SZKSR v Minister for Immigration
[2007] FMCA 2057
•12 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2057 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proved – Tribunal does not need to have gathered or formulated a negative case against the applicant before it may affirm the delegate’s decision – Tribunal required to identify the evidence grounding its findings on material questions of fact – it is not required to refer to evidence which is not the basis of such findings – Tribunal must act judicially and not on instinct or intuition. |
| Migration Act 1958, ss.36, 65, 91R, 424A, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 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 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Australian Broadcasting Tribunalv Bond (1990) 170 CLR 321 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 |
| First Applicant: | SZKSR |
| Second Applicant: | SZLCB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1756 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 November 2007 |
| Date of Last Submission: | 7 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2007 |
REPRESENTATION
The Applicants appeared in person.
| Counsel for the Respondents: | Mr. J. Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1756 of 2007
| SZKSR |
First Applicant
| SLCB |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of China. The first applicant claims to be a Falun Gong practitioner. She alleges that while in China she associated with Falun Gong practitioners and that this subsequently led to her being questioned and detained on more than one occasion. The first applicant also claims to have been detained because of her participation in land protests. The applicants left China for Australia where the first applicant alleges that she continues to be a Falun Gong practitioner.
The first applicant’s son is the second applicant whose application is as a member of the family unit. For convenience, the first applicant will be referred to as “the applicant” in these reasons.
The applicant claims to fear persecution in China because of her Falun Gong affiliation and because of her involvement in the land protests.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
14 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.
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 89 – 93).
Protection visa application form
The applicant submitted the following information in her protection visa application:
a)the applicant’s friend invited her along to witness and participate in a Falun Gong group meditation session in 2005;
b)when they reached the house where people were meeting the Public Security Bureau (“PSB”) stopped and searched the applicant and her friend;
c)the PSB found Falun Gong papers and documents on the applicant’s friend;
d)her friend was warned that he was participating in illegal activities and the PSB took the applicant and her friend to the Bureau station for questioning;
e)the applicant was accused of being an active member of Falun Gong and she was warned that she was participating in illegal activities;
f)after being detained for three hours, the applicant and her friend were released but her friend was taken into the PSB on several other occasions for questioning about his Falun Gong activities;
g)on one occasion the applicant was with her friend and they were both taken in for questioning; and
h)the applicant’s friend left the village and the applicant was warned that the PSB officers would now go after her because her friend had left.
Tribunal hearing
At the Tribunal hearing, the applicant made the following claims:
a)she had been involved in a protest in 2004 against a large company taking over certain land. She also participated in some campaigns in 2005;
b)she was afraid because of her protests;
c)in the beginning of 2005 the applicant was given a warning and detained for six hours in relation to the land protest. Five police officers took her away and detained her until dawn;
d)she was released when money was paid;
e)the applicant was detained in relation to the land protest on three occasions;
f)she was detained in a dark room and given no food or water;
g)the applicant practised Falun Gong regularly in China starting in 2005 and in Australia she practises it once a week;
h)she practises at Campsie every Wednesday and has protested against the mistreatment of Falun Gong members in China outside the Chinese embassy in Australia; and
i)the applicant was more concerned about her association with land protests than her association with Falun Gong members.
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 find the applicant to be a witness of credit, noting that:
i)she gave inconsistent evidence throughout the hearing;
ii)her evidence changed throughout the hearing;
iii)she gave no plausible explanation for these changes and inconsistencies;
b)the Tribunal did not accept that the applicant is or was a Falun Gong practitioner, noting that:
i)she was unable to say how many Falun Gong lectures there were in the main text;
ii)she was unable to demonstrate knowledge of the five exercises or any knowledge or understanding of the history, philosophy, principles and theory of Falun Gong;
c)because the Tribunal did not accept that the applicant was, or currently is, a Falun Gong practitioner, it did not accept that the applicant was interrogated for practising Falun Gong;
d)the Tribunal did not accept that the applicant was at any risk because of her perceived association with her friend the Falun Gong practitioner, noting that:
i)the applicant gave evidence that she had had no contact with him since April 2006;
ii)she stayed in her village after his departure and only left for Australia some four months later in August 2006,
iii)during the four month period when the applicant remained in her village, she was not questioned or interrogated;
iv)the applicant’s own evidence was that she was not in fear because of her association with her friend but because of her practice of Falun Gong and her participation in land protests; and
v)the applicant was able to leave China with valid travel and exit documents;
e)the Tribunal did not accept that the applicant was detained because of her involvement in land protests, noting that her oral evidence was inconsistent and changed during the course of the hearing;
f)the Tribunal was not satisfied that someone who had been detained by authorities on a number of occasions would be able to leave China on valid travel documents; and
g)the Tribunal did not accept that the applicant attended Falun Gong activities twice a week in Australia.
