SZKRM v Minister for Immigration - [2007] FMCA 1818

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKRM v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1818

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of prejudice not proved – allegation of illogicality or unreasonableness not proved.

Migration Act 1958, ss.91R, 424A, 430, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749

Applicant:

SZKRM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1644 of 2007

Judgment of:

Cameron FM

Hearing date:

15 October 2007

Date of Last Submission:

15 October 2007

Delivered at:

Sydney

Delivered on:

6 November 2007

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr. M. P. Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1644 of 2007

SZKRM

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 (“PRC”) where, he claims, he was actively involved in the pro-democracy movement in 1989. He alleges that while in the PRC he was actively engaged in protests against the Chinese Communist Party. He alleged he was born into a landlord’s family and that this led to him being discriminated against. The applicant left the PRC for Australia where, he alleges, he practised Falun Gong and had close ties with a Falun Gong association until he got tied up with his work.
The applicant claims to fear persecution in China because of his political opinions, his membership of a particular social group, being descended from landlords, and because of his involvement with Falun Gong since arriving in Australia.
After his arrival in Australia, the applicant lodged an application for a protection visa using a false name based on the name appearing in an allegedly false passport. In a statement attached to that application the applicant disclosed a different name which he said was his true name. This application was refused by the Minister’s delegate on 25 June 1997. The applicant was notified of this decision by letter dated

13 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 has applied to this Court for judicial review of the Tribunal’s decision.
On 23 March 1998, the applicant lodged another application for a protection visa under a different name alleging that he was persecuted because of his alleged homosexuality. The Minister did not exercise his discretion to allow a further application by the applicant and thus this second application was invalid. Subsequently, the applicant withdrew his claim for protection on the basis of homosexuality.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 – 14 of the Tribunal’s decision (Court Book (“CB”) pages 132 - 142). Relevantly, they are in summary:
a)from childhood the applicant was classified as “a child of Heiwulei (black five kinds of persons)” because he was born into a landlord’s family. He was looked down upon by other classmates who were born into working class families;
b)the applicant “spent my childhood in fear, being discriminated and with inferiority, without joy, smile or warmth” (CB 97);
c)the applicant dropped out of school in 1983 because he was discriminated against. If something was stolen he would be blamed. He was unable to find a job;
d)the applicant had a “deep hatred for the communist dictatorship”;
e)he actively took part in the June 4 Movement in 1989 by participating in parades and demonstrations, helping with publications and by going on strike;
f)he collected donations for the students in the demonstration and distributed flyers containing information about government suppression of the students;
g)the applicant was never arrested and never went to a police station;
h)on 16 February 2007, in response to the Tribunal’s first s.424A letter, the applicant stated that he wanted “to make further refugee claims. In Australia he is actively engaged in protests against the Chinese Community Party. For this reason he has had close contacts with Falun Gong and has become a Falun Gong practitioner”. The applicant believed that the Chinese government was aware of his activities in Australia; and
i)he commenced public practice of Falun Gong in 2001 in Australia and protested outside the Chinese Consulate in 2001. He has not practised publicly since 2003.
Numerous inconsistencies emerged between the applicant’s:
a)protection visa application form;
b)his supporting statement; and
c)his evidence at the Tribunal hearing.
Those included details of:
a)the applicant’s name;
b)his siblings;
c)his date of birth;
d)his abandoned claim to be homosexual; and
e)his employment.

