SZKNW v Minister for Immigration
[2008] FMCA 146
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 146 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no failure to accord procedural fairness – requirements of s.424A of the Act not enlivened – adverse credibility finding – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.424A, 422B, Division 4 of Part 7 |
| SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 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 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 |
| Applicant: | SZKNW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1302 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 12 February 2008 |
| Date of Last Submission: | 12 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms M Mafessanti |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 23 April 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1302 of 2007
| SZKNW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application made under the Migration Act 1958 (Cth) (“the Act”) on 23 April 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 26 February 2007 and handed down on 20 March 2007, which affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.
The first respondent has put before the Court a bundle of relevant documents which I will refer to as the Court Book (“CB”). I also have before me the affidavit of the applicant made on 19 April 2007, and the first respondent’s written submissions which were filed in this matter in February 2008. From this material, the following can be discerned.
The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia in September 2006 and applied for a protection visa very soon thereafter. A copy of the protection visa application is reproduced in the Court Book at CB 1 to CB 33. I note in particular the applicant’s statement at CB 14 to CB 15. In October 2006, a delegate of the first respondent refused to grant a protection visa to the applicant, and the applicant applied to the Tribunal for review of that decision in November 2006. A copy of that application is in the Court Book at CB 44 to CB 47.
On 29 January 2007, the applicant appeared before the Tribunal to give evidence and to present arguments in support of his claims. Generally, these claims are that the applicant was a Falun Gong practitioner at the time prior to the banning of that practice and organisation in China in 1999. The applicant claimed that he had attend Falun Gong classes in his village prior to its being banned. The applicant, on a visit to Australia on a previous occasion one year earlier than the date of his making the application for a protection visa observed people practising Falun Gong in Sydney, and attended a demonstration outside the Chinese Embassy in Canberra. That is, he observed such a demonstration. The applicant claimed that he then resolved to return to Australia and to take up the practice of Falun Gong, which he then said he did a year later.
The applicant gave evidence before the Tribunal. The only account of what occurred at the hearing before the Tribunal is the Tribunal’s own account, which appears in its decision record and which is reproduced in the Court Book at CB 67 to CB 69. I note that the applicant gave evidence that he had been practising Falun Gong at the beginning of 1999 for six months. I note that at the Tribunal hearing the applicant was asked to provide the Tribunal with his level of knowledge about Falun Gong exercises. The applicant also claimed before the Tribunal that he had been captured by the authorities who did not believe that he had ceased practising Falun Gong, and had been held on various occasions by then. He claimed that this had happened every year from 2000. The applicant also made claims that he had practised Falun Gong in Australia in public since his arrival.
The Tribunal, in making its decision, had regard to independent information before it, and this is also referred to in the Tribunal’s decision record at CB 69 to CB 70. In all, the Tribunal did not accept that the applicant either was, or is, a genuine Falun Gong practitioner. This was based on his limited understanding of Falun Gong practice and beliefs, and that the applicant had, further, not provided independent evidence to corroborate his claim that he continued to practise Falun Gong, or took up the practice of Falun Gong in Australia.
Further, the Tribunal noted and found as relevant that the applicant did not seek protection in Australia on the occasion of his first coming to this country even though he claimed that he had regularly been detained and questioned by the authorities and instead he chose to return to China despite these claims. The Tribunal did not find the applicant’s explanation for this as being convincing.
In all, therefore, the Tribunal was not satisfied that the applicant was telling the truth about his claimed Falun Gong practices in China and did not accept that he practised Falun Gong in Australia. This then led to its concluding that the applicant was not a person entitled to protection in Australia.
The application to the Court asserts the following grounds on behalf of the applicant:
“1.The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of the S424A of the Act.
2.The RRT found that the applicant’s claims lacked credibility. It pointed out that the applicant was not aware of the main Falun Gong books, in particular, Zhuan Falun, and that the applicant could only provide a limited description of the location where he practiced Falun Gong. The Tribunal failed to put this information before the applicant and invite him to comment on it.”
At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms M Mafessanti appeared for the first respondent.
At the hearing today, the applicant stated that he was a man of limited education, that he was a Falun Gong practitioner and did believe in Falun Gong, and that it was his problems with English which caused him not to be able to speak out the name of the place where he practised Falun Gong in Australia. He also stated that he had been mistreated in China because of his Falun Gong practice, and further, that at the hearing before the Tribunal, the Tribunal did not ask him anything about his passport, and in particular his age on his passport which he claimed he had changed.
