SZLBH v Minister for Immigration - [2008] FMCA 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 303

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth) ss.91R, 424A

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZGQN v Minister for Immigration & Citizenship [2007] FCA 428
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982

First Applicant:

SZLBH

Second Applicant:

SZLBI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2178 of 2007

Judgment of:

Barnes FM

Hearing date:

4 March 2008

Delivered at:

Sydney

Delivered on:

4 March 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application be dismissed.
That the applicants pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2178 of 2007

SZLBH

First Applicant

SZLBI

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 26 June 2007 affirming decisions of a delegate of the first respondent not to grant the applicants protection visas.
The applicants are husband and wife and citizens of the People's Republic of China. They arrived in Australia in December 2006. Each of them applied separately to the Department of Immigration for a protection visa. Each made separate claims as to the basis on which they sought protection. Both related to claims of involvement in the practice of Falun Gong in China.
The applicant wife claimed that she began to practise Falun Gong in 2003 and that in February 2006, after a fellow practitioner was arrested, she was arrested and detained for 42 days, mistreated, accused of disturbing the social order and that after she wrote a letter of repentance she was released although she remained under the surveillance of the police and was harassed.
She claimed that with the assistance of friends she and her husband paid money to get passports and visas to visit Australia but before that they visited Japan. She claimed that since arriving in Australia they had been practising Falun Gong with the assistance of their friends but that the PSB authorities in China were still pursuing the matter.
The applicant husband's separate claims addressed his reasons for taking up the practice of Falun Gong in 2005. He claimed he was sponsored by a named person, practised at home secretly and went to the homes of other practitioners. He claimed that in February 2006 he was informed that another person had been arrested and tortured and confessed about his co-practitionersm including the applicant. He claimed that he stayed with a relative for three days, obtained money to bribe the police to get a passport and a visa and paid money and that eventually having, as he put it, “Run risks and gone through zig zags” arrived in Australia.
He claimed he was a Falun Gong practitioner wanted by the Chinese government, that the local PSB was tracing his whereabouts and had told his family he should “make clean” of his problem on return to China to get lenient treatment. He claimed that he had been actively participating in the study and practice of Falun Gong and in Falun Gong activities, including protests, in Australia.
Each of these applications for a protection visa was refused by a delegate of the respondent. The applicants each applied separately for review by the Tribunal. The Tribunal recorded that it conducted a joint hearing, providing a common introduction to proceedings, taking evidence from each applicant in isolation and then continuing with the both applicant's present.
Thereafter the Tribunal wrote separately to each of the applicants under s.424A of the Migration Act 1958 (Cth). The letter to each applicant raised information received from the other applicant in the course of the Tribunal hearing.
The applicants provided a joint response, which they described as a clarifying statement in support of their application and which addressed some of the issues raised in the two separate s.424A letters.
The Tribunal recorded in its reasons for decision that in view of shared facts in the case and the joint presentation of evidence including the s.424A response and with regard for clarity and economy, it had presented its decision and reasons for decision in a common decision record.
In its findings and reasons the Tribunal accepted that the applicants were nationals of the People's Republic of China. It also accepted that Falun Gong practitioners in the China, if known to be acting in defiance of the 1999 ban or suspected of doing so, faced a risk of persecution that could reasonably be regarded as Convention related. However, it pointed out that whether or not individual applicants before it faced a real chance of such persecution had to be determined on the merits of each case.
While the Tribunal was satisfied on the evidence before it that the applicants had such knowledge of Falun Gong exercises and principles as might a genuine Falun Gong adherent who had undertaken regular and frequent study and exercise over a period of several months, it went on to consider whether or not the applicants were “genuine” Falun Gong adherents.
The Tribunal accepted that the reference letters provided from Falun Gong practitioners in Australia indicated that the authors of those letters had known the applicants named in those letters since January 2007 through a Falun Gong group gathering in Campsie. However it gave such letters no weight insofar as they purported to assert that the respective applicants were genuine Falun Gong practitioners because the applicants lacked credibility about when, where and why they each began to practise Falun Gong.
The Tribunal had regard to the fact that the applicants each claimed to have begun to practise Falun Gong at a time when it was already banned and its practitioners were facing or risking serious physical and psychological harm at the hands of the state. It found the applicant wife gave confused and unconvincing evidence to the Tribunal as to whether she was aware of the risk of engaging in Falun Gong in 2003 when she claimed she commenced such engagement. It gave details of the manner in which it found her evidence unconvincing and described inconsistencies in her claims. The Tribunal found that she provided no plausible evidence of having weighed the potential consequences of engaging in Falun Gong, contrary to what it considered would be reasonable to expect in the circumstances claimed. It did not accept her explanation in this respect, having regard to the nature of the explanation and her overall performance at the hearing as a witness. The Tribunal found that the applicant wife understood the questions put to her and that her answers were implausible and unconvincing. The Tribunal did not accept on the evidence before it that the applicant wife was introduced to Falun Gong in the People's Republic of China as claimed.