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the Tribunal was biased; and
b)the Tribunal breached s.424A of the Act.
At the hearing the applicant raised a number of additional issues which had not been pleaded in her amended application, which can be summarized and rephrased as:
a)the Tribunal did not provide enough reasons or evidence and “just dismissed my case”;
b)the Tribunal did not exercise correct procedure;
c)the Tribunal did not apply s.91R of the Act correctly;
d)the Tribunal did not consider my information and evidence;
e)the Tribunal did not give adequate reasons for rejecting my application;
f)the Tribunal did not evaluate the situation that if I returned to my home country I would be persecuted;
g)the Tribunal found that I was not a Falun Gong practitioner “without making reference to the evidence”;
h)the decision was based on conjecture;
i)the Tribunal did not consider whether I would be persecuted in China by reason of my practice of Falun Gong while in Australia; and
j)the Tribunal did not consider my reply to its s.424A letter and simply rejected my application.
Bias
Although the applicant submitted that the Tribunal had been prejudiced against her, she did not particularize this allegation. To the extent that the applicant alleges actual bias, it is necessary for her to demonstrate that the Tribunal had been so committed to a conclusion already formed as to the incapable of alteration, whatever evidence or arguments might have been presented to it: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. She has failed to do this. An allegation of actual bias, should that be what is being alleged here, is a serious allegation which must be clearly proved. The only evidence before the Court upon which a conclusion on this allegation can be made is what is contained in the Tribunal’s decision record. A review of that document does not disclose that the Tribunal approached its review with a closed mind. That being so, the allegation of actual bias, if that is what it is, is not made out.
If the applicant is alleging that the Tribunal gave the appearance of bias she must prove that a fair-minded lay observer who was 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 might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. No transcript of the hearing before the Tribunal has been placed before the Court. As a result, again, the only evidence upon which a conclusion on this issue can be based is what is contained in the Tribunal’s decision record. For the reasons given in relation to a claim of actual bias, the claim of apprehended bias, if that is what it is, is not made out.
Breach of s.424A
The reasons expressed by the Tribunal as the basis for its lack of satisfaction that the applicant was entitled to a protection visa were that she was not a witness of credit, she was not a Falun Gong practitioner, she had not been interrogated, she was at no risk in China because of her association with her Falun Gong-practising friend, she had not been detained because of her involvement in land protests and she was able to depart China with valid travel documents. With one exception, the information relied upon by the Tribunal in reaching its decision to affirm the decision of the delegate was information which the applicant had supplied at the Tribunal hearing. As a result, such information falls within the exception found in s.424A(3)(b) and no s.424A(1) obligations existed in relation to it.
As to the information concerning the applicant's ability to depart China, this was specifically raised by the Tribunal in its s.424A notice (CB 90). Consequently, the Tribunal discharged its s.424A obligations in relation to that information.
No jurisdictional error is disclosed by this asserted ground of review.
The Tribunal did not provide enough reasons or evidence and “just dismissed my case."
As to the question of evidence, the Tribunal does not need to have gathered or formulated a negative case against the applicant before it may affirm the decision of the delegate. Sections 65 and 36 of the Act make it clear that the delegate's decision must be affirmed unless the Tribunal is satisfied that the applicant is a person who meets the criteria for a protection visa. Given that, it is for the applicant to put before the Tribunal such evidence and arguments as will lead it to the state of satisfaction necessary to set aside or vary the delegate's decision.
In this case, the applicant failed to satisfy the Tribunal that she met the criteria for a protection visa and, as a consequence, it had no option but to affirm the delegate's decision.
As to reasons, s.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.