As I explained to the applicant during the course of the hearing, the role of this Court is focussed on seeking to discern whether the Tribunal’s decision was affected by a particular kind of legal mistake. That the question as to whether the applicant was owed protection in Australia, the issue as to whether he was a genuine Falun Gong practitioner, was one for the Tribunal and not for the Court.
In the application, the applicant asserts that the Tribunal failed to fulfil its procedural fairness obligations pursuant to s.424A of the Act. In the application this appears to be particularised with a complaint that the Tribunal failed to put to him, presumably in writing pursuant to s.424A(1) of the Act, that it had a view that his claims lacked credibility. The application states that while the Tribunal pointed out that the applicant was not aware of the main Falun Gong books and could only provide a limited description of where he practised Falun Gong in Australia, it failed to put this information to him, presumably in writing pursuant to s.424A(1) of the Act.
It is now well established that the Tribunal’s adverse thought processes do not constitute “information” for the purposes of s.424A of the Act. Section 424A obliges the Tribunal to put to an applicant information which would be a reason, or a part of the reason, for its decision. What constitutes “information” for the purposes of that section has now been elucidated by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) (at [18]), and it is clear that the Tribunal’s adverse findings in relation to an applicant’s evidence or claims, the Tribunal’s subjective thought processes, do not constitute “information” for the purposes of s.424A. I note the High Court cited with approval the majority in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, and other relevant authorities (Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, VAF, SZBYR at [17] and [18]).
In terms of its obligations pursuant to s.424A in this case, the Tribunal plainly relied on information provided by the applicant himself at the hearing and on independent country information, both of which came within the exceptions contained in s.424A(3) of the Act from the obligations set out in s.424A(1). I did not see the applicant’s broad complaint set out in his application to this Court as a complaint of a failure to afford procedural fairness at general law. As I have already said, I saw the applicant’s complaint of a denial of procedural fairness as being for reasons that he was not invited to comment pursuant to s.424A of the Act. But should it be said that the complaint was cast in broader terms, then I note that this is a matter to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (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 the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”), the High Court recently explained what may constitute a denial of procedural fairness pursuant to s.425 of the Act, which of course is also a part of Division 4 of Part 7 of the Act. Relevantly, the Tribunal is obliged to raise at the hearing, and to give the applicant a sufficient opportunity to address, what may turn out to be the determinative issues that arise in relation to the review (see in particular SZBEL at [44]). That is, of course, unless such issues were dispositive of the application as having arisen and been dealt with before the Minister’s delegate.
The only account of what occurred at the hearing that has been put before the Court is the Tribunal’s own account of what occurred. Despite the opportunity that was provided to the applicant at the first court date in this matter when he appeared before a Registrar of this Court whereby order three the applicant was able to file and serve any affidavit containing additional evidence relied upon, including transcript of the Tribunal hearing, the applicant has not done so.
I note that the Tribunal affirmed the delegate’s decision because it did not accept that the applicant is or was a Falun Gong practitioner. In part, this was based on his inability to explain relevant key concepts concerning Falun Gong beyond a very basic level and the finding of fact by the Tribunal of the applicant’s return to China after an earlier visit to Australia in circumstances where he claimed to have been mistreated for a lengthy period by Chinese authorities. From the Tribunal’s account of what occurred in the hearing, both these issues were raised by it at the hearing. At CB 69.2 the Tribunal records as follows:
“The Tribunal put to the applicant that it had some concerns that he could not explain some of the basic Falun Gong concepts and beliefs. The applicant stated that he is not able to express himself very well and he had not practised Falun Gong for some time before coming to Australia.”
At CB 68.4, the Tribunal records as follows:
“The Tribunal asked the applicant why he did not apply for protection during his first visit to Australia, if he feared persecution from the Chinese authorities and if he had been detained and questioned every year as he had claimed.”
I am satisfied, on what has been put before the Court today, that the Tribunal complied with its procedural fairness obligations in terms of a fair hearing in that it raised with the applicant the issues which were ultimately determinative of the review. I cannot see, either as stated, or in the more liberal view that I have taken of what perhaps is stated in the grounds of the application, that any complaints, either stated or inferred in the application, can be made out.
