SZLFP v Minister for Immigration
[2008] FMCA 864
•19 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLFP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 864 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) ss.91, 91R, 424A |
| Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 |
| Applicant: | SZLFP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2620 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 19 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2620 of 2007
| SZLFP |
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 3 July 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australian in January 2007 and applied for a protection visa. In a statement in support of his protection visa application he claimed to fear persecution based on his practise of Falun Gong in China. He claimed he started to practise Falun Gong “from the end of 1998”. He claimed that after he went to Beijing to support Falun Gong he was threatened, sent to classes and detained and interrogated by the police twice in a two month period. He claimed that he lost his employment in 2000 and that in October 2006 the police accused him of attending illegal Falun Gong activities and being a leader of an illegal organisation. He had to pay money to obtain his release from the police and to obtain a passport to travel to Australia.
The application was refused by a delegate of the first respondent who found that the applicant’s claims were devoid of detail and lacking substance and that there was no evidence to suggest that the applicant was a genuine Falun Gong practitioner or that he had been practising Falun Gong in Australia. The delegate referred to country information in relation to departure procedures from China and found that the applicant's freedom of movement had not been restricted as he had been issued with a passport.
The applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing. In its reasons for decision the Tribunal outlined the evidence given by the applicant at the Tribunal hearing, including dates on which he claimed certain events had occurred. It described the issues that it raised with the applicant in relation to aspects of his claims and his evidence about Falun Gong, its history, philosophy and events which preceded and followed the banning of Falun Gong in China.
The Tribunal's reasons for decision are the only evidence before the Court of what occurred in that Tribunal hearing.
The Tribunal recorded that the applicant presented two documents in Chinese which he claimed were a record of his detention in 2006 and an example of the Falun Gong material that he had been found distributing. The document, said to be an official record of the applicant’s detention for suspected involvement in a cult organisation, was dated 1 October 2006 and stated that he was to be detained from 1 to 20 October 2006. The Tribunal recorded that it put to the applicant its concerns about the ease of obtaining fraudulent documentation in China and the fact that there had been no mention of this document in the protection visa application. It also put to the applicant that the document's content did not match his account of events. He had claimed that he had been arrested and refused release until he gave the authorities certain names. However the document which was dated 1 October 2006 stated he was to be detained until 20 October 2006, which indicated that the detention period was known on the day of his alleged arrest. The Tribunal put to the applicant that this contradiction meant that it had to consider whether the document had been fabricated to support his story that he was arrested.
The Tribunal was not satisfied that the applicant was a Falun Gong practitioner in China. It observed that at the hearing he claimed that he had first been arrested in October 1998 when he went to Beijing to protest against what he said was the banning of Falun Gong as well as on three other occasions (late 1998, early 1999 and October 2006) and that at one stage in the hearing he stated that the demonstration which led to the banning of Falun Gong took place in April 2001.
The Tribunal had regard to independent country information, which it accepted, indicating that Falun Gong was banned in China in July 1999 following a major demonstration in Beijing in April 1999. The Tribunal found that had the applicant truly been a Falun Gong practitioner in the late 1990s as claimed it would have expected him to have been fully aware of the circumstances which led to the banning of Falun Gong and its timing.
The Tribunal considered that the applicant’s claim at the end of the hearing that he had become forgetful as he was beaten up in 1998 was an attempt to explain away his lack of knowledge of the timing of key events. It did not accept this claim. As these particular events were so significant for Falun Gong practitioners it did not accept that a practitioner might forget the details of such incidents to the extent of being unable to recall with accuracy the year in which they occurred.
As Falun Gong was not banned until July 1999 the Tribunal did not accept that the applicant went to Beijing in 1998 to protest its banning. Hence, it did not accept that he was arrested in 1998 or 1999. It found that if he lost his job in 2000 it was not because of any association with Falun Gong. The Tribunal gave little weight to the document in support of the applicant’s claim he was arrested in October 2006 because, as discussed at the hearing, its content did not match his claims about the circumstances of his detention. It also had regard to the ease with which such documents could be fabricated.
The Tribunal also found that if the applicant was a genuine Falun Gong practitioner who sought to leave China to escape persecution, it would have expected him to have continued his practise of Falun Gong in Australia. However his evidence was that he had not practised Falun Gong for at least nine months which meant that he had not practised Falun Gong at all in Australia.
As it outlined in its account of the evidence at the hearing, the Tribunal was satisfied that the applicant had exhibited some knowledge of Falun Gong. However it found the knowledge that the applicant demonstrated was easily obtainable from readily accessible sources and that his knowledge of the practicalities of the Falun Gong exercises was deficient in a number of ways given the fact that the Tribunal found the applicant’s knowledge of Falun Gong to be quite superficial and in light of his claim that Falun Gong was banned at a time when it was still legal, it found that he was not a Falun Gong practitioner in China and that he was not arrested because of any association with Falun Gong. Further, given the limited level of the applicant’s knowledge of Falun Gong and the inference that he had not practised Falun Gong at all in Australia, the Tribunal found that were he to return to China in the reasonably foreseeable future he would not seek to practise Falun Gong and hence would not come to the adverse attention of the authorities.
As the applicant had made no claims other than those based on his alleged involvement in Falun Gong, the Tribunal found that he did not have a well-founded fear of persecution for a Convention reason in China. The Tribunal affirmed the delegate's decision.
The applicant sought review by application filed in this Court on 23 August 2007. He relies on an amended application filed on 31 October 2007. He did not file written submissions. Nor did he file and serve any transcript of the Tribunal hearing, despite being given the opportunity to do so at the directions hearing. At the hearing today he made oral submissions.