It also found independently that the applicant husband's account of how he chose Falun Gong in the face of the potential risk of doing so to be unconvincing and unreliable. It found also that it followed from the findings about the applicant wife that the husband's account of how he came to embrace Falun Gong in China was unreliable. It did not accept on the evidence before it that the applicants became Falun Gong practitioners in the People's Republic of China.
The Tribunal found that the applicants had given varying accounts as to when, to what degree and with what formality they were being pursued by the PSB in 2006. It is apparent that this is a reference to the applicants' separate written claims and also to the evidence given by each of the applicants at the hearing about the events of 2006 and what led them to understand that they were of interest to the authorities as claimed. In that respect I note that the Tribunal account of what occurred in the Tribunal hearing (which is the only evidence before the Court of the conduct of the hearing) indicates that the Tribunal raised these issues with each of the applicants and put to them concerns in relation to aspects of their claims.
The Tribunal found that, “[a]llowing for variations, the consensus is that at least one of the applicants was wanted from February 2006 onwards.” However, in light of the fact that it did not accept that the applicants were Falun Gong practitioners in China it gave no weight to their claims about having been of interest to the authorities for any relevant reason. In addition, the Tribunal found that these claims were “unconvincing and confused”.
Having found it implausible that the applicant wife did not know until she arrived in Australia that Falun Gong practitioners were at liberty to practise here, the Tribunal also referred to their “several different and sometimes mutual exclusive reasons for not seeking refuge in Japan” (to which they travelled before travelling in May - June 2006). They had returned to China and travelled to Australia in December 2006. Overall it accepted that this was to create a visa compliance history to convince Australian authorities to issue visas. The Tribunal stated it had the impression that the applicants were doing what it might take to come to Australia but that this had nothing to do with seeking refuge as Falun Gong practitioners.
The Tribunal accepted that the applicants falsified some employment details but not that they did so for any purpose other than to obtain visitor visas to come to Australia. This falsification and the declared motivation of the Japan trip were factors that led the Tribunal to perceive in a “negative light” the applicant’s familiarisation with Falun Gong which it found they had “only done since coming to Australia”. It was of the view that the applicants had done so for the purposes of obtaining protection visas and disregarded their Falun Gong activities in Australia having regard to s.91R(3) of the Migration Act 1958.
It also found the involvement of an agent in assisting the applicants to obtain travel authorisation did not suggest that the agent's expertise was provided in “circumventing problems with the PRC authorities in a Convention-related matter”, finding their claims in that respect “unconvincing and far-fetched”. The Tribunal gave weight to the fact that the applicants were allowed to hold and use passports in their own name and use them a number of times to pass through the PRC's immigration barriers without impediment. It gave no weight to their explanations as to how they did so in the claimed circumstances.
The Tribunal was not satisfied that the applicants faced a real chance of Convention-related persecution in the People's Republic of China. It found that their claimed fear of Convention-related persecution was not well founded and that they were not refugees.
The applicants sought review by application filed in this Court on 13 July 2007. The application contains a number of generally expressed and unparticularised grounds. No amended application or written submissions were filed.
Only the applicant wife attended the hearing today. She told the Court that her husband was in Melbourne and in response to questioning indicated that she was appearing for him.
I consider first the grounds in the application. The application contains a general claim that the decision involved an error of law. It recites that the decision involved an important exercise of the power under the Migration Act and Regulations. It claims, without elaboration, that the respondent did not carefully consider the information in favour of the applicants and that there was no evidence or other material to justify the making of the decision. It then sets out what are described as grounds of the application in a number of paragraphs.
Insofar as there is a general claim that the decision involved an error of law, that is not established on the material before the Court, either in general terms or (as I discuss further below) in any manner particularised in the described grounds of the application.
The claim that the Tribunal did not carefully consider the information in favour of the applicants also does not establish jurisdictional error. It is apparent from the Tribunal reasons for decision that it considered all of the material put before it and before the Department in written and oral form, including information that might be said to be in favour of the applicants. I note in particular that the Tribunal addressed the information provided to the Tribunal in letters of support in relation to the applicants' activities in Australia. It found, as was open to it, that the authors of those letters had known the respective applicants in Australia since January 2007 through a Falun Gong group gathering. However, it gave no weight to these letters insofar as they purported to assert that the applicants were genuine Falun Gong practitioners, finding, as set out above, that it did not accept that the applicants became Falun Gong practitioners in China. The Tribunal disregarded their activities in that respect in Australia under s.91R(3) of the Act.
