SZKJH v Minister for Immigration
[2007] FMCA 1337
•25 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1337 |
| MIGRATION – Bias – need to show Tribunal acting dishonestly, arbitrarily or capriciously – activities in Australia were for the purposes of strengthening claims – section 91R – Court will not review findings of fact – credibility is a finding of fact. |
| Migration Act 1958 (Cth), ss.91R, 420, 424(1), 424A, 474 |
| SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Lee v Minister for Immigrationand Multicultural and Indigenous Affairs [2005] FCA 464 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 |
| Applicant: | SZKJH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 894 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 25 July 2007 |
| Date of last submission: | 25 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr B. O’Brien of DLA Phillips Fox |
ORDERS
The application, amended application, and further amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 894 of 2007
| SZKJH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 16 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 30 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 filed an amended application on 4 June 2007 and a further amended application on 21 June 2007. The Court invited the applicant to put oral or written submissions to the Court, but the applicant declined to do so.
The applicant was born on 1 November 1954 and claims to be from, and of, Chinese ethnicity (CB 13).
The applicant’s wife and daughter remain in China.
The applicant arrived in Australia on 19 September 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 3 October 2006. In this application he claimed that he was persecuted by the Chinese authorities because of his Falun Gong practices. The applicant claimed that he was detained in April 2000 and subsequently imprisoned and tortured for two years (CB 29).
This application was refused by a delegate of the first respondent on 14 October 2006 (CB 112-23).
On 14 November 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 125). The applicant attended a hearing before the Tribunal on 5 January 2007 and gave oral evidence (CB 166).
By decision signed on 30 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 171-4) (highlighting added):
The applicant claims that he is a national of the People’s Republic of China and the Tribunal accepts that this is the case. He has presented a passport issued by authorities of that country and had some level of familiarity with that country in his oral evidence which suggests a past association with the country.
The applicant fears harm if he returns to his country of nationality because of a claimed association with the Falun Gong movement. He has referred to particularly serious past harms and abuses which he fears could be repeated on his return.
The Tribunal does not believe that applicant has ever practiced Falun Gong nor that he has ever been associated with that movement in China. The applicant has provided substantially inconsistent evidence regarding his activities and experiences in China in a written statement provided to the Department and in his oral evidence to the Tribunal.
The inconsistencies go to the very basis of the claimed harms he claims to have suffered, the places he was when he was detained and protest actions which he took place in. Furthermore, he claimed in his written statement attendance at demonstrations which are not reported in the very detailed account of the Falun Dafa Information Centre regarding events from 11 April 1999 onwards. The applicant also claimed no knowledge of these events.
The applicant has also claimed that from the commencement of his involvement with Falun Gong it was necessary to practise in secret, however, information from the Falun Dafa Information Centre indicates that arrests of practitioners were first reported at the time of the April protests in Tianjin.
The applicant has also exhibited in his oral evidence only the most basic knowledge of Falun Gong practice. He could not demonstrate any of the associated exercises, although he did know they numbered five. He could not explain the basis of the beliefs associated with the movement and could only name the three basic principles with which the movement was associated.
In respect of each of these matters of serious concern about the reliability of his evidence, the applicant has asserted that his treatment in his country of nationality was such that he was scared when giving oral evidence and was unable to remember things because of substantial mistreatment.
There is no doubt that human rights abuses can lead to serious injury to individuals which could affect their ability to comprehend and recall events in their past. In this case, however, the applicant has now provided two very different accounts of those claimed experiences. He claimed attendance at protests in Tianjin in a written statement, however, claimed attendance at protests in Beijing in his oral evidence. There was no reference to Beijing protests in his written statement, despite his claim in oral evidence that those protests were the most important.
The changing nature of the claimed activities and experience of the applicant in his country of nationality, combined with his inability to recall fundamental details of Falun Gong practice leads the Tribunal to conclude that his is being untruthful in connection with this application. In the Tribunal’s view, the pattern of evidence and his explanations for the manifold inconsistencies suggests that he is merely making any statement he believes he will support his claims without regard to the truth of those statements. In the Tribunal’s view, were he being truthful about his past experiences he would have been able to provide a consistent account of those activities over time, even if injuries or his anxiety meant that he was unable to recall all the details at any particular time. His evidence is so inconsistent and lacking in detail that, in the Tribunal’s view, the only logical conclusion is that he is lying about his past experiences because he is aware that some people associated with the Falun Gong movement have been successful in seeking protection in Australia.
The Tribunal is also of the view that the activities the applicant has undertaken in Australia in association with Falun Gong practice have simply been done to try to support this claim. He claims to have attended only four meetings in total. If he were genuine in such activities it could be expected that he would have presented a truthful and consistent account of his past experiences. The Tribunal is not satisfied that those claimed activities in Australia were for any other purpose than strengthening the false claims to association with Falun Gong. In accordance with s.91R(3) the Tribunal must disregard those activities.
There is clearly material which could indicate a well-founded fear of harm amounting to persecution for some people who authorities associate with the Falun Gong movement in or returning to China. The evidence in this matter regarding the applicant, however, does not satisfy the Tribunal that there is a real chance of his suffering such harm in the foreseeable future.
