SZKSY & Anor v Minister for Immigration & Anor
[2007] FMCA 1504
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1504 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of China claiming fear of persecution as Falun Gong practitioners – “no evidence” – whether Tribunal fell into jurisdictional error by finding that no evidence had been provided to support the applicants’ claim that they commenced practising Falun Gong for health reasons – whether Tribunal failed to apply the provisions of Migration Act 1958 (Cth) s.91R(3) correctly – certiorari – mandamus. WORDS AND PHRASES – “Engaged in”. |
| Migration Act 1958 (Cth) ss.91R, 474, 476 |
| Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALJR 992 referred to. NAJT v Minister for Immigration and Multicultural Affairs (20050 147 FCR 51 referred to. SZGYT v Minister for Immigration & Anor [2007] FMCA 883 followed. NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 referred to. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to. |
First Applicant: Second Applicant: | SZKSY SZKSZ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1804 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 August 2007 |
| Date of Last Submission: | 23 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2007 |
REPRESENTATION
| Counsel for the Applicants: | Mr Zipser |
| Solicitors for the Applicant: | Nil (direct brief) |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the Second Respondent Refugee Review Tribunal signed on 23 April 2007 and handed down on 15 May 2007.
That there be an order in the nature of mandamus remitting the application of the Applicants to the Second Respondent for determination according to law.
That the First Respondent pay the Applicants’ costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1804 of 2007
| SZKSY |
First Applicant
| SZKSZ |
Second Applicant
AND
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants, who are citizens of China, ask the Court to set aside a decision of the Refugee Review Tribunal handed down on 15th May 2007, refusing them Protection visas. They had applied on the basis that they fear persecution as practitioners of Falun Gong. They also ask the Court to remit their application for review to the Tribunal for determination according to law.
Through their counsel, Mr Zipser, the Applicants rely on two grounds:
a)The Tribunal fell into jurisdictional error when it made its finding that the Applicants were not genuine Falun Gong practitioners. In particular, they claim that the Tribunal fell into error when it found that no evidence had been provided to support their claim that they practised Falun Gong for health reasons.
b)The Tribunal erred in its application of s.91R(3) of the Migration Act. Specifically, the Tribunal found that s.91R(3) applied because the Applicants commenced the practice of Falun Gong in order to strengthen their claims for a protection visa. However, the Tribunal failed to consider whether the Applicants continued to engage in the practice of Falun Gong in order to strengthen their claim for a protection visa.
Mr Zipser describes these two grounds as “The no evidence issue” and “the Section 91R(3) issue” and it is convenient to refer to the grounds by those titles.
Background
The Applicants arrived in Australia on 26th September 2006 and applied for Protection (Class XA) visas on 11th December. Their applications were refused by a delegate of the Minister on
16th December. The Applicants applied to the Refugee Review Tribunal for a review of that decision on 19th January 2007.
Application for Review by the Refugee Review Tribunal
The Applicants provided a statutory declaration with their application to the Refugee Review Tribunal, setting out a claim by the First Applicant to have been the subject of persecution by the Chinese government since 1968. He made a number of criticisms of the Chinese government’s human rights record, including its persecution of Falun Gong practitioners. He set out that he and his wife, the Second Applicant decided to start practising Falun Gong after they arrived in Australia in 2006. He claimed that they had been influenced by one David Liang, who also provided a letter of support. The First Applicant claimed that he and his wife did not intend to give up the practice of Falun Gong. He feared that if they practised Falun Gong openly in China they would be arrested.
The Applicants also provided a number of photographs of incidents of violence and harassment suffered by Falun Gong practitioners in Australia and South Africa, allegedly at the instigation of the Chinese government.
The Tribunal wrote to the Applicants on 7th February 2007, inviting them to attend a hearing, which was to take place on 7th March. The Applicants replied that they wished to attend and give evidence. They also said that they would like the Tribunal to hear evidence from Mr Liang.
The Applicants attended the hearing and brought their Chinese passports with them. They also submitted a petition signed by a number of people who claimed to know the Applicants as Falun Gong practitioners and had seen them engaged in the practice at both Darling Harbour and Parramatta NSW. They also provided a number of photographs.
The Applicants gave evidence at the Tribunal hearing. Mr Liang and his wife also gave evidence on the Applicants’ behalf, asserting that the Applicants were Falun Gong practitioners in Australia.
The Refugee Review Tribunal Decision
The Refugee Review Tribunal signed its decision on 23rd April 2007 and handed the decision down on 15th May, affirming the delegate’s decisions not to grant the Applicants Protection (Class XA) visas. A copy of the Tribunal Decision Record appears in full at pages 164 to 177 of the Court Book.
In its decision, the Tribunal set out a summary of the claims and evidence under the following headings:
a) Protection visa application.
b) Review application.
c) Country information.
d) Hearing.[1]
[1] See Court Book at 167-175
The Tribunal found that the Applicants are citizens of the People’s Republic of China, based on their Chinese passports. The Tribunal was also satisfied that the Applicants are a married couple, based on their Certificate of Relationship.