Bias
The first ground in the amended application is that the Tribunal “had bias” against the applicant and made a decision on his application based on the officer's “assumption”.
Actual bias is a serious allegation which must be distinctly made and firmly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [530]).The material before the Court does not establish actual bias in the sense of pre-judgment or otherwise. The reasons for decision indicate that the applicant was given the opportunity to give evidence and present arguments in relation to the decision under review at the Tribunal hearing. The Tribunal account of what occurred at that hearing is not supportive of the applicant's claim of bias.
No inference of bias or prejudgment can be drawn from the mere fact of the adverse findings in the Tribunal reasons for decision (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
For the sake of completeness I note also that there is nothing in the material before the Court to support any contention of apprehended bias from the perspective of the properly informed, fair-minded lay observer (see Refugee Review Tribunal ex parte H (2001) 75ALJR 425). It is well established that it would be a rare and extreme circumstance that bias on the part of the Tribunal was established simply by reference to the Tribunal reasons. This is not such a case.
I note that the applicant did not take issue with any particular aspect of the conduct of the Tribunal hearing. The evidence before the Court does not establish his claim of bias, whether actual or apprehended, or that the Tribunal conducted its review with an absence of good faith.
The applicant also alleged that the Tribunal made its decision based on the Tribunal member's “assumption”. This contention does not establish jurisdictional error. The applicant was unsuccessful before the Tribunal because it could not reach the requisite state of satisfaction as to the criteria for the class of visa for which he applied. It is for an applicant to put his claims before the Tribunal and for the Tribunal to determine whether or not it is satisfied that the applicant meets the criteria for the class of visa for which he has applied.
The Tribunal decision was not based on assumptions as distinct from a consideration of the applicant's claims and its lack of satisfaction that he was a Falun Gong practitioner given his limited and deficient knowledge of Falun Gong and his evidence in relation to the timing of events. These findings (which were made on the basis of the applicant’s evidence) deficiencies and inconsistencies in that evidence and other information, were open to the Tribunal on the material before it.
The Tribunal was not obliged to accept the applicant's claims at face value. As submitted for the first respondent no jurisdictional error is revealed merely because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied as to the applicable criteria (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225). This ground is not made out.
Section 424A issue
The second ground in the amended application is that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth). It also appears to be a more general contention that the Tribunal was under an obligation to notify the applicant in writing of the reasons for its decision prior to making its decision.
While the amended application refers generally to the provisions of s.424A and the decisions in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, it does not particularise the information which is said to give rise to an obligation under s.424A, except for a general claim that the Tribunal based its findings on the information or lack of information contained in the applicant's protection visa application.
It is apparent from the Tribunal reasons for decision that while it set out the claims made in the application for a protection visa application, its reasons for decision were (and in the requisite sense “would be”) based on the evidence given by the applicant at the Tribunal hearing and its assessment of independent country information, as set out above.
Insofar as the Tribunal's findings were based on oral evidence that the applicant gave at the hearing and the documents that he read to the Tribunal, such material is within the exception in s.424A(3)(b) of the Act. To the extent that the Tribunal relied on independent country information it is apparent from its decision that this was general independent country information within the exception in s.424A(3)(a) of the Act.
Insofar as the ground asserts generally that a Tribunal is under an obligation to put its provisional reasoning to an applicant, there is no such obligation under s.424A of the Act. It is apparent from the Tribunal account of what occurred in the Tribunal hearing that it put to the applicant its concerns in relation to the applicant's claims and independent country information and in relation to the document he provided at the hearing that purported to be an official record of his detention (see SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152)
Insofar as the contention is that the Tribunal was under an obligation to put to the applicant its reasoning, in particular in relation to his lack of knowledge and inconsistencies in his evidence, the concept of "information" in s.424A (1) does not extend to the Tribunal's subjective appraisals, thought processes or determinations. Nor, as Finn and Stone JJ stated in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [477], 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” (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). No failure to comply with s.424A of the Migration Act is established.
Other Issues
In oral submissions the applicant contended that the Tribunal did not consider his case according to the Migration Act, that it did not properly understand his reasons and that it did not assess the persecution he might face on return to China. He repeated his claim of bias and that the decision was based on assumptions.
There is nothing in the evidence before the Court to indicate that the Tribunal failed to have regard to relevant considerations or to address the integers of the applicant’s claims. Nor is there anything to support the contention that the Tribunal did not understand the applicant’s reasons, in the sense of his claims or explanations. The fact that the Tribunal did not accept his claims is not such as to establish jurisdictional error. It has not been established that the Tribunal failed to consider or misunderstood the applicant's claims.
It is contended by reference to s.91R of the Act that the Tribunal should have considered what would occur if the applicant were to return to China. Section s.91R(2) details instances of serious harm. The Tribunal considered but rejected the applicant's claims of past harm, finding that he was not arrested because of any association with Falun Gong. The claim that the Tribunal did not assess the persecution that the applicant might face on return to China is not made out. As set out above, the Tribunal found that the applicant was not a Falun Gong practitioner in China. Given the limited level of his knowledge of Falun Gong and the fact that it could be inferred that he had not practised Falun Gong in Australia it found that if he were to return to China he would not seek to practise Falun Gong and would therefore not come to the adverse attention of the Chinese authorities. It was in those circumstances, and in the absence of any other claims, that the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to China.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
Costs
The applicant has been unsuccessful. It is appropriate that he meet the costs of the first respondent. The amount sought of $2,700 is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: