SZKRB v Minister for Immigration
[2007] FMCA 1808
•9 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1808 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proven – it is not necessary for the Tribunal to refer in its reasons to every piece of evidence and every contention made by an applicant – Tribunal does not need evidence contradictory of the applicant’s claim as a precondition to affirming the delegate’s decision. |
| Migration Act 1958, s.424A |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZKRB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1603 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 October 2007 |
| Date of Last Submission: | 9 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $3,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1603 of 2007
| SZKRB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the People’s Republic of China where, she claims, she was a Falun Gong practitioner. She alleges that while in China she went to Beijing to support other Falun Gong members in an appeal to the Chinese Government after the government started a crackdown on Falun Gong in 1999 and that this subsequently led to her being arrested, interrogated, severely beaten and brainwashed. The applicant left China for Australia where, she admits, she has not found Falun Gong practitioners and has not practised Falun Gong since coming to Australia, although she has been proposing to do so.
The applicant claims to fear persecution in China because she is an adherent of Falun Gong.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
6 December 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and she has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 58 – 61). Relevantly, they are in summary:
a)the applicant started to learn about Falun Gong from her mother, who had been a very active member of Falun Gong since 1995;
b)Falun Gong became the applicant’s belief;
c)when the Chinese Government started to crack down on Falun Gong in 1999 the applicant and her mother went to Beijing to support other members in an appeal to the government;
d)the applicant was detained by the police in 2000, severely beaten and not allowed to eat. She was detained on four or five occasions, but always released after two days and two nights;
e)the police interrogated the applicant but she refused to tell them anything;
f)from then on, the police would periodically attend the applicant’s home where she was “required to have brain washing in [sic] police several times”;
g)the applicant’s mother was also arrested and sentenced to one year in prison;
h)the applicant’s mother was tortured in prison and when she was released in 2001 the applicant could hardly recognise her; and
i)the applicant and her mother lost their freedom and were not able to enjoy a normal life in China.
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 did not accept that the applicant was a Falun Gong practitioner, noting that:
i)she was unable to demonstrate Falun Gong exercises at the Tribunal hearing;
ii)she generally lacked knowledge of Falun Gong; and
iii)she had not sought out Falun Gong practitioners nor practised Falun Gong since her arrival in Australia;
b)the Tribunal considered that the applicant’s claim that she and her mother were involved in Falun Gong was fabricated;
c)the Tribunal did not accept that the applicant’s mother was a very active member of Falun Gong and had taught the applicant Falun Gong. It also did not accept that Falun Gong became the applicant’s belief or that the applicant genuinely believes in Falun Gong;
d)the Tribunal was not satisfied that the authorities continued to visit the applicant and her mother at home to question them or that the applicant was required to have brainwashing; and
e)the Tribunal did not accept that if the applicant returned to China, she would practise Falun Gong or be persecuted by being prevented from practising her beliefs nor did it accept that were the applicant to return to China now or in the reasonably foreseeable future that there was a real chance she would be persecuted for reasons of her own or her mother’s real or perceived involvement in Falun Gong.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. The Tribunal had bias against me and made a decision on my application based on some hearsay independent information.
2. The Tribunal failed to notify me in writing of the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with section 424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.
3. The Tribunal failed to consider the claims of my application.
Dealing with each of these grounds in turn:
The Tribunal was biased and based its decision on some independent hearsay information
The applicant has not identified whether she claims that the Tribunal was actually biased or whether its behaviour was such that bias was apprehended by her.
As to the former, in order for there to be actual bias there must be a pre-existing state of mind which disables the decision-maker from undertaking, or renders him or her unwilling to undertake any, or any proper evaluation of the materials before him or her which are relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 per Gleeson CJ and Gummow J at 519 [35] and 531 to 532 [72] and Hayne J at 561 [176].
The only evidence before the Court in these proceedings which would touch upon the allegation of bias is the Tribunal's decision record. Nothing in that document suggests that the Tribunal undertook the review in question with a mind which was not open to persuasion.
