SZLJP v Minister for Immigration
[2008] FMCA 568
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 568 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proven – Tribunal decision based on logical conclusions drawn from the evidence, not assumptions – no breach of s.424A – Court cannot review Tribunal’s fact finding – Tribunal does not need case against an applicant in order to affirm delegate’s decision – no breach of s.425. |
| Migration Act 1958, ss.65, 91R, 424A, 425 |
| SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZLJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2981 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 April 2008 |
| Date of Last Submission: | 24 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2981 of 2007
| SZLJP |
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, he claims, he was investigated because of his political opinions. He alleges that while in China he criticised government policies and that this subsequently led to him being questioned by police and his local street committee.
The applicant claims to fear persecution in China because of his political opinions.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 19 May 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.
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 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 73 – 74). Relevantly, they are in summary:
Protection visa application
In his protection visa application, the applicant made the following claims:
a)he did not like living in a one-party dictatorship;
b)his family suffered when he was a child because of his father’s political opinions. His father was sent to the countryside for brainwashing for three years;
c)during the pro-democracy demonstrations in 1989, the applicant supported the students and went to Tiananmen Square to join the demonstrations; and
d)prior to coming to Australia he was investigated about his political opinions and his support for Falun Gong. He came to Australia as he was worried for his safety.
Tribunal hearing
At the hearing before the Tribunal, the applicant made the following additional claims:
a)sometimes he could not control himself and complained of the policies of the government. These comments were reported to the local police and he was visited by the police and the local street committee;
b)subsequently he had the feeling that he was being monitored. His family and a friend in the security service told him to hide abroad;
c)he criticised the government about their approach to the students in Tiananmen Square, though the event had not affected him personally;
d)the factory where he worked closed down and although he had lost his job as a consequence, middle level leaders were kept on salary;
e)after the factory stopped production the applicant “just chatted [by] the roadside” and this attracted the attention of the police and neighbourhood committee;
f)the applicant’s local street committee visited him about two months before he travelled to Australia and the police visited him about two months before that;
g)he also criticised the cultural revolution and the family classification system which had resulted in him receiving no benefits as a youth; and
h)if he returns to China he will not be able to control himself – he will make comments and will be in trouble.
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 claims made by the applicant had no factual basis and were concocted to support a claim for protection. In reaching this conclusion the Tribunal noted the following:
i)there was nothing in what the applicant said about his experience of the family classification system to qualify it as persecution, given that he was educated and had been in almost continuous employment;
ii)it was not credible that he had been expressing sympathy for the students of Tiananmen Square for almost 20 years in terms which only attracted the unfavourable attention of the police in late 2006;
iii)regarding his dissatisfaction with the discrimination in favour of middle managers in his previous place of employment, the police visit he claimed to have occurred came 10 months after he ceased employment there and after he had been employed in a new job for 9 months without problems. The Tribunal did not accept that the applicant would have been expressing in late 2006 views which would not have been expressed earlier and thus attract the interest of the police much closer to his date of dismissal;
b)accordingly, the Tribunal did not accept that the applicant was visited by police and by his street committee or that he was asked to attend interrogations at the street committee offices. Nor did the Tribunal accept that there would be any security or police interest in him for these reasons should he return to China in the foreseeable future.
The Tribunal noted that the applicant did not repeat at the hearing the claim that:
a)his father had suffered three years’ detention for his political views;
b)he had himself been in Tiananmen Square on 4 June 1989; or
c)he had supported Falun Gong
The Tribunal made no definite finding of fact on the first of these claims.
As to the second of these claims, the Tribunal concluded that it added no substance to the applicant’s claim to have been persecuted for expressing sympathy for the students of Tiananmen Square, which the Tribunal rejected.
Finally, the Tribunal observed that the applicant:
a)had not explained either in his primary application or at the hearing why supporting Falun Gong would result in persecution, or what exactly he meant by being a Falun Gong supporter; and
b)had not claimed to be a Falun Gong practitioner himself or to have suffered in the past for his support.
As a consequence, the Tribunal did not accept that any well-founded fear of persecution arose from “this all too brief and unspecific claim” (CB 75).
Proceedings in this Court
The grounds of the amended application filed in these proceedings can be summarised as follows:
a)the Tribunal was biased against the applicant;
b)the Tribunal’s decision was based on assumption; and
c)the Tribunal breached s.424A of the Migration Act 1958 (“Act”).
At the hearing today the applicant raised further possible grounds of review, namely:
a)the Tribunal applied the wrong test;
b)the Tribunal’s decision was wrong on the facts;
c)the Tribunal dismissed the review application without any grounds, evidence or materials; and
d)the Tribunal breached s.425 of the Act.
Tribunal biased against the applicant
As to the first ground of review pleaded in the amended application, the applicant has not identified whether it is actual or apprehended bias he alleges against the Tribunal. An allegation of bias is a serious matter and must be proved with convincing evidence. No such evidence has been presented to the Court in the context of this allegation such as by way of transcript or oral evidence today. The only evidence touching on this issue is what is contained in the Tribunal’s decision record, which is Exhibit A in these proceedings.