Because the applicant appeared unrepresented before me today, I also considered whether the complaint contained in his affidavit could provide some favourable outcome for him today. In echoing the complaint that he also emphasised before me today in his affidavit, the applicant asserts that the Tribunal found he was not a committed Falun Gong practitioner and that the Tribunal acted arbitrarily and capriciously in so finding.
It is well established that the Tribunal is not obliged to uncritically accept anything, or indeed everything, that an applicant claims or says to a Tribunal. It is not arbitrary or capricious for the Tribunal to critically examine an applicant’s claims and evidence. In fact, such an examination is consistent with its role and function in undertaking the review. Further, it is well established that findings of fact, including findings as to credibility, are a matter for the Tribunal acting as the “decision-maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (at [67], per McHugh J). The findings of the Tribunal in the matter before me were open to it on what was before it. In these circumstances, no jurisdictional error is demonstrated (see in particular Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).
Before the Court today, as noted earlier, the applicant made claims emphasising his Falun Gong beliefs and practice. I have already dealt with those claims made by the applicant on the basis that the examination of these claims is essentially a matter for the Tribunal. The applicant also claimed that he had a problem with English before the Tribunal and could not speak out the name of the place in Australia where he had practised Falun Gong.
The applicant’s claimed difficulties with English were raised before the Tribunal in that the applicant had stated to the Tribunal that he was not able to express himself very well, and the Tribunal noted the applicant’s statement that he could not read or write very well. In its findings and reasons the Tribunal revealed that it directly focused on the applicant’s claimed difficulty. At CB 71.7 the Tribunal said it accepted that the applicant is not educated and not able to read. Nonetheless, the Tribunal did not plainly reject the applicant’s claim because he was not able to read, but formed the view that given that he claimed to have regularly practised Falun Gong and to have had contact with other practitioners and to have watched Falun Gong DVDs, that he would have been able to describe his Falun Gong practice in some detail. Specifically in relation to the applicant’s failure to be able to name the location where he practised Falun Gong in Australia, the Tribunal said at CB 71.9:
“The Tribunal accepts that the applicant may not have been able to remember the name of the place as he does not speak English.”
Plainly the Tribunal did not reject the applicant’s claims on the basis of his failure to remember the name of the place where he claimed to have practised Falun Gong. In this regard it was the applicant’s inability to provide anything more than a limited description of the location of where he practised and how he practised and who he practised with that led it to, in part, reject his claims to have practised Falun Gong in Australia. Beyond these matters, the applicant has not put before the Court any evidence, nor indeed did I hear the applicant make any claim that he had any difficulties with the conduct of the hearing or any level of interpretation at the hearing with the Tribunal.
The applicant also claimed before the Court today that the Tribunal did not ask him anything about his passport at the hearing, and in particular, appeared to make some complaint that the Tribunal did not raise any issue, or that there was an issue, about his age on the passport. It is clear that the applicant had presented his passport to the Tribunal at the hearing and the Tribunal records this in its decision record. On any plain reading of the Tribunal’s decision record I cannot see that the applicant’s age as recorded on his passport played any role whatsoever in the Tribunal’s decision. There is nothing to show the relevance of this matter to the applicant’s claims or indeed to the ultimate disposition of those claims by the Tribunal.
In all, I can only see this issue as being irrelevant to the applicant’s claims and the Tribunal’s decision. Noting again of course if the applicant is implying that something further occurred in this regard at the hearing, he has not provided any evidence, for example, by way of transcript to support any such allegation.
In all, therefore, I cannot discern jurisdictional error in the Tribunal’s decision, either as it arises from what is stated in the application before the Court, on the applicant’s affidavit, or from what the applicant has said to the Court today, nor indeed on any other basis. For this reason the application made to the Court is dismissed.
It is appropriate that a costs order be made. The applicant’s stated lack of understanding is not a sufficient reason as would cause the Court not to make a costs order in all the circumstances. As to the amount that is sought, I note that the Minister could have sought an amount up to $5,000 pursuant to the relevant Schedule to the Rules of this Court and the amount sought is considerably less than that amount. In any event, I am satisfied that the amount sought is reasonable in all the circumstances, bearing in mind the work that has been done by the Minister’s legal representatives in responding to the application brought to this Court. I will therefore make the order in the terms sought by the Minister.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of FM Nicholls FM
Associate: A Douglas-Baker
Date: 14 February 2008
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