to rehear and determine the applicant's application for review according to law. Furthermore, the Court ordered the First Respondent to pay the applicant's costs assessed in the sum of $5,000.00.
Orders
Orders of the court
1.
A writ of certiorari directed to the Second Respondent removing into this Court to be quashed the decision made by it on 29 April 2008.
2.
A writ of mandamus directed to the Second Respondent to rehear and determine the Applicant’s application for review according to law.
3.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,000.00.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is this reasoning which has led the applicant to claim that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions. In an Amended Application filed on 1 February 2009 the applicant’s grounds were stated to be:“1.The Tribunal failed to review the delegate’s decision as required by s 414 Migration ActParticulars(a)The Tribunal failed to assess the Applicant’s claimed fear of persecution on the basis of the claims that she actually made.Further Particulars(i) It incorrectly assumed that she was aligned with Falun Gong, such that she would engage in protests with Falun Gong practitioners.(ii) It suggested, incorrectly, that the Applicant had obtained a passport for herself in May 2006 because she was concerned for her safety, whereas the evidence was that it was her husband who obtained the passport for her because he was concerned for her safety.(iii) It acted upon the premise that the Applicant had “a longstanding commitment to human rights” whereas she had a longstanding commitment, not to human rights in general, but to the principle that medical treatment should be available to all.(iv) It failed to consider the Applicant’s claim that she had come to be in fear of persecution only after her second detention.2.There is a reasonable apprehension that the Tribunal prejudged the Applicant’s credit.Particulars(a)The Tribunal records itself as stating, before the conclusion of the hearing, and before final submissions had been made and evidence given, that it did not believe the Applicant.” Before dealing with the law in relation to these matters I should set out my findings as to whether the allegations made are correct. Although the Tribunal acknowledges that the applicant is not a follower of Falun Gong the impression obtained from a reading of the whole of the decision is that it expected that a person who had acted in the manner the applicant had would have a natural inclination to continue an association with Falun Gong practitioners upon her arrival in Australia. So strong was that presumption that it is the incongruity of her not doing so that forms the basis for the Tribunal’s findings on credibility. It is most unfortunate that the Court was not provided with a transcript of what occurred at the Tribunal hearing because the manner in which the applicant’s responses are recorded could as easily be referable to continuing questioning by the Tribunal as to the voluntary provision of extra information in relation to her reasoning. The important point is that she commences her reasons for not associating with Falun Gong in this country by reiterating that she was not a Falun Gong practitioner. It is only thereafter that there appears the information that she was concerned about spies in the Chinese community in Australia. Even if that information was provided voluntarily and not as the result of further questioning from the Tribunal, which might have led an applicant to believe that she was required to continue to say more when her first answer would otherwise have been sufficient, I am unable to see what the incongruity is. It seems to me that in total there is a very good explanation for why the applicant is not associating with Falun Gong practitioners in Australia. The only basis upon which the applicant might have associated with Falun Gong practitioners in Australia is if she was sympathetic to their cause. She has never claimed to be sympathetic to their cause. She has only claimed that they have the same basic human rights as other people, particularly the basic human right to be provided with medical assistance. I am of the view that the manner in which the Tribunal has expressed itself in these paragraphs would seem to indicate that it has misconstrued the applicant’s claims.