SZLEP v Minister for Immigration
[2008] FMCA 416
•6 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLEP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 416 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proven – not necessary for Tribunal to refer in its reasons to every piece of information before it – Tribunal not required to hold further hearing following receipt of response to s.424A notice issued after the hearing. |
| Migration Act 1958, ss.91R, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Johnson v Johnson (2000) 201 CLR 488 |
| Applicant: | SZLEP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2498 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 March 2008 |
| Date of Last Submission: | 6 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2498 of 2007
| SZLEP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a Falun Gong practitioner. She alleges that while in China she petitioned regarding Falun Gong and that this subsequently led to her being physically and mentally tortured. The applicant left China and arrived in Australia on 25 January 2007.
The applicant claims to fear persecution in China because of her Falun Gong affiliation.
After her arrival in Australia, the applicant lodged an application for a protection visa. That application 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.
In these judicial review proceedings the Court’s 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.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4, 7 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 59, 62 – 65). Relevantly, they are in summary:
Protection visa application
In her protection visa application, the applicant made the following claims:
a)she became a Falun Gong member in 1998 before it was banned and spent most of her time being involved with Falun Gong. Within four months she became a very senior member;
b)in 1999 the applicant and other Falun Gong members presented the government with a petition. She and others suffered physical torture afterwards;
c)she was forced to attend brain washing classes many times and suffered physical and mental torture; and
d)because of her involvement in Falun Gong and in order to protect her possible future husband and family, she dared not get married.
Tribunal hearing
At the hearing before the Tribunal, the applicant made the following additional claims:
a)someone assisted her in preparing the application and this person may have made some errors in translating her information into English;
b)she was introduced to Falun Gong by a relative of her mother. The relative was an active and senior member of Falun Gong;
c)in July 1999 the applicant was picked up by the local police, questioned about her mother’s relative and held for 20 hours. The police continued to question her for about a month after this. At this time, they were unaware that she practised Falun Gong;
d)at the end of 1999 the police took her away and forced her to confess. They then forced her to join a class for three months where she was shown anti-Falun Gong videos. She has not been detained since 1999, however, she was forced to report on the fifteenth of every month and she felt that she was under surveillance;
e)she married in 1996 and divorced in 1999;
f)since coming to Australia, the applicant has come to know two Falun Gong practitioners with whom she occasionally practises, though her capacity to do the exercises is seriously limited by a back injury; and
g)she was never a “senior member” of Falun Gong, the claim to this effect being a mistake by the person who assisted her to complete the form.
The Tribunal’s decision and reasons
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 found that the applicant was not a credible witness, noting that:
i)while there may have been translation problems with respect to her protection visa application, the Tribunal did not accept that most aspects of her application would be inaccurate;
ii)the applicant had a very superficial knowledge of Falun Gong despite her claim to have been an active practitioner;
b)the Tribunal found that the applicant had only very limited contact with two practitioners in Australia;
c)the Tribunal was not satisfied that the applicant
i)practised Falun Gong in the past or would do so in the future; or
ii)was detained or suffered any ill-treatment at the hands of the authorities by reason of her Falun Gong practices;
noting that the only evidence of any persecution came from the applicant herself; and
d)the Tribunal was not satisfied that the applicant was of interest to the Chinese authorities at the time of her departure for Australia, noting that she was able to leave China without any difficulty.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1)The Tribunal had bias against me and did not consider the information provided in response of the s.424 letter. Especially the explanation about the translation errors. The Tribunal failed to consider my application according to law.
2)The Tribunal failed to consider the claims of my application, the Tribunal misunderstood my claims.
3)The Tribunal failed to assess the chance of my persecution on my return to China.
Bias
The first asserted ground of review has three elements. The first of these is that the Tribunal was biased against the applicant. It is not apparent whether the applicant alleges actual or apprehended bias against the Tribunal as the allegation is not particularised.
The test of actual bias requires the applicant to show that the Tribunal was 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) 178 ALR 421. The test for apprehended bias requires the applicant to show that a fair minded lay person properly informed as to the nature of the proceedings, the matters at issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring any partial and unprejudiced mind to the resolution of the question it is required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425.
In this case no evidence has been adduced by the applicant in support of this allegation. The only evidence before the Court which touches upon the allegation is what is contained in the Tribunal’s decision record. An allegation of bias is a serious one to make and must be supported by clear and cogent evidence. That is not the case here and there is no basis upon which I can find that this allegation is made out. There is nothing in the Tribunal record to suggest that the Tribunal’s mind was affected in any way which might lead to a conclusion that either actual bias or apprehended bias affected its decision or its approach to the review application.
