SZKMK v Minister for Immigration
[2007] FMCA 1248
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1248 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. |
| Migration Act 1958, ss.91R, 91X, 424A, 425, 425A, 430 |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | SZKMK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1156 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 31 July 2007 |
| Date of Last Submission: | 31 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1156 of 2007
| SZKMK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 10 June 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 19 February 2007 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 16 December 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a 33 year old man who was married in 1994. The applicant says that he has a wife and son in China. He was educated for 12 years, until 1992. He gives a single address in Fujian province from 1986 to 2006. The applicant says he was a self-employed businessman in 2003 and 2004. (Court Book (“CB”) page 77).
The applicant claims to fear persecution in China because of his practice of Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-6 of the Tribunal’s decision (CB 77-79). Relevantly, they are in summary:
a)the applicant began to practise Falun Gong through a friend and became a formal member of Falun Gong one month later in August 2004. He spent a lot of time promoting Falun Gong to people he knew well and he organised meetings and activities; and
b)in June 2006, police took the applicant and his friend to a police station for questioning. The applicant and his friend were kept for 24 hours and “suffered illegal mental and physical torture from the police”. They were also required to attend “brain washing classes” from time to time. The applicant decided to leave China for Australia.
At the Tribunal hearing the applicant said that in his 457 visa, where it was indicated that the applicant had been sponsored to come to Australia as a metal fabricator to work for an approved business sponsor, his employment history with his employer in China had been exaggerated in order for him to get a job in Australia. He said that he had worked for the Australian sponsor company for a week but was sacked following which he was returning to China via Singapore when he was told that the police were looking for him so he turned around and returned to Australia on 31 August 2006.
At the Tribunal hearing the applicant said he was not involved in Falun Gong activities in Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although the applicant said that he returned to Australia to seek protection he waited approximately three months following his return to Australia to do so and was unable to provide a satisfactory explanation for this delay;
b)the Tribunal found the applicant unable to give a convincing account of his activities in connection with Falun Gong in China. The applicant was unable to explain the values of Falun Gong and was unable to name one of the five exercises practised by Falun Gong adherents. Moreover, the applicant had not been involved with Falun Gong since his arrival in Sydney on 31 August 2006; and
c)the Tribunal also found the applicant unconvincing in describing his detention and interrogation by police.
In essence the Tribunal found:
The Tribunal finds that the applicant was never involved in Falun Gong in China to the extent that he was a Falun Gong practitioner, much less an activist, and therefore does not accept that he was questioned, detained and mistreated in China for this reason. It follows that it does not accept the applicant’s claim that he was told on 31 August 2006 in Singapore that he was still being looked for by the Chinese police. (CB 81).
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal was biased against the applicant;
b)the Tribunal wrongly believed that the applicant had not suffered Convention-based persecution in the past; and
c)the Tribunal breached s.424A of the Act.
In his submissions today the applicant has raised additional issues, namely:
a)the Tribunal misconceived his claims;
b)it did not follow procedures properly; and
c)it did not provide reasons or evidence for its reasons.
In the affidavit filed with his application to commence these proceedings the applicant also says that the Tribunal breached s.91R of the Act.
Dealing with each of these grounds in turn:
The Tribunal was biased against the applicant
In his submissions today the applicant said that from the beginning of the Tribunal hearing the Tribunal demonstrated that it did not believe that he was a Falun Gong member. The applicant says that the Tribunal's pre-judgment was demonstrated by the questions which it posed to him. The applicant has not identified whether he says that the Tribunal was actually biased or whether he apprehended bias from its conduct.
To the extent that he may be alleging actual bias through pre-judgment the applicant needs to demonstrate that the Tribunal was so committed to a conclusion already formed that its view was incapable of alteration whatever the evidence or arguments which might have been presented. In order to make out such a serious allegation, it would be necessary for the applicant to put convincing evidence on the subject before this Court. The only evidence from which such a conclusion might be drawn is the Tribunal's decision record which, at CB 77 to 79, sets out the course of the Tribunal hearing. I am not satisfied that the decision record indicates any prejudgment on the part of the Tribunal and although it does set out a record of the Tribunal's questioning of the applicant regarding his 457 visa and the circumstances in which he came to be working in Australia originally, it is also clear that the Tribunal was interested and asked questions about the applicant's Falun Gong history in China, together with the persecution he claims he received at the hands of the Chinese police.