The general claim that there was no evidence or other materials to justify the making of the decision is also not established on the material before the Court. This is not a case in which it can be said that there is no evidence in a sense that might constitute jurisdictional error. Insofar as the applicants seek merits review of the Tribunal decision, that does not establish jurisdictional error. Merits review is not available in this Court.
The first paragraph under the heading grounds of the application reiterates the applicants' claims to fear persecution. It does not establish jurisdictional error. The next paragraph contends that the Tribunal failed to understand the applicant’s claims and failed to consider relevant matters. It states that further particulars are to be provided. No such particulars were provided in the form of an amended application or written submissions.
When the applicant was asked about this ground and given the opportunity to provide further particulars she indicated that they attended a lot of Falun Gong activities in Australia and had photographs and internet information to prove that. Some photographs and other information was put before the Tribunal by the applicants in connection with their review. However, as indicated above, the Tribunal considered this material and the applicant’s claims about their activities in Australia but was of the view that the applicants had familiarised themselves with Falun Gong in Australia for the purpose of obtaining protection visas. For the purposes of the review it disregarded all of the applicants' Falun Gong activities in Australia. No jurisdictional error is established on this basis.
I have also considered more generally whether the Tribunal failed to understand or to address any integers of the applicants' claims, including claims made in connection with their protection visa applications, in particular the applicant wife’s claim that she was arrested and detained, forced to sign a confession, released but was thereafter under surveillance, and her husband’s claim that he was under surveillance. The Tribunal raised a number of issues with the applicants at the hearing about their claims that they were being pursued by the PSB in 2006. It found that the wife gave a number of differing explanations, in particular for why she claimed that she was either on the police list in 2006 or wanted and from what time. The Tribunal also discussed with the husband the timing of his application for travel to Australia and the implications of that.
Relevantly, in its findings and reasons the Tribunal not only did not accept that the applicants became Falun Gong practitioners in the People's Republic of China, it also addressed their claims that they were being pursued by the PSB in 2006 and hence any consequences of such claim. It referred to the varying accounts in that respect and the consensus that at least one of them was wanted from February 2006 onward. However, having found that it did not accept that the applicants became Falun Gong practitioners in China it gave no weight to their claims about having been of interest to the authorities for any relevant reason. In addition the Tribunal found that such claims were unconvincing and confused.
It has not been established on the material before the Court that the Tribunal erred in the manner contended for in this ground in the application. The Tribunal considered the applicants' s claims.
The next ground is that the Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth). This ground contends that information that was the reason or part of the reason for the Tribunal affirming the decision under review included information contained in “our protection” (sic). This seems to be a contention that the claims made by the applicants in the protection visa applications had to be put to them in writing pursuant to s.424A of the Migration Act, although it was not elaborated on either in the application or by the applicant wife in oral submissions today.
I have had regard to the approach of the High Court in relation to the scope of s.424A in relation to information provided by an applicant in a protection visa application in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. Relevantly Gleeson CJ and Gummow, Hayne, Callinan and Crennan JJ accepted what was said by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471stating at [18]:
If the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellant's evidence and inconsistencies therein it is difficult to see how such disbelief could be characterised as constituting information within the meaning of paragraph (a) of s.424A(1).
The generally expressed contention in this case that the Tribunal should have put the information in the protection visas to the applicants under s.424A(1) is not such as to establish a jurisdictional error. This is not a case in which part of the protection visa applications contained “in their terms a rejection, denial or undermining of the [applicant’s] claims to be persons to whom Australia owed protection obligations” (SZBYR at [17]).
The next ground repeated the claim already discussed that the Tribunal failed to understand and consider the claims and consider relevant matters. It does not establish jurisdictional error.
The next is that “[t]he respondent refused to grant our protection visa without any proper grounds and proper investigation”. However the reasons for decision reveal that, contrary to this contention, the Tribunal gave reasons for its decision. In particular it was based on the applicants' own evidence, especially their evidence at the hearing. It did not accept that they became Falun Gong practitioners in China. This is not a case in which there was an obligation on the Tribunal to conduct enquiries as appears to be contended. It is for an applicant to put his or her case to the Tribunal and for the Tribunal to determine whether it is satisfied that the criteria for the protection visa are met (see SZGQN v Minister for Immigration & Citizenship [2007] FCA 428 at [28]).

