SZKUH v Minister for Immigration
[2008] FMCA 93
•5 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 93 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – fact finding not a function of judicial review – credibility – country information – bias – no breach of s.424A of the Act. |
| Migration Act 1958, ss. 65(1), 36(2), 91R, 91S, 425(1), 424A, 424A(1), 424A(1)(b), 424A(3)(a), 424A(3)(b), 425(1), 474 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC)) Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 referred to Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZKUH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1908 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 4 December 2007 |
| Date of Last Submission: | 4 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in Person |
| Solicitor for the Respondents: | Mr O'Brien, DLA Phillips Fox |
THE COURT ORDERS THAT:
The proceeding before this Court, commenced by way of application filed on 19 June 2007, is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $3000.00 payable within 5 months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT |
SYG 1908 OF 2007
| SZKUH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 23 April 2007 and notified to the applicant by letter dated 15 May 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 9 July 1975. He claims to be a national of China (PRC). In his protection visa application, he states that he was married in 1996 and that his wife and son (born in 1997) reside in China.
The applicant arrived in Australia on 7 October 2006 on a Chinese passport issued in his own name, holding a Subclass 456 Temporary Business visa which expired on 7 January 2007.
The applicant lodged an application for a Protection Visa (Class XA) on 14 November 2006 with the Department of Immigration and Citizenship (“the Department”) on the basis that he could not enjoy basic human rights in China because he is/was a Falun Gong member. He claims that he became a Falun Gong member before it was banned in China. In 1999, he states that he was sent by his branch to Beijing to ask for rights to freedom of belief. In Beijing, he participated in Falun Gong activities and had meetings with other members. He claims that he suffered brainwashing many times, his family members were investigated and he could not enjoy a normal life. He claims he was put into a separate room and questioned for four days. He states that he had to pay extra money to get his passport and visa to come to Australia. He fears he will suffer further persecution if he returns to China (Court Book (CB) 79).
On 25 January 2007 the delegate of the respondent Minister (“the delegate”) refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 1 March 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 47-51).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 7 March 2007, pursuant to s.425(1) of the Act, the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments (CB 56-57).
On 23 April 2007 the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of a Mandarin interpreter.
The applicant’s claims and evidence (CB 79-81)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 79). It further summarised the applicant’s claims before the Tribunal hearing (CB 79-81), including that:
·he left China because he was persecuted by authorities in China because of his Falun Gong practice and activity.
·he claims that he fears he will face further persecution for that reason if he returns to China (CB 81).
·at the Tribunal hearing the applicant gave evidence and was asked questions by the Tribunal, in particular concerning:
·the obtaining of his 2006 passport and return travel to Vietnam.
·his places of residency in Hunan, and his living for six months prior to coming to Australia with his family in the one place.
·his construction site employment (near his place of residency) for six months prior to coming to Australia.
·his persecution in China. He claimed he was detained several times in China in July and September 1999 and in January and May 2000, but not thereafter. He has practised Falun Gong since 1999 in China; and then in Australia.
·his knowledge of Falun Gong, that he was not able to name or describe the main Falun Gong exercises, or to draw its symbol because his brain was “stirred up”.
The Tribunal put to the applicant:
·that he did not seem to have similar difficulties with his memory regarding dates and places where he had lived.
·how he managed to live and reside in China without harm until he left to come to Australia if he was persecuted there.
·why he returned to China after Vietnam if he was persecuted in China as he claimed.
The Tribunal’s findings and reasons (CB 81-83)
In this regard, the Tribunal accepted that:
·independent country information supports generally the applicant’s claims about persecution of Falun Gong practitioners by PRC authorities.
·applicants for refugee status face particular problems of proof, in particular documentary proof and that “if the applicant’s account appears credible, he should unless there are good reasons to the contrary, be given the benefit of the doubt.” (United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, (the UN Handbook), Geneva, 1992 at para 196)…[but only] “when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts” (at para 203).
·the applicant is a citizen of the PRC, who travelled to Vietnam in 2006 and then returned to China.
