SZLBM v Minister for Immigration
[2008] FMCA 110
•8 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 110 |
| MIGRATION – Review of decision of Refugee Review Tribunal – findings of fact not function of judicial review – "Wednesbury unreasonableness" – procedural fairness – onus of proof – no arguable case – application dismissed at show cause hearing. |
| Migration Act 1958, ss.5, 36, 65, 422, 424, 425 |
| NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 Rhandawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZLBM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2190 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 13 December 2007 |
| Date of Last Submission: | 13 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application to show cause filed on 16 July 2007 is dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,000.00 payable within 5 months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2190 of 2007
| SZLBM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
This is an application pursuant to Rule 44.05 of the Federal Magistrates Court Rules 2001 seeking an order to show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) as amended (“the Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 May 2007 and notified to the applicant by letter dated 21 June 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
The first respondent in its Response (filed 1 August 2007) opposes the application on the grounds that the application has not raised an arguable case for the relief claimed.
Background
The applicant was born on 21 September 1963 and was aged 42 years at the time of his application for a protection visa.
The applicant claims to be a national of the People's Republic of China (China).
The applicant arrived in Australia on 9 August 2006 on a Chinese passport issued in his own name, holding a class UC subclass 456 Temporary Business visa which was valid for 1 month.
The applicant lodged an application for a Protection (Class XA) visa on 23 August 2006 on the basis that he was a Falun Gong practitioner and feared harm from the authorities if he were to return to China. (Court Book (CB) 26-28).
On 18 November 2006, 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).
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 16 February 2007, the applicant applied to the Tribunal for review of the delegate’s decision (CB 74-85).
On 9 March 2007 pursuant to s.425(1) of the Act, the Tribunal sent a letter to the applicant inviting him to appear before it on 27 April 2007 to give oral evidence and present arguments (CB 88-89).
On 18 April 2007 the applicant provided letters and photographs to the Tribunal regarding his involvement in Falun Gong related activities in Australia (CB 91-96).
On 27 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 118-125)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 118-119). It further summarised the applicant’s claims at the Tribunal hearing (CB 119-125), including that:
·he had been a Falun Gong practitioner since 2003
·he practised in private with his wife in China until his departure from that country
·he feared harm from the authorities if he were to return to China.
The Tribunal’s findings and reasons (CB 127-130)
I accept that the first respondent has accurately summarised the Tribunal’s findings and reasons as follows:
·the applicant was not a truthful, reliable or credible witness and, on that basis, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason
·the Tribunal made the following specific findings when making the adverse credibility findings about the applicant:
–the applicant's oral evidence regarding his residential and work history was inconsistent with the information he had provided in his application for a protection visa. The Tribunal did not accept the applicant's explanation that these inconsistencies were occasioned by his travel agent or his own negligence;
–the applicant's oral evidence regarding his association with SZLAR (a review applicant whose application had many similarities with the applicant) contradicted the evidence of SZLAR regarding their relationship and their knowledge of each other;
–a comparison between the written information provided by the applicant and SZLAR suggested that the same person was responsible for drafting each application;
–given the history of the association between the applicant and SZLAR, it would have been reasonable for the applicant to call SZLAR as a witness to corroborate his claim of persecution as a Falun Gong practitioner. The Tribunal found that the fact that the applicant did not call SZLAR indicated that the evidence of SZLAR would not have supported his claim;
–the applicant's claim that he was “monitored” by authorities from 2003 was implausible. The Tribunal found that if the applicant was being “monitored” since 2003, the Chinese authorities would not have waited until four months prior to his departure from China to visit his house
–the applicant's claims regarding how he obtained a Chinese passport were not credible.
The Tribunal further found that, despite the applicant demonstrating a good knowledge of Falun Gong, and despite the supporting letters and photographs the applicant had submitted regarding his involvement in Falun Gong related activities in Australia, it “is not satisfied that the applicant’s conduct in Australia has been otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention.” This conduct was disregarded by the Tribunal pursuant to s.91R(3) of the Act.
For these reasons, the Tribunal found there was not a real chance the applicant would be of any adverse interest to the Chinese authorities for Falun Gong or any Convention related reasons. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to China.
The proceedings before this Court
The applicant filed a show cause application in this Court on 16 July 2007, together with an affidavit in support of the application, setting out three grounds for review of the Tribunal’s decision. The applicant filed an amended application on 26 September 2007 setting out one further ground.
The applicant appeared in person before this Court on 13 December 2007 with the assistance of a Mandarin interpreter. Ms Anniwell 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 three grounds of the show cause application are:
1.My wife and I have been genuine Falun Gong practitioners since March 2003. However we had to do our practice and meditation in a very secret way and were in constant fear. We usually did our practice from 10pm to 11pm at home after our children went to bed. We had fear that if the local committee cadres and police found our practice, we would be sent to a labour camp. After our discussing, we decided to let me go abroad first, then await the available opportunity for my wife and children because we had limited financial resources. Unfortunately, the Tribunal did not believe the facts.
2.After I got to Australia, I have participated in the activities organized by Falun Dafa Association NSW, which the Refugee Review Tribunal member thought for the purpose of strengthening my case
3.I think the Refugee Review Tribunal member’s decision is unfair...
The one ground of the amended show cause application is:
1. The Tribunal [placed] on onus on the applicant to call a witness when there was no such onus in law.
Ground 1 of the application
The first ground raised by the applicant was that the Tribunal did not believe the applicant's claims that he was a Falun Gong practitioner since 2003, that he had practised in private with his wife, and that he feared persecution if he returned to China.
The transcript of the Tribunal proceedings has not been put before the Court by the applicant on the point. The applicant also did not file any written submissions to elaborate on this ground of review.
The Tribunal set out in detail in its findings and reasons why it did not consider that the applicant was a truthful, reliable or credible witness in relation to these matters, including what the Tribunal characterised as inconsistencies in his evidence. The Tribunal therefore was not satisfied that the applicant had a well-founded fear of persecution, as claimed.
I am satisfied that the Tribunal’s assessment of the evidence, including its adverse findings as to the credibility of the applicant, were open to it on the evidence and that it performed the task required of it in accordance with law. In this regard, it reached the conclusion that:
…the totality of the applicant’s oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose. In reaching this view, the Tribunal has had regard to the inconsistencies between his written and oral claims and the unsatisfactory manner in which he has addressed the similarities between his case and [SZLAR’s] case and the contradictory evidence that the latter provided in relation to their background and history of association, as described above (CB 129).
The Tribunal’s conclusion that the applicant was not a witness of credit was a finding of fact, not open to review by this Court. As the Full Federal Court observed in NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
Also, merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137]
An exception, known as "Wednesbury unreasonableness", applies where it can be demonstrated that the factual conclusions reached are so unreasonable and so unfair that no reasonable person could have made them. As stated by the High Court in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power.
The High Court further observed, at 35, that:
Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.
I consider that the Tribunal made clear and well reasoned findings in reaching its conclusion that the applicant was not a truthful, reliable or credible witness, and having rejected all the applicant's claims on that basis, that the applicant was not a person to whom Australia has protection obligations. I do not consider that this is a case where "Wednesbury unreasonableness" can be demonstrated.
In conclusion, the applicant is effectively seeking to challenge the Tribunal’s factual findings and to invite the Court to undertake impermissible merits review, which is not the function of this Court (see further under Ground 2, below).
Accordingly, I do not consider that Ground 1 raises any arguable ground of jurisdictional error.
Ground 2 of the application
The second ground raised by the applicant was that the Tribunal incorrectly thought that the reason for the applicant's participation in Falun Gong activities in Australia was to strengthen the applicant's case.
