SZKIW v Minister for Immigration

[2007] FMCA 1846

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1846

MIGRATION – Review of decision of the Refugee Review Tribunal – adverse credibility finding – no evidence of bias – Tribunal made its decision on the basis of evidence – no obligation arises under s.424A of the Act – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 65, 91R, 422B, 424A, 425

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Minster for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; [2007] FCA 26
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35

Applicant: SZKIW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 870 of 2007

Judgment of: Nicholls FM

Hearing date: 2 November 2007

Date of Last Submission: 2 November 2007

Delivered at: Sydney

Delivered on: 2 November 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 15 March 2007, and amended on 7 June 2007, is dismissed.

2. The applicant is to pay the fist respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 870 of 2007

SZKIW

Applicant

And

MINISTER FOR IMMIGRATION & CITZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) and filed in this Court on 15 March 2007, and amended on 7 June 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 15 January 2007 and handed down on 8 February 2007, which affirmed the decision of a delegate of the first respondent not to grant a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China who arrived in Australia in July 2006 and applied for a protection visa in August of 2006.  I note a bundle of relevant documents (“the Court Book” (“CB”) filed by the Minister in this matter in compliance with orders made by a registrar of this Court, and I note from that on 5 October 2006 a delegate of the Minister refused to grant a protection visa to the applicant. In November 2006, the applicant sought review of that decision by the Tribunal.

The applicant’s claims to protection

1. The applicant’s claims to protection were initially set out in a statement annexed to his application for a protection visa. In summary, the applicant claimed to have become a Falun Gong practitioner in China in 1997 and to have practised for about two years, at which time the Chinese authorities advised that the group would be banned.  Amongst other things, the applicant claimed that he went to Beijing to be part of the groups to talk to the Chinese government about Falun Gong. He claimed that after the ban was imposed by the Chinese authorities he was forced to practice Falun Gong in private, but he was located, detained and subjected to what was described as “brain washing.”

The Tribunal

1. The applicant attended a hearing before the Tribunal on 10 January 2007. The Tribunal’s account of what occurred is set out in its decision record (reproduced at CB 62 to CB 68).

2. The Tribunal found that the applicant was not a witness of truth and that he was not a practitioner of Falun Gong. The basis for the Tribunal’s adverse view of the applicant’s credibility included the applicant’s inability at the hearing to name the relevant five Falun Gong exercises, notwithstanding his claims to having been a practitioner for 10 years, his lack of understanding of the Falun Gong emblem, and what was described as his only “rudimentary and generalised knowledge” of the text of Falun Gong. Further, the Tribunal noted the absence of evidence before it of any endorsement from Falun Gong practitioners in Australia.

3. The Tribunal found that the applicant’s evidence given at the hearing that he was able to leave China some years after he claimed to have been arrested and detained was inconsistent with the applicant’s claim that he was of adverse interest to the authorities, in view of country information before it as to the ability or otherwise of persons who were of interest to the authorities to be able to depart China. The Tribunal found further that, having lied to the Minister’s Department in relation to the obtaining of his visa to travel to Australia, the applicant’s overall credibility had been diminished substantially. In all, therefore, the Tribunal found that the applicant did not have a well-founded fear of persecution in a China for a Refugees Convention reason and it affirmed the decision the subject of the review.

Application to the Court

1. At the hearing before me today the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mr T Reilly of Counsel appeared for the first respondent. And I also have before me the first respondent’s written submissions prepared by Mr Reilly.

2. At the hearing the applicant, through the interpreter, read to the Court from a prepared statement. I have already made a number of remarks to the applicant about that statement, and indeed about the way that the grounds are stated in the amended application, and I incorporate those remarks formally into my judgment.

Ground One – Bias and application decided on assumptions

1. There are two stated grounds in the amended application. The first ground makes two complaints, both without any particularity. The first complaint is that the Tribunal was biased against the applicant; the second complaint is that the Tribunal decided the application on assumption. It is trite to say that it is well established that an allegation of bias is a very serious allegation, which must be supported by evidence (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, and VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102). I note also that as has been said that it is a very rare and exceptional case where bias could be discerned on the basis of the reasons set out in the decision record alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

2. Simply on what has been put before this Court, this complaint is not made out. The Tribunal’s reasons, as Mr Reilly submitted, were clearly stated and its findings were clear. On what is before the Court, I cannot discern bias on the part of the Tribunal.