The Tribunal did not find that the Applicants were genuine Falun Gong practitioners, stating:
The applicants claim that they started the practice of Falun Gong for health reasons. However, no evidence has been provided to support this claim, either of the initial health problems (other than the applicant (SZKSY[2])’s leg injury which the Tribunal accepts occurred many years ago) or of any improvement in their health.[3]
[2] The name has been deleted to comply with s 91X of the Migration Act.
[3] Court Book at 176
The Tribunal then found that the Applicants intended commencing practising as soon as possible in order to prepare for a protection visa application and, after having considered the evidence, found that the Applicants were not genuine Falun Gong practitioners. The Tribunal found that if the Applicants continued to practise Falun Gong in China, they would face persecution, referring to the Independent Country Information that the Tribunal had considered.[4]
[4] Court Book 169-171
However, the Tribunal having found that the Applicants were not genuine Falun Gong practitioners, found that the Applicants would not continue to practice Falun Gong if they returned to China and so would not face persecution for that reason.
The Tribunal also found that the Applicants would not face persecution in China as a result of their activities in Australia because there was insufficient evidence that they had come to the attention of the Chinese authorities as a result of those activities. The Tribunal went on to find:
Having considered the evidence as a whole, the Tribunal finds that the applicants commenced the practice of Falun Gong in order to strengthen their claims for a protection visa. Therefore, under the provisions of s.91R(3) of the Act, the Tribunal must disregard the applicants’ Falun Gong and other claimed activities in Australia in determining whether they have a well-founded fear of being persecuted for one or more of the Convention reasons.[5]
[5] Court Book 177
The Tribunal affirmed the delegate’s decision not to grant the Applicants Protection (Class XA) visas.
The Applicants’ Submissions
On the first ground, the “no evidence” ground, Mr Zipser submitted that, contrary to the Tribunal’s findings that the Applicants had not provided any evidence to support their claim that they started the practice of Falun Gong for health reasons, the Applicants had actually provided evidence to that effect. He referred to the Tribunal’s outline of the Applicants’ claims and evidence in the decision record, pointing to examples at pages 167, 168, 172, 173 and 174.
Mr Zipser submitted that the Tribunal’s findings that there was no evidence of those matters indicated jurisdictional error for one or more of these reasons:
a)There was no evidence to support a finding of “no evidence”.
b)There may be jurisdictional error where a determination is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”;[6]
c)The Tribunal “did not actually consider what significance and weight [the evidence of the Applicant husband and wife about their initial health problems and improvements in their health] deserved” or the Tribunal did not “really and genuinely give it consideration”.[7]
[6] Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALJR 992 at [38]
[7] NAJT v Minister for Immigration and Multicultural Affairs (2005) 147 FCR 51 at [212]
On the second ground, the “Section 91R(3) issue”, Mr Zipser referred to the Tribunal’s finding that the Applicants commenced the practice of Falun Gong in order to strengthen their claims for a protection visa and that, under the provisions of s.91R(3), the Tribunal must disregard the Applicants’ Falun Gong and other claimed activities in Australia[8]. He submitted that the relevant question is not whether the Applicants commenced the practice of Falun Gong otherwise than for the purpose of strengthening their claims to be refugees but whether they engaged in the practice of Falun Gong otherwise than for the purpose of strengthening their claims to be refugees.
[8] See Court Book 177
In this case, in the light of the evidence of the Applicants’ active involvement in Falun Gong activities and demonstrations, the improvement in their health; and the corroborative evidence of Mr Liang and the petition from fellow Falun Gong practitioners, it was possible that, even if the Applicants had commenced the practice of Falun Gong for the purpose of strengthening their claims to be refugees, by the time of the Tribunal hearing on 7th March 2007 they had become genuine Falun Gong practitioners.
Mr Zipser referred the court to the decision of Driver FM in SZGYT v Minister for Immigration & Anor[9] where his Honour had found jurisdictional error on this basis.
[9] [2007] FMCA 883 at [11]-[13]
The First Respondent’s Submissions
Counsel for the First Respondent, Ms McWilliam, submitted that the Tribunal’s statement that there was “no evidence” to support the Applicants’ claim had to be read in the context of the Tribunal’s decision as a whole and that the following paragraph made it clear that the Tribunal was referring to corroborating evidence such as medical certificates or statements from other witnesses.
Ms McWilliam reminded the Court that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[10] The Court should not be concerned with looseness in the language or with unhappy phrasing of the reasons of an administrative decision-maker. Ms McWilliam submitted that, read in this light, the Tribunal’s reasons were informative in disclosing the Tribunal’s reasoning process. The Tribunal did not accept that the Applicants were genuine Falun Gong practitioners, taking into account the evidence as a whole.
[10] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, per Brennan CJ, Toohey, McHugh and Gummow JJ
As to the second ground, Ms McWilliam submitted that there is nothing in the Tribunal decision to suggest that the Tribunal misunderstood s.91R(3) of the Act or misapplied the section to the present case.