Given these conclusions, the Tribunal is not satisfied that the applicant is a refugee within the meaning of Article IA of the Refugees Convention. As a result, it is not satisfied that he is a person owed protection obligations by Australia, which is prescribed as a criterion for the visa sought at subsection 36(2) of the Act. He must, therefore, be refused the grant of the visa sought under section 65 of the Act. The delegate’s decision to this effect should be affirmed.
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 had bias against me and failed to consider my application according to s.91R of the Migration Act 1958.
(2)The Tribunal refused my application based on some irrelevant independent information.
(3)The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation.
The applicant filed an amended application on 4 June 2007 setting out the following grounds:
(1)The Tribunal had bias against me and made a decision on my application based the officer’s assumption. My application was not considered according to s.91R of the Migration Act 1958.
(2)The Tribunal failed to refer to relevant independent information for the consideration of my application. The country information the Tribunal relied on was out of date.
(3)The Tribunal failed to provide sufficient evidence to refuse my application.
The applicant filed a further amended application on 21 June 2007 setting out one ground and five particulars:
(1)The decision of the Second Respondent (“the Tribunal”) dated 13 February 2007 (“the Decision”) received on 21 February 2007 was void for jurisdictional error.
Particulars
(a)The Tribunal was required under s.424A of the Migration Act 1958 (“the Act”) to give the Applicant particulars of information that the Tribunal considered would be part of the reason for affirming the decision under review, understand why that information was relevant, and invite the Applicant to comment upon it.
(b)Part of the reason for the decision was that the activities undertaken by the Applicant in Australia in association with Falun Gong practice were simply done to support his claim (“the information”);
(c)The information was required to be given to the Applicant under s.424A of the Act;
(d)The information was not given to the Applicant under s.424A of the Act;
(e)The Tribunal, in not giving the Applicant the information required to be given under s.424A of the Act, thereby did not offer the Applicant an opportunity to comment or contradict material evidence that was adverse to his interests.
Findings of the Court as to the grounds in the application
Ground one alleges bias and non compliance with s.91R of the Act. 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. That complaint is rejected. It is clear that the application was considered according to s.91R of the Act. At CB 173 the Tribunal found that it was not satisfied that the claimed activities of the applicant in Australia “were for any other purpose than strengthening the false claims to association with Falun Gong. In accordance with s.91R(3) the Tribunal must disregard those activities.” Section 91R(3) was applied correctly.
Section 91R states that the Act does not apply to “persecution” unless certain factors exist. The section then sets out instances of “serious harm”. The decision of the Tribunal was based on adverse findings of credibility and not on issues of “persecution” and “serious harm”. The Tribunal rejected the applicant’s claims to have suffered harm and set out its reasons for doing so. A finding as to credibility is a finding of fact. It is not the function of judicial review by a court to review the findings of fact by the Tribunal, 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”. In W148/00A vMinister for Immigration & Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at paragraph 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 per Brennan, Gaudron and McHugh JJ at 646:
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”.
A failure to comply with s.91R has not been established.
Ground one is rejected.
Ground two alleges that the Tribunal relied on irrelevant independent country information. As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
It has not been established that the country information relied on was irrelevant. The Tribunal had regard to various reports about the absence of information regarding the alleged Falun Gong appeal on 5 April 1999 and the protests held in Tianjin in April 1999. The reports were relevant to the issues before the Tribunal. Ground two is rejected.
Ground three complains that the decision is not rational or logical. The Court accepts the submission for the first respondent that the Tribunal
provided a rational basis for rejecting the applicant’s claims and relied upon information that was logically probative of the issues it was determining: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.
Ground three is rejected.
Findings as to the grounds in the amended application filed on 4 June 2007
Ground one repeats the allegations in ground one of the original applications and is rejected for the reasons already set out.
Ground two complains that the Tribunal failed to refer to relevant country information and relied on irrelevant country information. The Court refers to and repeats its reasons for rejecting ground two in the original application. It has not been shown that the Tribunal ignored relevant country information that was before it. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. Ground two is rejected.
Ground three alleges that the Tribunal failed to give reasons for refusing the application. The Court finds that the Tribunal set out its reasoning process in reaching its decision. The evidence relied on by the Tribunal was a matter for it. Ground three is rejected.
Findings as to the grounds in the further amended application filed on 21 June 2007
Ground one particular (a) sets out the requirements of s.424A and does not raise a ground of review.
Particulars (b) to (e) complain that the conclusion of the Tribunal that “the activities undertaken by the applicant in Australia in association with Falun Gong practise were simply done to support his claim” were not put to the applicant for comment in accordance with s.424A.
“‘Information’ [under s.424A] does not encompass the Tribunal’s subjective appraisals, thought processes or determinations”: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62, Supplementary reasons at [5]; and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
The Tribunal’s conclusion as to the reason for Falun Gong activities in Australia is not “information” within s.424A(1). Particulars (b) to (e) are 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, amended application, and further amended application are dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 9 August 2007
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