SZKMU v Minister for Immigration
[2007] FMCA 1682
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1682 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – Tribunal not a contradictor of the applicant’s care – bias on the part of the Tribunal not proven – Tribunal not obliged to make findings on facts not material to its decision. |
| Migration Act 1958, div.4 of pt.7, ss.91X, 422B, 424A, 425, 430 |
| Muin v Refugee Review Tribunal (2002) 190 ALR 601 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Sun v Minister of Immigration & Ethnic Affairs (1997) 151 ALR 505 Re Refuge Review Tribunal; ex parte H [2001] HCA 28 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | SZKMU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1190 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 August 2007 |
| Date of Last Submission: | 1 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1190 of 2007
| SZKMU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 10 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 22 February 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 4 November 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 male born on 8 August 1963 in Hebei, China. He has completed eleven years of schooling. He lists his occupation as a farmer. The applicant’s spouse and child reside in China. (Court Book (“CB”) page 63).
The applicant claims to fear persecution in China because of his membership of Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-11 of the Tribunal’s decision (CB 63-70). Relevantly, they are in summary:
a)in 1998 a man from Beijing came to the applicant’s village promoting Falun Gong. The applicant found it to be beneficial to his health and became interested in Falun Gong. He started to learn from the man, who came every Sunday to teach Falun Gong;
b)in about August 1999 the applicant realised that Falun Gong had become illegal, but he continued to practise it due to its health benefits;
c)after August 1999, the man disappeared and the applicant and his fellow villagers elected their own group head, who led the villagers in their Falun Gong activities. They practised Falun Gong secretly and also secretly enlarged the group;
d)from time to time the police came to investigate the group and some of the members were arrested from time to time;
e)in June 2006, the police came to the village and arrested four members, including the applicant. They all suffered physical and mental torture from the police. They bribed the government officials to secure their release, which sent them broke;
f)in 1998, the applicant lost his job apparently as a result of driving Falun Gong practitioners to the government authority to appeal against the government preventing people from practising Falun Gong; and
g)the applicant’s family members were monitored by local police and as the applicant had lost his income, he was no longer able to provide his family with financial support.
At the hearing before the Tribunal the applicant made various inconsistent claims about his work history, what his involvement with Falun Gong was and when he was involved with Falun Gong.
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)the Tribunal found the applicant to not be a credible witness. The applicant’s oral evidence was inconsistent and frequently varied. The applicant gave several different dates for when he started to practise Falun Gong and when he was involved with other practitioners. The applicant also gave different explanations as to why he became involved with Falun Gong. The Tribunal found that the applicant was an evasive and unreliable witness;
b)the Tribunal rejected the applicant’s claim that he fears persecution because he use to drive Falun Gong practitioners to a government office in Beijing between 1994 and 1996 to enable them to complain, noting that there was no evidence that Falun Gong practitioners were persecuted before Falun Gong was declared illegal in 1999;
c)the Tribunal rejected, on the basis of independent country information, the applicant’s claim that he would have been targeted for driving Falun Gong practitioners prior to 1996 or after 1999 for his past activities and found that there is no real chance that the applicant will be persecuted because of his driving Falun Gong practitioners between 1994 and 1996 if he returned to China now or in the foreseeable future;
d)the Tribunal rejected the applicant’s claim to fear persecution because he was involved in obtaining books and material for Falun Gong practitioners, finding his claim on this issue to be vague;
e)the Tribunal did not accept that the applicant was a practitioner of Falun Gong or that he was involved in the study of Falun Gong, as he showed very little knowledge about the practice or the philosophy of Falun Gong. Furthermore, the applicant seemed to have shown no commitment to Falun Gong practice or philosophy since arriving in Australia;
f)because it rejected the applicant’s claims to be a Falun Gong practitioner, it rejected his related claims that he had been wanted by police and detained and mistreated in 2006 and that his family was supervised or monitored by police; and
g)the Tribunal found that the applicant was of no interest to the Chinese authorities as he was able to obtain his passport in 2005 and depart China lawfully.
Proceedings in this Court
The grounds of the application are pleaded as follows:
1.The Tribunal failed to consider my claims
2.The Tribunal rejected my claim as a Falun Gong practitioner without evidence.
3. The Tribunal did not provide evidence that there will be genuine fear of persecution if I were to return to China.
4. A copy of the decision letter is attached.
In his affidavit filed on 12 April 2007 the applicant stated that the Tribunal was biased against him.
In his submissions to the Court the applicant also asserted:
a)the Tribunal failed to comply with legal procedures as they applied to his case; and
b)the Tribunal failed to give proper reasons for its decision.
Dealing with each of these grounds in turn:
The Tribunal failed to consider my claims
The applicant’s claims as set out in his protection visa application form were different from those which he articulated at the Tribunal hearing, although they both turned on an allegation that the applicant was actively involved in Falun Gong in China before he came to Australia. The circumstances of that involvement differed between the visa application and the evidence at the Tribunal hearing. These claims are referred to above at [5] and [6].
The Tribunal’s decision record demonstrates that it went to some length to set out the claims made by the applicant. Commencing under the heading “Findings and Reasons” at page 13 of its decision the Tribunal sets out as the applicant’s main claim that he alleged he faced persecution because he used to drive Falun Gong practitioners to a government office in Beijing. It also sets out his secondary claim that he faced persecution because he was involved in obtaining Falun Gong books and materials for Falun Gong practitioners and his underlying claim that he himself was involved in the practice of Falun Gong. These were the essential elements of the applicant’s claims. They were identified and considered in some detail by the Tribunal at pages 13-16 of its decision.
