SZKSM v Minister for Immigration
[2007] FMCA 1844
•30 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1844 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – refusal – information relied on by the Tribunal in reaching its decision fell within the exceptions to s.424A found in s.424A(3) – Tribunal does not need to have established a case against the applicant as a pre-condition to it affirming the decision of the delegate – the question is: is the Tribunal satisfied that the applicant meets the criteria for a protection visa? |
| Migration Act 1958, ss.36, 65, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZKSM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1743 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 October 2007 |
| Date of Last Submission: | 30 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1743 of 2007
| SZKSM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He alleges that while in China he was involved in promoting Falun Gong activities and that this subsequently led to him being questioned and warned by police. The applicant left China for Australia where, he alleges, he had not made contact with any other Falun Gong practitioners and had practised Falun Gong on only three or four occasions prior to suffering a slipped disc approximately three months after arriving in Australia.
The applicant claims to fear persecution in China because he is a Falun Gong practitioner.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
20 January 2007. 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.
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 Act1958 (“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 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 75 – 79).
In his application for a protection visa the applicant stated that:
a)he was born in Tianjin in 1962, completed 11 years of education and worked as a bus driver from 1981 to October 2006. He stated that he was married with one son and that his wife and son reside in China;
b)he had health problems because of his work as a driver and medicine he took did not help him;
c)in 1997 one of his co-workers recommended Falun Gong to him and told him that Falun Gong could help cure his pains and improve his health. The applicant learnt Falun Gong from the co-worker and in six months his health recovered and he practised Falun Gong often from that point;
d)he was called to the police station as a person who had been practising Falun Gong and the authorities made him write a statement promising not to practise it again. However, the applicant continued to practise Falun Gong because it benefited his health; and
e)he heard that many practitioners were sent to gaol and were ill-treated until they died. He was afraid these things would happen to him so he left China and travelled to Australia seeking refuge.
At the Tribunal hearing the applicant said that:
a)in April 1997 the police were involved in an incident in Tianjin and the government then started taking action against Falun Gong;
b)after this incident the government began to “look more closely” at Falun Gong activities in nearby areas. They did not allow people to gather and condemned Falun Gong activities in Tianjin;
c)in 1997 the practice of Falun Gong was “controlled” only in Tianjin, but by 1999 it was controlled nationwide, the authorities having declared the practice to be counter-revolutionary and banning it;
d)as he did not have much education, he did not know about Zhongnanhai and in his experience the events of Tianjin were more important. He understood that in Zhongnanhai the police just came up and beat up some demonstrators, but in Tianjin they arrested practitioners;
e)he confirmed that the events he referred to had occurred in 1997 because this is when the authorities first ordered the local authorities to monitor local activities of Falun Gong practitioners more closely; and
f)by paying a bribe he was able to obtain a passport which he used to travel to Europe, Sri Lanka, Malaysia and Singapore in 2006.
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 did not know anything about the main or central book about Falun Gong written by Li Hong Zhi;
b)the Tribunal found it highly implausible that the applicant would not know this text if he had been practising Falun Gong since the end of 1996 as he claimed and if he had been involved in promoting the benefits of Falun Gong;
c)the Tribunal did not accept the applicant’s explanation for this that he had only a limited education;
d)the Tribunal found that the applicant had limited knowledge of the principles and concepts underpinning the practice of Falun Gong and that this was inconsistent with his claim to have practised Falun Gong from late 1996 until his departure for Australia in 2006;
e)the Tribunal found that the applicant had limited knowledge about the basic set of Falun Gong exercises, noting that it did not accept that the reason the applicant was unable to do or describe some of the exercises was because he was feeling unwell at the hearing;
f)the Tribunal considered it highly adverse to the applicant’s claim in relation to his practice of Falun Gong and his involvement in promoting the benefits of Falun Gong that he demonstrated such limited knowledge of the five Falun Gong exercises;
g)the Tribunal did not accept that the applicant had practised Falun Gong on any occasions since his arrival in Australia on 23 November 2006;
h)the Tribunal found that the applicant’s limited knowledge of the incidents in Tianjin and in Beijing in 1999 which led to Falun Gong being banned by the authorities was inconsistent with his claim of having practised Falun Gong since 1996 and having promoted it to others; and
i)the Tribunal also did not accept that the applicant’s limited knowledge about the basic set of Falun Gong exercises could be explained because the standard the applicant had been following in China was different to the one which was being referred to by the Tribunal.