3. Ground one also complains that the Tribunal failed to consider the applicant’s claims in accordance with s.91R of the Act. The question which the Tribunal was required to address is whether the applicant is a person to whom Australia owes protection obligations. The relevant statutory regime, as set out in the Act, mandates that a protection visa must be granted if the Tribunal is satisfied that the applicant meets the requirements set out in s.36(2) of the Act, and I say this with reference to s.65 of the Act. For the applicant's benefit, in effect the Tribunal must determine whether the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. The effect of ss.65 and 36(2) is that in the absence of the Tribunal reaching the requisite state of satisfaction as to whether protection obligations are owed, a refusal decision is mandated (NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

4. An applicant for a protection visa must show that the fear of persecution is for one of the reasons set out in Article 1A(2) of the Refugees Convention. There is a requirement that to satisfy Article 1A(2), as qualified by s.91R(1)(a) of the Act, the Convention reason or reasons on which an applicant relies must constitute at least the “essential and significant” reason or reasons for the persecution. Examples of instances of serious harm are set out in s.91R(2) of the Act.

5. In the case before the Court, the Tribunal plainly found against the applicant on the basis of the adverse view that it formed as to his credibility. In the absence of any endorsement from Falun Gong practitioners in Australia, and in light of independent country information available to it, the applicant’s ability to depart China unhindered was such as to indicate that he was not of adverse interest to the authorities, as he had claimed.

6. I can only agree with Mr Reilly’s submission that these findings are findings of fact and finding as to credibility. I also note Mr Reilly’s reference to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. The Tribunal’s findings were open to it on what was before it, and the Tribunal gave reasons.

7. The Tribunal’s consideration did not require some, if I can describe it, “fine consideration” as to whether the persecution claimed amounted to serious harm or otherwise. In my view, the Tribunal’s analysis was such that such additional consideration was not engaged. The applicant’s claim to fear persecution was rejected due to the lack of credibility of the claims. In relation to the complaint concerning s.91R of the Act, in the circumstances before it and as presented to the Court today, the Tribunal was not required to turn its mind to conduct in Australia for the purposes of s.91R(3) of the Act.

8. I note further, and agree with, Mr Reilly's submissions, that beyond what I have said, the absence of any particulars in the applicant’s application, and indeed absence of any particulars arising from what he read to the Court today, makes this complaint meaningless. In all, neither this complaint nor this ground succeeds.

Ground Two – Failure to put to the applicant certain information

1. Ground two in the amended application complains that the Tribunal failed to put to the applicant information which would be the reason, or part of the reason, for affirming the decision under review. The amended application itself does not particularise this complaint, although the applicant's statement to the Court today appeared to make such an attempt, and I will deal with that in a moment.

2. Section 424A(1) of the Act obliges the Tribunal to put in writing, and I note here the majority of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, to an applicant information which is the reason, or part of the reason, for affirming the decision that is under review. In the matter of SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; [2007] FCA 26 (“SZBYR”) (at [15]-[22]), the High Court gave guidance as to what constitutes “information” for the purposes of s.424A of the Act.

3. As I have already said, the Tribunal’s reasons for affirming the decision in the current case were its adverse view of the applicant’s credibility and the other matters to which I have already repeatedly referred. Neither the Tribunal’s adverse views of the applicant’s credibility, nor its reasoning, is information for the purposes of s.424A of the Act, in light of the explanation and guidance offered by the High Court in SZBYR. In any event, I note further that what the applicant himself said at the hearing, and the independent country information on which the Tribunal relied, both fall within the exceptions contained in s.424A(3) of the Act from the obligations set out in s.424A(1) of the Act.

4. Bearing in mind what was said by the High Court in SZBYR to be the “limited scope” of s.424A (see in particular [22]), and the meaning of the word “reason” in s.424A (at [17]), I cannot see error in the Tribunal’s decision in this regard.

Allegations raised at the hearing

1. As noted above, before the Court today, the applicant made a number of statements which were contained in what the applicant caused to be read to the Court through the interpreter. The applicant repeated his complaint that the Tribunal was biased, but put nothing further before the Court. For the reasons that I have already stated, this complaint does not assist the applicant. The applicant also asserted that the Tribunal did not consider his case according to the Act. To the extent that the applicant asserted in his statement that the Tribunal failed to comply with s.91R of the Act, I have already dealt with that matter.