Consequently, on the facts, this asserted ground of review is not made out.
The Tribunal rejected my claim as a Falun Gong practitioner without evidence
The evidence upon which the Tribunal reached its decision was the evidence which the applicant gave to it during the course of the Tribunal hearing, coupled with some independent country information. The Tribunal’s decision was based on the inadequacy, inconsistency or implausibility of the evidence adduced by the applicant when considered on its own and when considered in association with the independent country information to which the Tribunal had access. Thus it cannot be said that there was no evidentiary basis for the Tribunal’s findings.
But in any event, to say that the Tribunal rejected the applicant’s claim without evidence is to misunderstand the review process before the Tribunal. It was for the applicant to put material before the Tribunal such that it could reach a satisfaction that he met the criteria for a protection visa. In the context of his claim, this required the Tribunal to be satisfied that he had a well-founded fear of persecution by reason of his Falun Gong practice, activities and associations. This was the claim which the applicant made but which he failed to make out to the Tribunal’s satisfaction. Consequently, it was not a matter of the Tribunal requiring evidence to reject the claim that the applicant was a Falun Gong practitioner. Rather, it was for the applicant to satisfy the Tribunal that, indeed, he was a Falun Gong practitioner and associate. He failed to do this and there is no jurisdiction error demonstrated by this asserted ground of review.
The Tribunal did not provide evidence that there will be genuine fear of persecution if I were to return to China
The same considerations apply in relation to this ground as apply in relation to the second asserted ground of review. It was for the applicant to satisfy the Tribunal that he had a genuine fear of persecution were he to return to China but he failed to do this. The Tribunal was not in the position of a contradictor of the applicant’s claim and did not have any case to prove against him: Muin v Refugee Review Tribunal (2002) 190 ALR 601 per Gleeson CJ at 604 [7]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at 450 [57], Gleeson CJ agreeing at 438 [1]. It did not have to demonstrate that he did not have a genuine fear of persecution in order for it to affirm the decision of the delegate.
Consequently, this ground is not made out.
Bias
It is unclear whether the applicant alleges actual or apprehended bias on the part of the Tribunal. Whichever is the case, there is inadequate evidence to support an allegation on either of these bases. In Sun v Minister of Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562, North J said, in relation to actual bias:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour to the applicant.
No evidence has been adduced by the applicant to demonstrate that the Tribunal’s mind was made up against him. The only evidence which might touch on the issue is the Tribunal’s decision record which does not assist the applicant on this point. The way the Tribunal discusses in its decision record the claims made by the applicant and the evidence before it does not support an inference that its mind was closed to persuasion.
As to apprehended bias, in Re Refuge Review Tribunal; ex parte H [2001] HCA 28, Gleeson CJ, Gaudron and Gummow JJ, said at [27] – [28]:
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. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. (footnote omitted).
In these proceedings the applicant has not put before the Court a transcript of the Tribunal hearing which could be examined to determine whether the hypothetical fair-minded lay observer would conclude that the Tribunal might not have been bringing an impartial mind to the resolution of the review. The Tribunal’s decision record does not support an inference that this was the Tribunal’s frame of mind.
Allegations of bias are serious matters and must be proved with appropriately convincing evidence. In circumstances such as this, where there is no evidence of that nature before the Court, the allegation cannot be made out.
Failure to comply with procedures
In relation to the natural justice hearing rule, s.422B applies to these proceedings and provides that div.4 of pt.7 of the Act is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. The principal provisions of that division are ss.425 and 424A. As to the former, the applicant was invited to attend the Tribunal hearing to give evidence and present arguments and he did so. The Tribunal hearing canvassed the issues arising in relation to the decision under review and thus the Tribunal complied with its obligations under that section. As to the latter section, there was no occasion for a s.424A(1) notice to be sent to the applicant as the information relied upon by the Tribunal in reaching its conclusion to affirm the delegate’s decision was either information provided by the applicant at the Tribunal hearing or independent country information. Both of these categories of information fall within the exceptions found in s.424A(3) with the consequence that no notice under s.424A(1) was required.
As to the remaining sections of div.4 of pt.7, the applicant has not demonstrated that there has been any breach in respect of them.
Consequently, jurisdictional error is not demonstrated in respect of this asserted ground of review.
Failure to give proper reasons
Section 430(1) of the Act provides:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
In its decision the Tribunal set out the evidence upon which it relied to make its findings on material questions of fact. Those facts are set out in the Tribunal’s decision as the basis for its reasons for affirming the delegate’s decision. Although the applicant may have wished to be given more reasons than were contained in the Tribunal’s decision record, the Tribunal was under no obligation to do more than it did. It is not obliged to make findings on each and every matter of fact objectively material to the decision which it was required to make, as distinct from these which were subjectively material to the Tribunal, with the consequence that it is not required to make and then set out findings additional to those which it actually made: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 345-346 [67] and [68] per McHugh, Gummow and Hayne JJ. As their Honours said at 346 [69]:
It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal. It ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material. (footnote omitted)
The reasons given by the Tribunal were appropriate in the circumstances and this asserted ground of review discloses no jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 23 October 2007
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