As to apprehended bias, the applicant needs to demonstrate that the Tribunal's conduct was such that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the matter before it. This too is a serious allegation and persuasive evidence must be adduced in order that it might be proved. Again, the only relevant evidence is what is contained in the Tribunal's decision record and I cannot find, based on that document, that the Tribunal conducted itself in such a way as to give a reasonable apprehension of bias through pre-judgment. In any event, the mere fact that the Tribunal asked questions on a particular matter and may have indicated a preconceived opinion as a result of such questions would not constitute bias because it does not follow that the evidence adduced by the applicant would be disregarded, as discussed by Hayne J in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
For these reasons I find that the allegation of bias is not made out.
The Tribunal wrongly believed that the applicant had not suffered Convention-based persecution in the past
In relation to the second ground, the Convention-based persecution of which the applicant claims to have suffered was illegal mental and physical torture from the police and the subsequent requirement that he attend brainwashing classes. The Tribunal considered these claims but found them to be unconvincing. The applicant has not articulated the basis on which he says the Tribunal's belief was wrong and it appears that this ground is really a challenge to the Tribunal's finding of fact, given that no challenge has been expressed in terms of jurisdictional error. The Tribunal's decision to not accept that the applicant had been questioned, detained or mistreated was one which was open to it on the evidence and as such was a finding of fact within jurisdiction. In judicial review proceedings such as these it is not open to the Court to substitute its own view of the facts for that of the Tribunal's and thus even if the Court were of the view that the Tribunal's conclusion that the applicant had not suffered any Convention-based persecution in the past was wrong, it could not replace the Tribunal's finding with its own view.
The Tribunal breached s.424A of the Act
In the third ground, the applicant alleges that the Tribunal breached obligations under s.424A of the Act. The information which was the reason or part of the reason for the Tribunal's affirmation of the delegate's decision was information provided to the Tribunal by the applicant for the purposes of the review. As the information in question was derived from the evidence given by the applicant at the Tribunal hearing it falls within the exception found in s.424A(3)(b) and no s.424A(1) notice was required. Consequently this ground does not disclose jurisdictional error on the part of the Tribunal.
Tribunal misconceived the applicant’s claims
As to the applicant's allegation that the Tribunal misconceived the claims that he made, as has already been set out in these reasons, it is apparent that the Tribunal did understand the claim which was being made. In its decision record the Tribunal set out the matters contained in the statement which the applicant submitted with his protection visa application form, and in its recounting of the evidence at the Tribunal hearing the Tribunal sets out the questions and answers which passed between it and the applicant on the matters which the applicant had raised in that statement. For these reasons it cannot be concluded that the Tribunal misconceived the claims made by the applicant and consequently this asserted ground of review is not made out.
Tribunal did not follow procedures
Today the applicant also submitted that the Tribunal had not followed procedures although he did not particularise in what respects this was said to be so. The relevant procedures are set out in the Act and are found in div.4 of pt.7. For the reasons already given I am not of the view that there was a breach of any s.424A obligations and, as the applicant was invited to a hearing which he attended, and in which the issues arising in relation to the decision under review were canvassed, it is apparent that the Tribunal discharged its obligations under ss.425 and 425A.
As to the remaining sections of div.4 of pt.7 the applicant has not demonstrated that there has been any breach of their requirements.
Today the applicant further submitted that the Tribunal failed to provide reasons or evidence for its reasons. The relevant provision of the Act is s.430, which provides that when the Tribunal makes a decision on a review it must prepare a written statement that sets out the decision, the reasons for that decision, the findings on any material questions of fact, and refers to the evidence or any other material on which those findings of fact were based. On this occasion, in the Tribunal's decision record under the heading “Findings and Reasons”, the Tribunal sets out the evidence which was relevant to its decision and then, based on the evidence which is set out, the Tribunal sets out its findings on material facts. Based on those findings the Tribunal also gave reasons for its decision. As Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 demonstrates, the Tribunal is not required to do more. I do not find that the Tribunal failed to provide reasons or to set out the evidence on which its findings of fact giving rise to those reasons was based.
Breach of s.91R
As to s.91R, sub-ss.1 and 2 apply only in relation to persecution, but unless the Tribunal is satisfied that there is a real chance that persecution will occur if an applicant is returned to his or her country of nationality, sub-ss.1 and 2 of s.91R have no work to do. In this case the Tribunal was not of the view that the applicant would suffer persecution were he to return to China because it rejected his central claim that he was a Falun Gong practitioner, was questioned and mistreated by the Chinese authorities because of this, and is sought by them for reason of his Falun Gong activities.
Section 91R(3) is also not relevant to this application as the applicant engaged in no conduct in Australia which was required to be considered by the Tribunal to determine whether it fell within the scope of the subsection.
For these reasons no jurisdictional error on the part of the Tribunal is demonstrated for any reason based on s.91R of the Act.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 24 August 2007
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