A consideration of the Tribunal's decision indicates that it referred to the evidence which was the basis of its decision that it was not satisfied that the applicant was a person to whom Australia has protection obligations. It was not required to do more than identify the evidence which grounded its findings on material questions of fact; it was not required to refer to evidence which was not the basis of such findings: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 345 – 346. Consequently, the Tribunal discharged its obligations under s.430 and no jurisdictional error is demonstrated in respect of this asserted ground of review.
Tribunal did not exercise correct procedure
This allegation was not particularised but, presumably, refers to those sections found in div.4, pt. 7 of the Act. Other than an alleged breach of s.424A, considered above, no breach of any other section has been suggested by the applicant.
In the absence of particularisation and any submissions on the point other than the bare assertion of the ground, no jurisdictional error is demonstrated in respect of this allegation.
Tribunal did not apply s.91R correctly
At CB 88, the Tribunal discussed, without error, the contents of s.91R of the Act.
As to s.91R(1) and (2) the Tribunal's decision reveals that it considered the evidence before it and reached the conclusion that the applicant was neither a witness of credit, a Falun Gong practitioner nor a person who had been detained by reason of land protests. In those circumstances, it found that she did not have a well-founded fear of persecution for a Convention reason were she to return to China. Consequently, there was no call for the Tribunal to consider whether s.91R(1) and (2) applied to her.
As to s.91R(3), the Tribunal had no need to consider that provision either because it did not accept that the applicant attended Falun Gong activities twice a week in Australia. Because it rejected her claims to Falun Gong practice in Australia, there was no need to address the question of whether such practice might give rise to a sur place claim and thus whether s.91R(3) might apply to it.
Tribunal did not consider my information and evidence
A review of the Tribunal's decision reveals that this asserted ground of review is not factually well-founded. The Tribunal's decision sets out the information provided by the applicant, both to the Minister's department and to the Tribunal. Under the heading “Findings and Reasons” the Tribunal discusses those elements of the evidence upon which it based its decision. Although the applicant might be disappointed that the case she put before the Tribunal was not accepted, ultimately, her claim failed because she was not credible. Such a credibility finding, in effect, subsumed all the evidence and arguments advanced by the applicant in relation to individual elements of her claim. Even so, and as already noted, in fact the Tribunal did give adequate consideration to the information she put before it. Consequently, the asserted ground of review is not made out.
Tribunal did not give adequate reasons for rejecting my application
This ground raises no issues which have not already been considered above at [18] – [21] and, for the reasons given there, it does not disclose jurisdictional error.
Tribunal did not evaluate the situation that if I returned to my home country I would be persecuted
Contrary to the applicant’s allegation, the Tribunal did evaluate the likelihood of the applicant being persecuted upon a return to China. The difficulty for the applicant in respect of this asserted ground of review is that the Tribunal did not believe her.
The Tribunal did not accept that the applicant had, or had been perceived to have had, any association with Falun Gong or had suffered harm in China as a result of being a Falun Gong practitioner, because of her association with Falun Gong or because of her association with her friend who was a Falun Gong practitioner. Consequently, it did not accept that were she to return to China there was a real chance that she would be perceived to be a Falun Gong practitioner, or that she would be persecuted for reasons of any real or imputed religious beliefs, membership of any particular social group for the purposes of the Convention, on the basis of her claimed involvement with the Falun Gong or on the basis of her association with her friend who practised Falun Gong.
As to the claim made by the applicant at the Tribunal hearing concerning land protests, the Tribunal found that the applicant had not been detained by authorities in China in relation to a land sale and therefore found that she was not in any danger from the authorities were she to return to China.
Consequently, the Tribunal’s decision demonstrates that it did consider the question of whether the applicant would be persecuted if she were to return to China but concluded that she would not be.
Tribunal found that I was not a Falun Gong practitioner “without making reference to the evidence”
For the reasons already expressed above at [18] – [21], this asserted ground of review is not made out.
Conjecture
The Tribunal must act judicially and must not act on instinct or intuition. As Deane J said in Australian Broadcasting Tribunalv Bond (1990) 170 CLR 321:
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of “proportionality” (cf. the C.C.S.U Case (81)). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision. (at 367)
If the Tribunal decision was irrational, illogical or not based on findings or inferences of facts supported by logical grounds then it will be affected by jurisdictional error: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at 20 [38]. Here, however, the bases of the Tribunal's decision which are summarised above at [10] show that the Tribunal's decision was not built on conjecture but was the result of a logical and reasoned consideration of the evidence before it. This asserted ground of review is not made out.