The Tribunal in its findings and reasons (CB 129-130) acknowledged that the applicant had a good knowledge of Falun Gong, stated that it had considered supporting photographs and letters the applicant had submitted, but concluded that:
Given the applicant’s lack of credibility, the Tribunal is not satisfied that the applicant’s conduct in Australia has been otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. Accordingly, the Tribunal must disregard the conduct engaged in by the applicant in Australia pursuant to s.91R(3) of the Act.
The transcript of the Tribunal proceedings has not been put before the Court by the applicant on the point. The applicant also did not file any written submissions to elaborate on this ground of review.
The second ground involves a finding on a question of fact. As pointed out in relation to Ground 1 above, it is not the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 at 272; NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]. In this regard, the Full Court in NAHI v MIMIA [2004] FCAFC at [10] observed that:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Also, as stated in ground 1 above, merely because the applicant disagrees with the Tribunal’s factual conclusions, or the Tribunal makes a wrong finding of fact, does not amount to a reviewable error of law: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
Furthermore, the Tribunal's conclusion concerning the reason for the applicant's participation in Falun Gong activities in Australia was not so unreasonable and so unfair that no reasonable person could have made it, thereby attracting "Wednesbury unreasonableness": Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.
Accordingly, I do not consider that Ground 2 raises any arguable ground of jurisdictional error.
Ground 3 of the application
The third ground raised by the applicant was that the Tribunal decision was unfair.
It is important to note at the outset, that the applicant has not provided any particulars to explain how the Tribunal decision is said to be unfair. Further, as has already been noted, no evidence by way of the transcript of the Tribunal proceedings has been put before the Court by the applicant on the point. The applicant also did not file any written submissions to elaborate on this ground of review.
In the absence of any particulars as to the alleged unfairness, I have considered the general question of whether the Tribunal complied with its statutory procedural fairness obligations pursuant to s.425(1) and s.424(A), given that the applicant is not entitled to common law procedural fairness: s.422B of the Act.
These procedural fairness requirements deal with the process of decision-making, not the merits of the decision. As indicated by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
I am satisfied, for the reasons set out below, that the Tribunal complied with the procedural fairness requirements of s.425(1) (as considered by the High Court in SZBEL at [33]-[48]), in that it:
·identified to the applicant the determinative issues under review related to his credibility, and
·gave the applicant a sufficient opportunity to give evidence, and to make submissions, about these determinative issues
before it reached its conclusions in relation to the decision of the delegate under review.
The obligation on the Tribunal is to identify to the applicant the critical issues or factors on which the decision is likely to turn. As stated in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [25]:
…it is sufficient if the gravamen or substance of the issue or factor is brought to the [applicant’s] attention; or that the [applicant] is on notice of its ‘essential features’.
It is apparent from the Tribunal’s decision record (CB 118-123) and the s.424A letter of 2 May 2007 (CB 104-106) that the Tribunal clearly identified to the applicant that his credibility on a range of determinative issues, (referred to by number in the s.424A letter and in its subsequent findings and reasons (CB 127-130) was important in its determination of his claims. These issues included:
·the applicant’s residential and work history in China
·the applicant’s association with SZLAR, both in China and Australia
·the handwriting on the protection application, compared with the handwriting on the protection application for [SZLAR], and the similarity of content of the letters in support of the two applications
·the failure of the applicant to call SZLAR as a witness, even though, because of their alleged prior association in China as well as Australia, that person would have been in a position to give evidence on matters material to the determination
·whether the applicant was being “monitored” by the Chinese police
·facts regarding the applicant’s involvement in Falun Gong in Australia, in particular that certain photographs provided by the applicant may have been staged.
I am also satisfied (taking into account the s.424A letter of 2 May 2007, with the invitations to comment on information referred to in it and/or provide further information, and from the summary in the Tribunal decision record of the questions asked of, and the evidence given by the applicant at the Tribunal hearing), that the Tribunal gave the applicant a sufficient opportunity to give evidence, and to make submissions, about each of these determinative issues arising in relation to the decision under review: (SZBEL at [33]-[48]).