The onus of proof, she submitted, was on the Applicants to establish that their activities in Australia were engaged in for reasons other than for the purpose of strengthening their refugee claims.[11] The Applicants’ evidence was that they had only commenced to practise Falun Gong after arriving in Australia and they failed to satisfy the Tribunal about the genuineness of their conversion since that commencement. On the evidence, it was open to the Tribunal to conclude as a matter of fact that the Applicants had commenced practising Falun Gong for the purpose of strengthening their claim for protection.
[11] NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 at [26] per Wilcox J
As to the Applicants’ assertion that the Tribunal misapplied s.91R(3) by not considering whether the Applicants had continued to engage in the practice of Falun Gong on a genuine basis, Ms McWilliam submitted that the Tribunal had turned its mind to that possibility. She submitted that the Tribunal had addressed both the genuineness of the Applicants’ commencement and the genuineness of their current practice.[12] Thus, this case can be distinguished from SZGYT v Minister for Immigration, regardless of whether Driver FM’s reasoning is accepted or not.
[12] See Court Book at 172.10 and 176.2-3
In short, Ms McWilliam submitted that both of the Applicants’ grounds of review must fail.
Conclusions
Dealing first of all with the Applicants’ “no evidence” ground, I am satisfied that the Applicants have established that the Tribunal made its finding without evidence. There was evidence that the Applicants claimed that they had commenced practising Falun Gong for reasons of their health. I am unable to agree with the submission of Ms McWilliam for the Minister that the fourth paragraph on page 176 of the Court Book should be read as referring to corroborative evidence rather than evidence per se. The relevant sentence of that paragraph states:
Having considered the evidence as a whole, including the evidence of the two witnesses, the petition and the photos, the Tribunal finds that the applicants are not genuine Falun Gong practitioners.[13]
[13] Court Book page 176
This statement does not, to my mind, act as a gloss on the finding in the third paragraph on page 176:
The applicants claim that they started the practice of Falun Gong for health reasons. No evidence has been provided to support this claim, either of the initial health problems (other than the applicant (SZKSY)’s leg injury which the Tribunal accepts occurred many years ago) or of any improvement in their health.[14]
[14] Ibid
The ordinary English meaning of the above statement is clear and does not require the reader to refer to the fourth paragraph to understand it. I am not satisfied that it is an example of either looseness in language or unhappy phrasing. The statement means what it says.
It also appears clear that, in its finding, the Tribunal did not, as Mr Zipser submitted, actually consider what significance and weight the Applicants’ evidence about their health deserved.
Either way, the Tribunal has fallen into jurisdictional error.
I am not prepared to go so far as to find that the Tribunal decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Turning to the second ground, where the Applicants claim that the Tribunal fell into jurisdictional error in failing to apply s.91R(3) of the Migration Act, I note that the subsection does not refer to the commencement of any conduct, but whether the person concerned engaged in that conduct.[15]
[15] Migration Act 1958 (Cth) s.91R(3)
I have had the benefit of reading the decision of Driver FM in SZGYT v Minister for Immigration & Anor[16] to which I have been referred by Mr Zipser. In that decision, his Honour held:
[12] In other words, the Tribunal considered that, regardless of whether the applicant was practising Falun Gong in Australia, and it accepted that he was, he did not commence that practice because he was a genuine Falun Gong believer but to enhance his protection visa claims. I prefer the interpretation of the words “engaged in’ in s.91R(3) as meaning “carried on” rather than “commenced”. There is logic in that interpretation. A person may commence a course of conduct in Australia for the purpose of enhancing their protection visa claims but nevertheless carry on that conduct for other reasons. In the case of religion they may over time become a genuine adherent. If a person commences engaging in a religious practice to support their protection visa claims but over time becomes a genuine adherent, in my view s. 91R930 does not require that the conduct to be disregarded. The Tribunal remains able to consider whether, on a forward looking assessment, the person would suffer a real risk of harm in their country of origin.
[13] In my view, by concentrating on the commencement of the applicant’s conduct in Australia rather than in considering the entire period of that conduct the Tribunal overlooked the significance of the statutory declarations which attest to the genuineness of the applicant’s belief and practice of Falun Gong at the time of the declarations. The Tribunal needed to consider whether, taken as a whole, the applicant’s conduct in Australia was merely to support his protection visa claims or whether he had become a genuine practitioner whose risk of harm in China therefore needed to be considered.[17]
[16] [2007] FMCA 883
[17] [2007] FMCA 883 at [12]-13]
With respect, I am unable to agree with the submission of Ms McWilliam that this decision should be distinguished. I am satisfied that it is on point and I am not satisfied that his Honour’s reasoning is wrong. I propose to follow the decision, which found that the Tribunal in that case did not give any real consideration to the particular issue and therefore fell into jurisdictional error.
I am satisfied that the Tribunal in this case, by concentrating on the fact that the Applicants had commenced the practice of Falun Gong, failed to consider that the Applicants may have become genuine practitioners whose risk of harm in China needed to be considered. Accordingly, the Tribunal fell into jurisdictional error and the application for certiorari and mandamus will be granted.
As the Applicants were legally represented, I will consider the question of costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 4 September 2007
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