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 the applicant’s claim to being persecuted on the basis of his political opinion expressed through his alleged involvement with the June 4 Movement, noting that:
i)the applicant was unable to provide details to the Tribunal about the name of the student union involved, what the demonstrations were about or why he joined the demonstrations other than that he did not support the Communist Party;
ii)the applicant’s evidence at the hearing indicated minimal knowledge of and a lack of familiarity with the June 4 Movement;
b)the Tribunal was not satisfied that the applicant paraded or demonstrated or went on strike, noting that:
i)the applicant did not provide sufficient evidence to satisfy the Tribunal as to why he travelled from his home to demonstrate on behalf of students and why he was entrusted to collect money for them; and
ii)the applicant stated that he joined parades and went on strike, but his evidence was that he was not working at the time;
c)the Tribunal found that the applicant was not involved in distributing flyers or other publications, noting that:
i)the applicant had no idea who put the flyers out or had forgotten the name of the student organisation responsible for them; and
ii)the only information the applicant had about what was contained in those publications was that they contained information about government suppression of students;
d)the Tribunal accepted the applicant’s own evidence that he had never been arrested or detained or questioned by the police;
e)the Tribunal did not find that the applicant was discriminated against or unable to find work as this was inconsistent with the applicant’s own evidence that he worked in machinery maintenance for three years from 1990 until 1993;
f)the Tribunal found that the applicant was not investigated as he was not involved in the June 4 pro-democracy movement;
g)the Tribunal was not satisfied that the applicant’s family suffered persecution on the basis of the applicant’s involvement with the June 4 Movement, noting that:
i)it did not accept that he was involved with the movement at all; and
ii)the applicant’s family continued to live in the same house until 1996;
h)the Tribunal found that the applicant provided false information in order to be granted a protection visa;
i)the Tribunal did not accept that the applicant was discriminated against on the basis of his membership of a particular social group, that being a child of landlords, because independent country information indicated that at least 25 years ago the Chinese government had terminated discrimination against the descendants of landlords;
j)the Tribunal found that the applicant’s departure from the PRC under a false name and passport was not an expression of political opinion, noting that although his travel documents took seven weeks to be approved, he was nevertheless issued with a travel document;
k)the Tribunal did not accept that the applicant was a genuine Falun Gong practitioner and practised Falun Gong in Australia, noting that:
i)the Tribunal did not accept the applicant as a witness of truth;
ii)the applicant’s evidence in support of his claim to be a Falun Gong practitioner was unpersuasive;
iii)
the applicant made this claim for the first time on

16 February 2007 even though he lodged his application for review nearly a month earlier on 17 January 2007 and claimed to have commenced Falun Gong in 2001; and
iv)the applicant presented no evidence to the Tribunal that he had been involved in any protests against the Chinese government since his involvement in protests outside the Chinese Consulate in 2001. Therefore, the Tribunal found that the applicant was no longer actively involved in protests against the Chinese government;
l)the Tribunal did not accept that the applicant was actively engaged in Falun Gong activities outside the Chinese Consulate nor did it accept that he distributed material of behalf of the Falun Gong Association or Falun Dafa Association in 2001 or at all;
m)the Tribunal did not accept the applicant’s evidence that he was unable to practise Falun Gong as he was tied up at work, noting that the applicant’s own evidence was that he only worked three hours a day;
n)the Tribunal found that the applicant gave false information to the Tribunal about his protests against the Chinese government in order to enhance his claim for refugee status, noting that it did not accept that there was a link between protesting against the Chinese Communist Party and the applicant’s claimed close contacts with Falun Gong; and
o)the Tribunal found that even if it were to accept, which it did not, that the applicant had been practising Falun Gong in Australia, given the applicant’s lack of credibility and the unreliability of his evidence, it was of the view that the applicant’s conduct in Australia had been for the purposes of strengthening his case. As such, it had to be disregarded pursuant to s.91R(3) of the Act.

Proceedings in this Court

The grounds raised by the application and the applicant’s affidavit sworn 22 May 2007 can be summarised as follows:
a)the Tribunal incorrectly applied s.91R(3) of the Act;
b)the Tribunal’s finding that the applicant engaged in Falun Gong activities for the purpose of strengthening his refugee claims was affected by prejudice; and
c)the Tribunal’s reasoning that the applicant’s claim to practise Falun Gong was incredible because he had not mentioned this practice until February 2007 was illogical and unreasonable.