2. I should just note that the statement which was read to the Court appears to confuse the Minister’s Department and the Tribunal’s decision, in that what was put to the Court was that the Department of Immigration based its decision on assumption and not evidence. In any event, to the extent that the applicant complaints that the Tribunal based its decision on assumptions and not evidence, the Tribunal plainly based its decision on the material and the evidence that was either put before it by the applicant, or independent country information to which it was entitled to have regard.

3. I repeat what I said earlier that what the Act requires is that the Tribunal reach a requisite level of satisfaction that the applicant in effect meets the definition of refugee. There is no requirement for the Tribunal to provide evidence that the applicant is not a refugee. I say that, given that the applicant claimed, again by way of his statement, that the Tribunal rejected his application without concrete evidence.

4. To the extent that the applicant also in his statement claimed that there was a breach of s.424A of the Act, the statement appeared to assert that the breach was that the Tribunal did not notify the applicant of the reasons as to why it was minded to refuse his application, and that therefore he was denied the opportunity to reply to this. This was in the context that the Tribunal did not put its reasons to the applicant in writing pursuant to s.424A of the Act and that therefore this was not a fair basis for the Tribunal to then proceed to make its decision.

5. I can only again agree with Mr Reilly that s.424A of the Act does not require the Tribunal to provide its reasons for decision prior to actually making its decision and to giving the applicant an opportunity to comment. The reliance on s.424A of the Act in this regard is plainly wrong.

6. In terms of fairness, this is a matter to which s.422B of the Act applies and relevant authority establishes that this makes what is set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]. In this regard, as I have said, I cannot see any failure on the part of the Tribunal in relation to its obligations pursuant to s.424A of the Act which is contained in Division 4 of Part 7 of the Act.

7. In relation to s.425 of the Act, the applicant was invited to a hearing, which he attended, and was given the opportunity of putting his evidence and his explanations before the Tribunal. I note that the Tribunal made reference, amongst other things, to country information, suggesting that the targets of the authorities in relation to Falun Gong practitioners were high profile practitioners, leaders and organisers, and noted with the applicant that if he was of real interest to the authorities he would have been kept in prison for a longer period of time, his family would have had difficulty in bailing him out, and it put to the applicant matters that were relevant in its analysis to his ability to depart China. In these circumstances, I cannot see that on the Tribunal’s account of the hearing, which is the only account which has been put before the Court, that it can be said that the Tribunal’s decision was made unfairly or that there was not a fair basis for its conclusions.

8. Also by way of his submission to the Court, the applicant made reference to the Tribunal having made its decision in light of irrelevant material, but again no particulars whatsoever were provided, and nor can I see in any event that such a complaint can be made out. On the material that is before the Court the Tribunal understood the applicant’s claims, dealt with them comprehensively at the hearing, and addressed these claims in its subsequent analysis. I cannot see that in its analysis that any irrelevant material formed a part of the Tribunal’s decision.

9. In all therefore I cannot discern jurisdictional error in the Tribunal’s decision, neither by what is stated in the amended application nor by what was said in the applicant’s statement, nor otherwise. The amended application is therefore dismissed.

10. I should also just note that the applicant sought before the Court an opportunity to put more material before the Tribunal, but as I explained to the applicant during the course of the hearing this Court was concerned with the issue of whether the Tribunal’s decision could be seen to be affected by jurisdictional error, and that the only way that the applicant’s matter could be remitted to the Tribunal was if such error could be discerned. For the reasons that I have already given, I cannot discern such error, and very clearly the applicant’s opportunity to have put more material before the Tribunal has now well and truly passed.

11. In my view it is appropriate that an order for costs be made and I cannot see any reason not to make such an order. I note that while I am not bound by the relevant costs schedule to the rules of this Court, the Minister could have sought according to that schedule an amount of $5,000. I note that the amount sought is well within that range. But I do take into account the various attendances at Court by solicitors, preparation of multiple copies of the Court book, the involvement of counsel, the presence of counsel here today at the hearing, and the preparation of written submissions, and I am satisfied that $4,500 is a reasonable amount in the circumstances.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  14 November 2007