In this regard, the Tribunal put a number of matters to the applicant, asked him a number of questions and put to him a number of inconsistencies, including in relation to his residential and work history; his association with SZLAR; and his claim that he was "monitored' by Chinese authorities from 2003. It further put to the applicant in the s.424A letter the particulars of the material inconsistencies that are referred to in the Tribunal's subsequent findings and reasons (although it would seem that the Tribunal was not required to do so: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]).
I have also considered whether the Tribunal has complied with s.424A of the Act, applying the approach of the Full Federal Court in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [31]-[44] concerning the need to provide to the applicant particulars of the information and a sufficient explanation of the relevance of the information.
As discussed above, I am satisfied that the Tribunal in its s.424A letter (CB 104–106):
·set out clearly and with sufficient particularity the information regarding the credibility of the applicant’s claims that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review, namely that the applicant had not been truthful or credible and the Tribunal may not believe his claim of fear of persecution if he were returned to China
·clearly explained the relevance of this information to the review in a manner that the applicant could understand, and the consequences of it being relied on in affirming the delegate’s decision, and
·invited the applicant to comment on or respond to the information.
I am therefore satisfied that the Tribunal complied with its statutory obligations under s.424A and s.425(1) of the Act in according the applicant procedural fairness in the conduct of the review.
Accordingly, I do not consider that Ground 3 raises any arguable ground of jurisdictional error.
Ground 1 of the amended application
The ground raised by the applicant in the amended application was that the Tribunal placed on onus on the applicant to call a witness when there was no such onus in law. Whilst the applicant fails to particularise this ground, it is reasonable to assume that he is referring to the person SZLAR as the witness in this context.
It is well settled that there is no onus of proof generally in administrative matters. However, although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal is entitled to ask the applicant questions about his involvement with SZLAR and to compare his evidence and material with that of SZLAR, which it has done in this case. Under s.424 of the Act it is entitled to "get any information that it considers relevant". The Tribunal is also not bound by the rules of evidence: s.420(2)(a) of the Act.
Also, the applicant could have requested the Tribunal to call SZLAR as a witness to give evidence at the hearing: s.426(2). In this case, the applicant stated that he did not wish to call anyone as a witness (as indicated by the applicant ticking the "No" box to questions 2c and 2d, concerning an applicant calling witnesses or bringing someone to the hearing, on the Response to Hearing Invitation form: CB 90).
In these circumstances, the Tribunal was entitled, indeed obliged under s.424A to put its concerns about the applicant’s involvement with SZLAR directly to him for his comment or response. It was obliged to put to him under s.424A(1):
a)clear particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review; and
b)ensure … that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.
This is precisely what the Tribunal has done in the present case.
Having received the applicant’s Response to the s.424A letter (CB 124-125), I am satisfied that the Tribunal carefully considered this material together with its comparison of the evidence of the applicant and SZLAR at their respective hearings. As stated above under ground 3 of the application, I am satisfied that there has been no breach by the Tribunal of s.424A in this case.
Having complied with its statutory obligations under s.424A, it was a matter for the Tribunal what inferences it drew from the material before it as long as any such inferences were reasonably open to it on that material. I consider that in this case it was reasonably open to the Tribunal on all the relevant evidence and material before it on this point, to draw the conclusion or inference that the applicant’s failure to call SZLAR as a witness indicates that SZLAR would not have supported his claim.
For these reasons, I do not consider that the Tribunal placed any onus of proof on the applicant in this case, rather that it gave him the opportunity to respond to material it was bound to put to him under s.424A of the Act and from which it might otherwise make an adverse finding.
Accordingly, I do not consider that Ground 1 of the amended application raises any arguable ground of jurisdictional error.
Conclusion
The Court finds that neither the application nor the amended application raise an arguable case for the relief claimed.
Pursuant to rule 44.12(1)(a) the Federal Magistrate Court Rules 2001, the application before this Court is dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 8 February 2008
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