In relation to the finding concerning the applicant’s limited knowledge regarding the events in Tianjin and Beijing, the Tribunal reached that finding noting the following facts:
i)the applicant repeatedly referred to these incidents as having taken place in 1997;
ii)the applicant did not know the connection between the protests in Tianjin in April 1999 and the demonstrations in Zhongnanhai in Beijing that followed;.
iii)the applicant incorrectly referred to the Tiananmen student demonstrations as leading to the banning of Falun Gong; and
iv)the Tribunal found that it was not credible, if the applicant had come to the adverse attention of the authorities in China, that he would have returned to China, after travelling to Europe and Asia in 2006, finding it to be not credible that if the applicant had feared harm as a result of being a Falun Gong practitioner he would not have sought protection during those visits.
Given these findings, the Tribunal:
i)did not accept that the applicant was or ever had been a Falun Gong practitioner or had ever been involved in promoting the benefits of Falun Gong; and
ii)did not accept that the applicant had ever come to the adverse attention of the Chinese authorities for practising or promoting Falun Gong.
Proceedings in this Court
The grounds of the application to this Court may be summarised as follows:
a)the Tribunal failed to comply with its obligations under s.424A of the Act;
b)the Tribunal failed to understand the applicant’s claims and failed to consider relevant matters;
c)the Tribunal refused the applicant a protection visa without any proper grounds or proper investigation;
d)the applicant would be gaoled if he returned to China; and
e)the Tribunal’s decision was illogical.
At the hearing today the applicant raised two further matters which might suggest a breach of s.425 of the Act which arose out of what he alleges is his low level of education and the fact that he was unwell at the time of the hearing.
Breach of s.424A
The information which was the reason or part of the reason for affirming the delegate’s decision was information which the applicant provided to the Tribunal by way of his oral evidence at the Tribunal hearing, was his passport which he provided to the Tribunal or was independent country information to which the Tribunal had access. To the extent that the Tribunal’s decision depends on such information, no s.424A obligations attached because such information falls within the exceptions to the section’s operation found in s.424A(3).
In his application the applicant particularises this ground saying:
For example, information that the applicant departed China legally was used against him to support an inference that the authorities are not seeking him, which was significant in the Tribunal’s analysis.
In relation to that particular, it should be noted that no part of the Tribunal’s decision depended on the facility with which the applicant obtained his passport. The information derived from the passport and upon which the Tribunal relied was evidence of the applicant’s travels. As that information had been supplied by the applicant to the Tribunal with his passport, such information fell within the exception already referred to.
To the extent that the applicant complains of any conclusions drawn by the Tribunal from the information to which reference has been made, it is to be noted that conclusions and inferences from facts are not “information” as that term is understood by s.424A. Consequently, this asserted ground of review is not made out.
Tribunal failed to understand claims and consider relevant matters
At the outset it should be observed that the ground as pleaded in the application states that further particulars of it were to be provided, however, none have been.
As to the allegation that the Tribunal failed to understand the applicant’s claims, a consideration of the Tribunal’s decision record indicates that this cannot be made out. The applicant’s claim was to fear persecution by reason of his involvement and adherence to Falun Gong. The Tribunal’s decision records that it considered that claim and the evidence advanced by the applicant in support of it. The Tribunal clearly understood, investigated and considered the claim but failed to be satisfied that the applicant had met the criteria for a protection visa.
As to the allegation that the Tribunal failed to consider relevant matters, the failure to particularise this claim is fatal to this allegation. There is nothing which has been put before the Court on which a decision in favour of the applicant could be made based on this allegation. Consequently, this asserted ground of review is not made out.
Absence of proper grounds or proper investigation
The issue before the Tribunal on applications for review of decisions of the Minister’s delegate in relation to protection visas is whether it is satisfied that an applicant meets the criteria for the grant of a protection visa. If a Tribunal decides to affirm the decision of the delegate it does not need grounds to do so in the sense of having established a negative case against the applicant. The question always is: is the Tribunal satisfied that the applicant meets the criteria for the visa?
In order that the Tribunal can be satisfied, it is incumbent upon an applicant to put before the Tribunal information which will assist it to reach that level of satisfaction. In the absence of information or arguments leading it to that state of satisfaction, the Tribunal has no alternative but to affirm the decision of the delegate. So much is made clear by ss.65 and 36 of the Act.
As to the allegation the Tribunal did not conduct a proper investigation, this misunderstands the Tribunal’s role. Although the Tribunal does have power to undertake investigations, it is under no obligation to exercise that power. In some circumstances the failure to exercise the power may indicate an erroneous approach by the Tribunal. For instance, bias might be indicated by failure to conduct a simple inquiry which would clarify a vital issue. However, that is not the case here. This was a straightforward application for review and the absence of any inquiries by the Tribunal except in relation to the independent country information which it obtained is not indicative of jurisdictional error and this asserted ground of review is not made out.
Applicant could be gaoled upon return to China
This ground seeks a review of the merits of the applicant’s application, as did some of his oral submissions today. The Tribunal is empowered to make decisions on facts and to assess the merits of the applicant’s application. The Court’s role in judicial review proceedings is to determine whether the Tribunal has properly applied the law in the way it went about that review and the way it expressed its reasons. Even if the Court’s view of the facts and the merits of the case differed from that of the Tribunal, the Court cannot substitute its views for those of the Tribunal. Consequently, this ground does not disclose jurisdictional error on the part of the Tribunal.
Illogicality
A decision which is irrational, illogical and not based on findings or inferences of facts supported by logical grounds may be infected by jurisdictional error. However, that is not the case here. In this case the Tribunal’s decision record sets out the applicant’s claim, identifies the relevant law, discusses the evidence which was before the Tribunal, records findings of fact, identifies conclusions drawn and the decision which was made. The totality of these steps reveals a process characterised by logic and reason. No jurisdictional error has been demonstrated in respect of this asserted ground of review.
Breach of s.425
Today the applicant has made complaint about the Tribunal hearing and the questions which were put to him arising out of his poor education and the fact that at the hearing he was unwell. As to the applicant’s poor education, he says that the Tribunal asked him wrong questions. However, the applicant does not say that he was denied a real and meaningful opportunity to give evidence or present arguments on the issues arising out of the decision under review. The fact that the applicant disagrees with the questions which the Tribunal asked or thinks that different questions may have elicited different responses or led to a more favourable outcome does not demonstrate that the Tribunal erred.
In any event, there is no evidence before the Tribunal to suggest that such educational disadvantage as the applicant suffers led to the invitation he received to attend the hearing to be anything other than a real and meaningful invitation. For instance, there is no transcript of the Tribunal hearing before the Court which would suggest that there was any breach of s.425 that arose out of communication difficulties between the applicant and the Tribunal or any lack of comprehension on the applicant’s part. Moreover, the Tribunal was aware of the applicant’s lack of educational attainment, saying:
The Tribunal accepts that if the applicant had a limited education he may not be in a position to articulate concepts such as xinxing or explain the Falun at a sophisticated level. However, the Tribunal would expect the applicant to be able to explain in greater detail what was involved in the cultivation of xinxing, and what the purpose of the Falun was, and how it came to be in the abdomen, if he had practised Falun Gong for nearly 10 years as he claimed. (CB 84)
Consequently, this element of this asserted ground of review is not made out.
In relation to his claim of sickness at the hearing, the applicant said that the questions put to him by the Tribunal were not relevant, that he was baffled and that he did not understand. Again no transcript to substantiate these allegations has been put before the Court. Such evidence of the applicant’s illness at the Tribunal hearing as there is is to be found in the Tribunal’s decision record. At CB 77 the Tribunal says:
The applicant indicated to the Tribunal that he was having some difficulty with the first exercise because he felt unwell. The Tribunal suggested he should sit down and go through the movements of the exercises, even if he felt unwell doing them standing up.
In the second full paragraph on page 14 of its decision (CB 85) the Tribunal discusses the applicant having said that he felt unwell at the hearing and discusses the applicant’s claim to have felt unwell in the context of his inability to display knowledge of the various Falun Gong exercises. The Tribunal’s consideration of the applicant’s claim of ill health was limited to a question of the Falun Gong exercises and did not extend to the applicant’s ability to answer or understand questions because, as the quotation from CB 77 reveals, that was the context in which the applicant raised the issue with the Tribunal.
Although there may be a breach of s.425 because of circumstances unknown to a particular Tribunal, there is no evidence before the Court to support the assertion made today that the applicant was not well enough to understand the questions put to him or to be able to respond to those questions. As a result, I find that no breach of the Tribunal’s obligations under s.425 of the Act has been shown.
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-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 19 November 2007
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