Tribunal incorrectly applied s.91R(3) of the Act

The principal allegation under this head is that the Tribunal misapplied s.91R(3). Two related allegations are that:
a)the Tribunal's finding that the applicant engaged in Falun Gong activities for the purpose of strengthening his refugee claim was affected by prejudice; and
b)the Tribunal's reasoning concerning why the applicant did not mention his Falun Gong practice until February 2007 was illogical and unreasonable.
As to the principal claim, the Tribunal correctly paraphrased the subsection at page 21 of its decision and in its application of the subsection the Tribunal gave proper consideration to the applicant's alleged conduct in Australia concerning his practice of Falun Gong. It concluded that, given its findings regarding the applicant's lack of credibility and the unreliability of its evidence, it was not satisfied that his Falun Gong practice in Australia was undertaken otherwise than for the purposes of strengthening his claim to be a refugee. Given the Tribunal's views of the applicant's credibility, no error is disclosed by the fact that it was not satisfied that he had undertaken any Falun Gong practice in Australia otherwise than for the purpose of strengthening his refugee claim.
As to the claim of prejudice, this is not particularised but would appear to be a claim of actual bias on the part of the Tribunal. In order to make out such a serious claim, it is necessary for the applicant to demonstrate that the Tribunal had a state of mind so committed to a conclusion already formed as to being incapable of alteration, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
To the extent that the applicant claims that the Tribunal did not make a bona fide attempt to exercise the power of review reposed in it, the Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43]‑[46]:
·an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;
·the allegation is not to be lightly made and must be clearly alleged and proved;
·the presence or absence of honesty will often be crucial;
·the circumstances in which the Court will find an administrative decision-maker has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review;
·mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision‑making. It is a large step to jump from a decision involving errors of fact and law to finding that the decision‑maker did not undertake its task in a way which involves personal criticism; and
·errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
In this case the only evidence upon which the applicant could seek to make out a finding of want of good faith on the Tribunal's part is its own decision. A consideration of that decision reveals a conscientiously undertaken review process. The applicant was given more than one opportunity to provide comment or information to the Tribunal, including what appears from the decision record as a detailed, if searching, hearing. Nothing in the decision records suggest that the Tribunal did not attempt a bona fide review or that it approached the review with a mind closed to persuasion.
At the hearing the applicant submitted that the prejudice demonstrated by the Tribunal was that it did not permit him to explain why his Falun Gong claim had been lodged when it was. The question of when the applicant raised the matter of his Falun Gong practice arose out of the Tribunal's analysis of the material before it. It was not, judging from the Tribunal's decision record, a matter which was the subject of discussion at all during the course of the Tribunal hearing and it is to be noted that no transcript of the Tribunal hearing was tendered in order to demonstrate that it had been an issue there. Rather, it was a conclusion drawn by the Tribunal at a subsequent date. Consequently, this element of this ground is not made out.
The assertion that “The Tribunal's reasoning that the applicant had not mentioned his Falun Gong practice until February 2007 and therefore such claims were incredible is illogical and unreasonable” is based on the following assertion:
The applicant's Falun Gong practice started after his initial protection visa application and therefore he did not have an opportunity to make such a claim until he became aware that he could still apply for RRT review.
The point which the Tribunal made at page 21 of its decision was:
Yet the applicant waited for almost one month after the lodgement of his application for review before making his claim that he was a Falun Gong practitioner (CB 149).
Earlier, at CB 149, the Tribunal had said this:
The applicant was represented at the time of the lodgement of the application for review and yet no claims relating to Falun Gong were made at that time and were not made until 6 February 2007.
Consequently, this element of this asserted ground of review is misconceived. The question which concerned the Tribunal was not why Falun Gong had not been raised in an earlier protection visa application but, rather, why it had not been raised in the application for review to the Tribunal. As a result, no illogicality or unreasonableness is demonstrated by the Tribunal's observation complained of.
In any event, the asserted ground of review relying on an error relating to s.91R(3) overlooks the Tribunal's finding that it did not accept that the applicant had been practising Falun Gong, privately or publicly, in Australia. That is to say, the Tribunal rejected that part of the applicant's claim to fear persecution which was based upon his alleged practice of Falun Gong in Australia. It is clear that the reference to s.91R(3) was included for the sake of completeness or out of an abundance of caution. It was not a necessary part of the Tribunal's decision, given its finding that the applicant was not, in fact, a Falun Gong practitioner in Australia. Thus, even had its approach to the section been demonstrated to have been erroneous, it would have had no impact on the general absence of reviewable error in the Tribunal's decision.

Breach of s.424A

The alleged breach of s.424A is unparticularised. Moreover, it overlooks the s.424A(1) letters dated 2 February 2007 (CB 99-100) and 23 March 2007 (117-120) which the Tribunal sent to the applicant. It also ignores the evidence given by the applicant at the Tribunal hearing and the independent country information which formed important bases of the Tribunal's decision and to which no s.424A(1) obligations attached.
In the circumstances, and in the absence of any particularisation of this allegation, this asserted ground of review is not made out.

The Tribunal ignored evidence

The applicant submitted that the Tribunal had ignored evidence before it in respect of the genuineness of his Falun Gong practices. A consideration of the applicant's evidence to the Tribunal found at

CB 138-139 disposes of this ground. It is apparent that the Tribunal sought from the applicant what evidence he could give concerning his alleged Falun Gong practice in Australia. If the applicant says that he submitted evidence additional to that which is set out in the Tribunal's decision record, he has not identified it. If the applicant's concern is that evidence he gave to the Tribunal was not mentioned in that part of the Tribunal's decision record under the heading, “Findings and Reasons”, then this ground is misconceived. 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 and s.430 of the Act does not require the Tribunal to refer to evidence which is not the basis of its findings of fact.

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: 6 November 2007