The next paragraph seeks protection. It does not establish jurisdictional error.
Finally it is contended that the Tribunal decision is illogical. Mere lack of logic in a decision of the Tribunal is not a ground for review (see VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18]). There is nothing in the material before the Court to establish that any illogicality in the Tribunal reasons such as to establish a jurisdictional error on any other basis. This contention was not particularised and no jurisdictional error is established on the basis contended for by the applicants.
In oral submissions the applicant wife took issue with the merits of the Tribunal decision. As I explained to her, merits review is not available in this Court. After hearing the oral submissions from the solicitor for the respondent the applicant claimed for the first time that in the Tribunal hearing the Tribunal did not ask her any questions about her arrest or religious activities in China or Australia. She contended that the Tribunal formed its view based on questions about her passport.
There is no transcript of the Tribunal hearing before the Court. Insofar as this late claim is intended in some way to raise an allegation of actual or apprehended bias it is not established on the material before the Court (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982). It appears from the Tribunal account of what occurred in the Tribunal hearing that it did raise issues with the applicant wife in particular in relation to her activities in Australia and also discussed with her her claims to be wanted by the PSB in 2006. Moreover the Tribunal considered her claims in the findings and reasons as part of its decision. No jurisdictional error is established on this basis.
As no jurisdictional error has been established the application must be dismissed.
The applicants have been unsuccessful and the first respondent seeks that the applicants pay his costs of these proceedings in the sum of $3,000. The applicant wife indicates that she cannot afford this amount. However there is nothing in the circumstances before the Court to warrant a departure from the normal principle that the unsuccessful applicants should meet the costs of the respondent. The applicants' impecuniosity is not a reason of itself for departing from this principle in the circumstances of this case, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs. I consider that the amount is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 18 March 2008