Section 424A
The second element of the first asserted ground of review is an allegation that the Tribunal did not consider information provided by the applicant in response to the Tribunal’s s.424A notice. In this connection it should be noted that the Tribunal’s 424A notice and the applicant’s reply were reproduced at pp.9 – 10 of the Tribunal’s decision (CB 64 – 65). The fact that the applicant’s response was not referred to in the reasons for the Tribunal’s finding does not mean that it was not considered, only that it did not form the basis for findings reached by the Tribunal.
It should be noted that it is not necessary for the Tribunal to refer to every piece of information before it or to give a line by line refutation of the evidence given by the claimant: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. The fact that the Tribunal does not refer to every piece of information before it in its reasons for decision does not mean that the information was not considered, merely that the Tribunal did not rely on that information to reach any of its findings.
In this case, the exposition by the Tribunal of the correspondence passing between it and the applicant is clear enough evidence that the Tribunal considered that material. The fact that in that part of its decision under the heading “Findings and Reasons” it did not mention that correspondence or the contents of it merely demonstrates that it did not form the basis of any of the Tribunal’s findings.
To the extent that the applicant says that the Tribunal failed to consider her explanation about the translation errors in her protection visa application, it should be noted that the Tribunal accepted that there may have been such errors. Whether this acceptance arose out of the applicant’s oral evidence at the Tribunal hearing or her response to the
s.424A notice does not matter. The point is that the applicant’s explanation was considered.
Today in addresses the applicant submitted that the Tribunal had erred because it had not accepted her explanations which were contained in her letter responding to the s.424A notice. That would appear to be the case but there is no error in the Tribunal reaching such a conclusion. The assessment of the evidence and findings of fact are matters for the Tribunal alone and are not matters which are susceptible to review in judicial review proceedings such as these. If the Tribunal did not accept the applicant’s explanation contained in her letter, then this was open to it on the evidence before it, particularly in light of its findings concerning the applicant’s credibility.
Tribunal failed to consider my application according to law
The third element of the first pleaded ground is to the effect that the Tribunal failed to consider the applicant’s application according to law. This allegation is not particularised. Although too much should not be expected of unrepresented parties in terms of the formalities of allegations and particulars, nothing has been advanced in writing or orally to give this ground any real substance.
My own review of the Tribunal’s decision does not satisfy me that this ground has any merit. It appears that the Tribunal met all the procedural criteria for a valid decision. It is also clear that it gave proper consideration to the evidence before it and that it reached a decision which was open to it.
In addresses today the applicant submitted that the Tribunal had not given her a chance to explain her response to its s.424A notice. No error is disclosed by the Tribunal not holding a further hearing following receipt of that letter. The applicant’s opportunity to explain the matters raised by the s.424A notice was her letter in response and anything that she wanted to put to the Tribunal should have been included in that letter. It might also be noted that the letter which is reproduced at CB 51 does not indicate that the applicant sought an opportunity to present any further information to the Tribunal.
For all these reasons the allegations made in the first paragraph of the amended application and the related issues raised in argument today do not disclose jurisdictional error on the part of the Tribunal.
Tribunal failed to consider my claims
The second pleaded ground alleges that the Tribunal failed to consider the applicant’s claims, and in any event misunderstood them. The applicant’s claims were not complex and presented no comprehension difficulties. A consideration of the Tribunal’s decision reveals that it was under no misapprehension as to what the claims were. Moreover, as a reading of the Tribunal’s decision makes clear, it is patent that the applicant’s claims were considered by the Tribunal. Consequently, this asserted ground of review is not made out.
Tribunal failed to assess my chance of persecution
The third pleaded ground alleges that the Tribunal failed to assess the chance of persecution of the applicant were she to return to China. It must be observed that whether there was a real chance of persecution for a Convention reason was considered by the Tribunal, however, it did not accept the truthfulness of the applicant’s allegations. In order to assess the chance of persecution the Tribunal had to assess the credibility of the applicant’s claims. In this case, it did not accept that the applicant was a credible witness and as a result did not accept the claims which she made.
The Tribunal clearly understood the test it had to apply as a consideration of p.3 of its decision record discloses. Being alive to the appropriate test, the Tribunal proceeded to consider in light of that test the evidence which the applicant gave to it. Having considered the applicant’s evidence, it was not satisfied that she satisfied the test.
In addresses today the applicant alleged that the Tribunal did not consider her case in accordance with s.91R of the Act. However, p.3 of the Tribunal’s decision record reveals that it was well aware of
s.91R. Consequently, its conclusion that it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason must be understood to incorporate an understanding of the word “persecution” and the criteria for a well-founded fear of persecution as set out in the Convention as they are affected by s.91R. Consequently, the final asserted ground of review is not made out.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 April 2008
0
5
1