SZLBS v Minister for Immigration

[2008] FMCA 183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 183

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proved – no breach of s.424A – Tribunal does not need to have evidence contradictory of the applicant’s claim before it can affirm delegate’s decision.

Migration Act 1958, ss.36, 65, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Johnson v Johnson (2001) 201 CLR 488
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicant: SZLBS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2219 of 2007

Judgment of: Cameron FM

Hearing date: 1 February 2008

Date of Last Submission: 1 February 2008

Delivered at: Sydney

Delivered on: 1 February 2008

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2219 of 2007

SZLBS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China where, she claims, she practised Falun Gong.  She alleges that while in China she was responsible for printing promotional leaflets and that this subsequently led to her being the target of police investigation. She alleges that she suffered mental and physical torture. The applicant arrived in Australia on 25 January 2007.

2. The applicant claims to fear persecution in China because of her practice of Falun Gong.

3. After her arrival in Australia, the applicant lodged an application for a protection visa.  This was refused by the Minister’s delegate on 24 February 2007.  The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 6 of the Tribunal’s decision (Court Book (“CB”) 60 – 62). Relevantly, they are in summary:

   a)the applicant worked in a printing factory in China. In 1997 a senior Falun Gong member asked the factory to print some promotional leaflets;

   b)the applicant and the senior member became friends. Two months later the applicant became a formal Falun Gong member;

   c)the applicant began to practise Falun Gong and was in charge of printing promotional documents. She also helped to “develop” new members;

   d)in July 1999 the Chinese government banned Falun Gong and the applicant became a target for investigation because her factory leader knew of her Falun Gong activities;

   e)the applicant was warned and sent to brainwashing classes “many times”. She suffered mental and physical torture because of her beliefs;

   f)the police came to her workplace as part of their investigation and the applicant subsequently lost her job. The police kept harassing her after her dismissal and on one occasion she was taken to a police station and questioned for two days;

   g)in November 2006 local police discovered that the applicant was practising Falun Gong. She used a large sum of money and, with the assistance of a friend of her brother-in-law, obtained a passport; and

   h)since arriving in Australia the applicant has been to Hyde Park twice for Falun Gong activities.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).  The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal was not satisfied that the applicant was a Falun Gong practitioner in China or that she a held genuine belief in, or commitment to, Falun Gong, noting that:

   i)she was unable to do the exercises and was not aware of their purpose;

   ii)she claimed that she did not exercise or practise often and told the Tribunal that she would not practise Falun Gong or get involved in their activities if she returned to China;

   iii)she could not tell the Tribunal what lessons Zhuan Falun taught even though she claimed to have participated in a study group; and

   iv)the applicant demonstrated an inadequate knowledge of Falun Gong practices;

   b)in light of the fact that it was not satisfied that the applicant was a genuine Falun Gong adherent, the Tribunal was not satisfied that the applicant was subject to brainwashing or interrogation or that she was harassed by authorities;

   c)the Tribunal found that the applicant was not of adverse interest to the Chinese authorities nor did she have a fear of being the subject of such interest, noting that despite her claim that the police had her on record, she was not questioned or prevented from leaving China on a passport issued in her own name; and

   d)the Tribunal disregarded the applicant's claims regarding her activities in Australia, having formed the view that such activities were engaged in for the purpose of strengthening her claim for refugee status and consequently the Tribunal was not satisfied that on the evidence before it the applicant had a well-founded fear of being persecuted at that time or in the reasonably foreseeable future. 

Proceedings in this Court

1. In her amended application filed in these proceedings the applicant raised the following asserted grounds of review:

   a)bias on the part of the Tribunal;

   b)failure by the Tribunal to assess her claims; and

   c)breach of s.424A of the Act.

2. In her oral submissions today the applicant made the following additional allegations:

   a)the Tribunal did not understand her claim properly; 

   b)the Tribunal rejected her claim without sufficient supporting material; and

   c)the Tribunal did not assess her chances of persecution upon return to China.