In its recounting of the facts and evidence before it the Tribunal sets out the questions which it put to the applicant and the answers which it elicited. Those passages do not suggest that the Tribunal was seeking to confirm a pre-existing position or conceal that it had already reached a decision on the application. Rather, that portion of the Tribunal's decision demonstrates that it was interested to explore the facts, which is not demonstrative of a closed mind.
Moreover, an allegation of bias is a very serious one to make and has to be demonstrated by evidence of a convincing nature. There is an absence of such convincing evidence in the circumstances of this case. Consequently, I find that to the extent that the allegation of bias is one of actual bias, it is not proven.
If the applicant is alleging that the Tribunal's behaviour was such that a fair-minded lay observer might have reasonably apprehended that the Tribunal was not bringing an impartial and unprejudiced mind to the resolution of the issue which was before it, or whether the hypothetically fair-minded lay person, properly informed as to the nature of the proceedings might reach such a conclusion (Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425), such an allegation is not made out.
Again, the only evidence touching on such an allegation is what appears in the decision record. No transcript of the proceedings before the Tribunal, which might have supported such an allegation, has been put before the Court. For the reasons given in relation to the postulated allegation of actual bias, the decision record does not support an allegation of apprehended bias on the part of the Tribunal and I find that it is not proven.
As to that element of this ground which refers to hearsay independent information, this allegation is not particularised but could refer to information about the departure checks performed by Chinese authorities, referred to at CB 60.
To the extent that this is the case, two points are appropriate to be made. The first is that the Tribunal is entitled to inform itself as it sees fit: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. Secondly, this information was not part of the information on which the Tribunal's decision was based. The Tribunal's decision was based on its conclusion regarding the applicant's Falun Gong beliefs and practice, not how she fled China. This element of this ground not being particularised, there is no other basis upon which I can conclude that it is made out, and I find that it is not.
Breach of s.424A
This allegation was not particularised, but in any event, a reading of the Tribunal's decision reveals that that decision was based on conclusions drawn from the applicant's evidence at the Tribunal hearing. Information given by an applicant at a Tribunal hearing does not generate obligations under s.424A(1) because such information falls within the exception found in s.424A(3)(b).
To the extent that the applicant submits that conclusions drawn by the Tribunal amount to information which ought to have been notified to her pursuant to s.424A(1), that argument is disposed of by the High Court judgment in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 where Gleeson CJ, Gummow, Callanan, Heydon and Crennan JJ held that the word “information”, where used in s.424A, does not encompass the Tribunal's subjective appraisals, thought processes or determinations, referring with approval to the judgment of Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476 - 477.
Consequently, no jurisdictional error has been demonstrated in relation to this asserted ground of review.
The Tribunal failed to consider the applicant’s claims
The applicant's claim was to fear persecution because of her belief in and practice of Falun Gong and she made a number of subsidiary claims in support of that principal claim. It appears from the Tribunal's decision that all of these were considered. The applicant has not identified any other claims which the Tribunal may not have considered, this allegation in the amended application being unparticularised.
To the extent that the applicant complains that information which was before the Tribunal was not referred to in that part of its decision record under the heading, “Findings and Reasons”, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46].
No jurisdictional error has been demonstrated in respect of this asserted ground of review.
Failure to make decision in accordance with Act and Regulations
Nothing has been identified by the applicant which might fall under this ground other than the s.424A allegation already considered in these reasons. The Minister, a model litigant, submits that no other breaches have been identified by him. In the absence of a particularisation by the applicant of this allegation, it is not made out.
Application refused without evidence
This allegation misconceives the role of the Tribunal. The Tribunal does not need contradictory evidence in order to decide to affirm the underlying decision of the delegate. In an application for review by the Tribunal it is the applicant's role to put evidence and arguments before the Tribunal such that it can be satisfied that the applicant meets the criteria for the grant of a protection visa.
Although an applicant does not have an onus of proof as that concept is understood in the context of court proceedings, he or she nevertheless has to put information and arguments before the Tribunal sufficient that it can reach that level of satisfaction. The logical corollary of that is that the Tribunal does not need contradictory evidence in order to conclude that it is not satisfied that the criteria for the grant of a visa have not been met.
Consequently, this asserted ground of review is not made out.
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-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 2 November 2007
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