The Tribunal did not accept that:
·the applicant was a “witness of truth”
·the applicant was a genuine Falun Gong practitioner either in China or Australia (based on his inability to describe or name its main exercises and to draw, even roughly, the Falun Gong emblem).
·his explanation for his failure to describe or name the exercises, or to draw the emblem, was because of his state of mind.
·the applicant was detained, questioned or harassed in China because of his Falun Gong practice.
·the applicant fears harm in China because he was/is a Falun Gong practitioner.
·the applicant’s family members were investigated/harassed in China.
·the applicant had difficulty obtaining his travel documents when leaving China because he was a Falun Gong practitioner.
·the applicant left China for the reasons he claimed.
·the applicant cannot or will not return to China because he fears persecution for the reasons he claimed.
Overall, the Tribunal found that:
·the applicant “invented his claims about being a Falun Gong practitioner in China and Australia to assist his application for a protection visa.”
·his claims of persecution for Falun Gong activities were inconsistent with:
·his working and living in Hunan for six months, up until he came to Australia and his family members still residing there in the family home.
·his returning to China after his travel to Vietnam in 2006.
·there was “no plausible evidence” that the applicant was/is a Falun Gong practitioner and will suffer persecution from the Chinese authorities either now or in the reasonably foreseeable future because of his Falun Gong practice or for any other Convention reason, if he were to return to China.
It was therefore not satisfied on the evidence that the applicant has a well founded fear of persecution in China within the meaning of the Convention; and was not satisfied that he is a person to whom Australia has protection obligations under the Convention (CB 82 – 83).
The proceedings before this Court
The applicant filed the application and affidavit in support in this Court on 19 June 2007 setting out 3 grounds for review and an amended application on 19 September 2007 setting out 3 grounds for review of the Tribunal’s decision.
The applicant confirmed he relied on his amended application, but given that he was not legally represented, the Court has considered any grounds raised in his application which are not covered in his amended application. I note that the applicant did not provide the Court with a transcript of the evidence of the Tribunal hearing, nor with any written submissions pursuant to the Consent Orders of 26 July 2007 which set out a timetable in this regard.
The applicant appeared in person before the Court on 4 December 2007 with the assistance of a Mandarin interpreter. Mr O’Brien appeared for the first respondent.
Each of the grounds was translated for the applicant, prior to his being invited to say anything he wished in regard to each ground, and generally.
Grounds of application
The grounds of the application are:
1. The Tribunal did not believe my claims. The decision to refuse my application was not made based on evidence and materials.
2. The tribunal failed to consider my application in accordance with S424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal did not give me opportunity to comment upon the reason for affirming the decision.
3. The Tribunal failed to refer to proper independent information for the consideration of my application.
Ground 1 of the application
It is clear that the Tribunal’s decision was based upon its finding that the applicant was not a “witness of truth”, and hence did not believe his claim.
I accept the submissions by the first respondent that the Tribunal’s adverse findings of the applicant’s credibility were open to it on the evidence and the material before it, in particular, based on the applicant’s lack of knowledge of the key aspects of the practice of Falun Gong; the unconvincing explanation he put forward for his lack of knowledge; the inconsistency in his assertions of persecution with his being able to live and work in his home town, and with family members still residing there, for six months up until he came to Australia; and with his recent travel to Vietnam and return to China.
The Tribunal’s conclusions that the applicant was not a “witness of truth” were findings of fact par excellence:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged: (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
I consider that the applicant is, in effect, inviting the Court to undertake a review of the merits of the Tribunal decision. It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558].
Contrary to the applicant’s assertion, I am satisfied that the Tribunal’s decision was clearly based on all the evidence and material before it. I am further satisfied that the conclusions it reached were open to it on that evidence, and that it performed the task required of it in accordance with law.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
This ground duplicates Ground 3 of the amended application and will be dealt with in that context.
Ground 3 of the application
The applicant has not particularised what he says constitutes “proper independent information”. In any event, the Tribunal’s choice and assessment of country information is purely a factual matter for it: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84].
Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].
In any event, it is difficult to see what the applicant’s complaint is in the present case, since the Tribunal’s consideration of the independent country information led it to accept, not reject, that this information “supports, in a general way, the applicant’s claims about persecution of Falun Gong practitioners by PRC authorities.”
The Tribunal further accepted the statements in the UN Handbook concerning particular problems of proof for applicants and the giving to them of the benefit of the doubt if satisfied of their general credibility and the coherency and plausibility of their statements.
The Tribunal turned to consider the specific case of the applicant in the light of this independent information and to determine whether he had genuine fears founded upon a real chance of persecution for a Convention reason if he were to return to China. It considered the inconsistencies and credibility in the applicant’s case in this context. I accept that this was an entirely proper procedure for it to adopt and upon which to base its conclusions: Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24].
Accordingly, Ground 3 of the application is rejected.
Amended Grounds of Application
The grounds of the amended application are:
1. The Tribunal had bias against me and did not believe my claims.
2. The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation.
3. The Tribunal failed to notify me in writing 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 S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal based it’s findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by S424A to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
Ground 1 of amended application
The applicant has not sought to particularise the allegation of bias, nor has he provided the Court with a transcript of the Tribunal proceedings upon which it could have made a more informed assessment of the allegation.
I accept the submission by the first respondent that it is well established that bias, as an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision maker. The applicant would therefore have to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56]-[59]. This has simply not been done in the present case
Further, it is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. Again, this has simply not been done.
I also note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In this regard, I am satisfied that there is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is simply nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is 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 did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I accept on a proper reading of the Tribunal’s decision record, it performed the task required of it without pre-judgment or partiality. The fact that the Tribunal did not ultimately believe the applicant’s claims was a matter for it in its fact finding role and has already been dealt with under Ground 1 of the application above. I rely on my reasoning therein.
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of amended application
The applicant’s submission on this ground is effectively covered by Ground 1 of the application which asserts that the Tribunal decision was not based on the evidence and material. I rely on my reasoning in that context and am fully satisfied that, for those same reasons, the Tribunal reached its adverse conclusions as to the applicant’s credibility and that he was not therefore a refugee, on a proper and considered assessment of all the evidence.
Accordingly, Ground 2 of the amended application is rejected.
Ground 3 of amended application
Section 424A(1) of the Act requires the Tribunal to give an applicant “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”, to explain why that information is relevant to the review; and to invite the applicant to comment on any adverse finding which might be made by it.
In this case, the applicant was not sent a s.424A letter by the Tribunal.
The clear statutory rationale for s.424A is to ensure, “as far is reasonably practicable” that the applicant understands (s.424A(1)(b)) and is aware of any “information” upon which it might make an adverse finding, and to give the applicant an opportunity, as a matter of fairness, to respond or comment on that information before the Tribunal makes its decision.
Subsection (3) of s424A, however, provides important statutory exceptions to s.424A(1), in particular that it does not apply to independent country information: s.424A(3)(a), nor to information “that the applicant gave for the purpose of the application”: s.424A(3)(b), seemingly because the applicant is clearly on notice of such information provided by him.
In the present case, the Tribunal’s adverse findings of credibility, were founded on information known to and provided by the applicant himself from his passport or from his oral evidence concerning his knowledge of Falun Gong; its exercises and symbol; and inconsistencies with his work and residencies in the six month period prior to his leaving China; the continued residency of family members there; and his return to China after travelling to Vietnam. These are all matters falling within s.424A(3)(b) of the Act
It is also clear that, a proper construction of the word information in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to matters where the Tribunal does not believe the applicant’s evidence and does not find him to be a credible witness: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
I am satisfied therefore for these reasons that the Tribunal was not obliged to notify the applicant pursuant to s424A(1) of its concerns about the applicant’s credibility and inconsistencies in his evidence. I find therefore no breach of s.424A of the Act in this case.
Accordingly, Ground 3 of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and amended application before this Court are dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Christine Cargill
Date: 5 February 2008
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