Bias

1. The applicant has not identified whether she alleges actual bias or apprehended bias on the part of the Tribunal.  As to actual bias, the applicant would need to demonstrate that the Tribunal was guilty of pre-judgment by being so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments might be presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. The test for apprehended bias in relation to proceedings of the Tribunal might be expressed to be a test by reference to whether a hypothetical, fair minded, lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question required to be decided: Johnson v Johnson (2001) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

2. Whichever is the allegation being made by the applicant it must be supported by cogent evidence.  An allegation of bias is a very serious allegation and the evidence and arguments advanced in support must be appropriately persuasive. No evidence has been adduced by the applicant to support this allegation and thus it cannot be made out whether in terms of actual bias or apprehended bias. 

3. I should also note before passing from this topic that a consideration of the Tribunal's decision record would not support a finding of bias on the part of the Tribunal. 

Failure to assess claim

1. No particulars have been provided to support this allegation and the summary of the Tribunal's decision record, which has been set out earlier in these reasons, shows that the Tribunal did in fact do exactly what the applicant alleges it did not do.  It is clear that the Tribunal set out what the applicant's claims were, whether made in documentary form to the department or orally at the Tribunal hearing, and proceeded to consider what the applicant claims to have suffered and to fear. 

2. The Tribunal considered the applicant's allegations based both on the evidence she provided and the arguments she made as well as with independent country information to which the Tribunal had access.  Drawing on those sources, the Tribunal reached a reasonable conclusion in respect of the claims and allegations made by the applicant. Consequently, this asserted ground of review cannot be made out. 

Breach of s.424A

1. No particulars have been provided in respect of this alleged breach. The Tribunal's decision reveals that the information upon which it relied when deciding to affirm the decision of the delegate was information provided to it by the applicant whether by way of oral evidence at the hearing or the provision of her passport to the Tribunal at its hearing and independent country information to which reference has already been made. Independent country information and information which is provided by an applicant to the Tribunal for the purposes of a review application fall within the exceptions to the operation of s.424A(1) found in s.424A(3). Consequently, in the circumstances of this application the Tribunal had no obligation under s.424A(1) to provide a notice which might otherwise have been required under that subsection and this asserted ground of review is not made out.

Tribunal did not understand claim properly

1. This allegation is also not particularised.  Moreover, a consideration of the Tribunal's decision record shows that it cannot be made out on the facts. In reality, this claim is simply a particular of the earlier allegation that the Tribunal failed to assess the applicant's claim. For the reasons given in relation to that asserted ground of review, this one must also fail. 

Claim rejected without materials

1. This allegation assumes that the Tribunal must have evidence contradictory of the applicant's allegations before it can affirm the delegate's decision. However, that misunderstands the Tribunal's role and its duty. The Tribunal's role is to determine whether it is satisfied that the applicant meets the criteria for a protection visa and if it is so satisfied, must set aside or amend the delegate's decision. But if it is not so satisfied it must affirm the delegate's decision. So much is clear from s.65 and 36 of the Act.

2. Consequently the issue is: was the Tribunal satisfied on the material before it that the applicant met the criteria for a protection visa?  If the evidence before it did not meet that threshold, then the Tribunal had to affirm the delegate's decision.  It was not a question of having evidence to support an affirmation of the delegate's decision.  In this case it was simply a matter of there being insufficient persuasive materials before the Tribunal for it to be satisfied that the applicant met the criteria for a protection visa. 

Tribunal did not assess chance of persecution

1. This final asserted ground of review is also really only a particular of the allegation that the Tribunal failed to assess the applicant's claim.  The Tribunal's decision record shows that it did consider this issue both generally and, under the heading “future harm”, specifically. Therefore, on the facts, it cannot be made out and for the reasons already expressed in relation to the second asserted ground of review, this ground must also fail. 

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  21 February 2008