Tribunal did not consider the applicant’s Falun Gong practice in Australia
In her evidence to the Tribunal and by means of a statutory declaration made by a person claiming to be a person who practises Falun Gong in Australia with the applicant which was provided to the Tribunal after the hearing, the applicant asserted that she was a Falun Gong practitioner in this country. The Tribunal considered the applicant's oral evidence concerning her Falun Gong practice in Australia but as a result of her significant lack of knowledge regarding Falun Gong, which has already been discussed in these reasons, did not accept it.
The Tribunal placed little weight on the statutory declaration provided after the hearing because it was not on letterhead or from a Falun Gong association. As the Tribunal found the applicant was not a Falun Gong practitioner, it did not accept that she attended Falun Gong activities twice a week as the statutory declaration stated she did.
It is clear that the Tribunal did consider the applicant's claims to practise Falun Gong in Australia. If accepted, these allegations would then have led to a consideration of her claim to fear persecution in China by reason of that practice. But as the Tribunal did not accept that she did practise Falun Gong in Australia, there was no basis for it to take that next step and no error is disclosed because it did not do so.
Tribunal’s letter did not abide by the s.424A rule
When asked to clarify what she meant by this ground, the applicant was unable to give the Court a truly responsive answer. She suggested that before it arrived at its decision the Tribunal had not properly considered her situation and the evidence and did not give proper consideration to the persecution she said she feared would befall her should she return to China. To the extent that this is what this asserted ground of review is intended to raise, for the reasons already expressed at [18] to [21] above, it is not made out.
To the extent that this ground may refer to technical deficiencies in the s.424A notice, it is reproduced at CB 61 – 62 although the copy appearing there is one which was sent back to the Tribunal by the applicant under cover of her letter of 16 March 2007. The notice meets the criteria found in s.424A(1) in that it sets out information, explains why the information is relevant to the review and invites the applicant to comment on it.
The applicant has not demonstrated that the letter failed to comply with the requirements of s.424A and this ground does not disclose jurisdictional error on the part of the Tribunal.
Tribunal did not consider my reply to s.424A letter and simply rejected my application
The contents of the Tribunal's s.424A letter are reproduced at p.5 of its decision (CB 90), as are the relevant portions of the applicant's response. Two issues were relevantly raised by the s.424A notice; the first was the ability of the applicant to leave China without any difficulties and the second was that country information indicated that if a Falun Gong practitioner sought asylum they would obtain proof (of their Falun Gong practice) through the local Falun Gong centres and societies.
As to the first point, the relevant finding of the Tribunal was:
The applicant left China legally and on valid travel documents. The Tribunal does not accept the applicant’s claim that she is at risk from the police or authorities if she were to return to China. The applicant’s passport shows a valid exit stamp from China. If the applicant was on any list or was of any interest to the authorities she would not have been able to leave the country legally in 2006. Independent Country Information is clear that any person of interest to the authorities in PRC could not leave the country on a valid exit document. (CB 97)
That is to say, it was concerned with the applicant’s ability to leave China on a valid passport, not with how she got her passport.
The matters raised by the applicant in her response to the s.424A(1) notice only addressed how she obtained her passport, not how she left China. As the above quotation discloses, the Tribunal’s original concern with her travel documents did not form part of its reasons and, to the extent that the Tribunal considered the applicant's response, which is not discernable from its reasons, no error is disclosed in relation to it, as it was not relevant to the findings it made.
As to the second point, again the Tribunal’s original concern regarding the absence of proof from local Falun Gong centres and societies was not part of the reason for affirming the delegate’s decision. Consequently, that part of the applicant’s response to the s.424A(1) notice which dealt with this matter is irrelevant to the review application.
As to the applicant's assertion that the Tribunal “simply rejected” her application, as has been made clear earlier in these reasons, it cannot be made out. The Tribunal did not “simply reject” her application but gave proper and reasoned consideration to it and arrived at conclusions which were open to it on the evidence.
This asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 December 2007
0
9
1