There is nothing in the Tribunal’s decision record which would suggest that the Tribunal approached the review with a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might be presented, or conducted itself in such a way that a fair minded lay observer might reasonably apprehend that the Tribunal was not bringing an impartial and unprejudiced mind to the resolution of the review application which was before it. For these reasons, the first asserted ground of review is not made out.
Decision based on assumptions
This allegation forms part of the first paragraph of the amended application and might possibly be seen to be part of the allegation of bias. However, it is properly seen as a separate claim. If a decision of the Tribunal was based on assumptions rather than evidence and conclusions logically drawn from that evidence, then this might demonstrate jurisdictional error. However, that is not the case here. The Tribunal’s decision was one which was based on logical conclusions drawn from the evidence which the applicant placed before it. It suffices to say that the Tribunal’s decision was based on evidence and logic, not assumption.
Breach of s.424A
The third pleaded ground alleges that the Tribunal breached s.424A of the Act but this allegation cannot be made out. It is apparent from a review of the Tribunal’s decision record that it reached this conclusion based on the evidence which the applicant supplied at the Tribunal hearing. Such evidence falls within the exception found in s.424A(3)(b), which means that the Tribunal had no obligation to serve a s.424A(1) notice in respect of that information. Certainly the Tribunal did make reference to the protection visa application which the applicant had initially lodged and the allegations of fact which the applicant made at that time. However, that information was not the reason or part of the reason for the Tribunal affirming the delegate’s decision as is required to raise an obligation to serve a s.424A(1) notice.
Of the three claims made initially by the applicant, only the one in relation to him having supported Falun Gong might arguably fall into the category of information that the Tribunal relied on, because in its reasons the Tribunal stated that it did not accept the claim of support of Falun Gong gave rise to a well founded fear of persecution for a Convention reason. However, that conclusion was based on the applicant’s failure to explain why a support of Falun Gong would lead to a well founded fear of persecution for a Convention reason. That is to say, to the extent that the Tribunal relied on the question of the applicant’s support for Falun Gong, such a finding was not based on information but on a want of information. As was said in the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18]:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
Before passing from this issue it should also be noted that the Tribunal expressed its belief that the claims made by the applicant in his primary application were all concocted to support a claim for persecution, and it might be said that this was a matter which attracted a s.424A obligation. However, that belief of the Tribunal’s is a conclusion based on information advanced in support of the applicant’s case and, to again quote the High Court in SZBYR’s case:
Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. (at 1195 – 1196 [17])
Consequently, the information in question on which the Tribunal based its conclusion could not be considered to be information attracting a s.424A(1) obligation because that information itself was not the reason or part of the reason for affirming the decision under review and, as is clear from SZBYR’s case, a conclusion by the Tribunal does not amount to information either.
Tribunal applied the wrong test
In his submissions today the applicant said the Tribunal did not understand the grounds of his appeal, which impliedly alleges that the Tribunal asked the wrong questions or failed to ask the right questions. He also alleged the Tribunal did not assess his claim according to s.91R of the Act.
It is clear from the Tribunal’s decision that it did understand what the correct tests were to determine whether a person met the criteria for the grant of a protection visa. The Tribunal’s discussion of the relevant law at pp.2 – 4 of its decision makes this clear; but in any event, there was no call for the Tribunal to apply the test in the circumstances of this case as the factual allegations made by the applicant in support of his application were disbelieved. In those circumstances there was no factual foundation to which the Tribunal could apply the refugee tests and, as a result, these matters raised today by the applicant do not disclose a basis upon which the Tribunal’s decision should be set aside.
Decision against the facts
The applicant submitted today that the Tribunal did not give judgment according to the evidence and did not fairly assess the persecution he would encounter were he to return to China. As to the findings reached by the Tribunal, although a different Tribunal might have reached a different conclusion, the finding which this Tribunal reached was open to it on a logical basis, based on the evidence before it. It is not for the Court to review a Tribunal’s findings of fact except in rare circumstances which do not exist in this case, and thus this element of this asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
As to the second element of this ground, the Tribunal had no need to assess the persecution which the applicant claimed to fear because it disbelieved the facts he advanced in support of that claim to fear such persecution.
Decision made without grounds, evidence or materials
It is unsurprising that an applicant in circumstances such as these believes that a Tribunal must have established a case contrary to his claim for a protection visa before it could be in a position to affirm the delegate’s decision to refuse the visa. However, that misunderstands the role of the Tribunal. The Tribunal does not need to have a negative case against an applicant’s claim before it affirms a delegate’s decision. Section 65 of the Act makes it clear that the Tribunal has no alternative but to affirm the delegate’s decision unless it is satisfied that the applicant meets the criteria for a protection visa.
Although there is no formal onus of proof on an applicant, there is nevertheless a practical expectation that an applicant will put information before a Tribunal which will lead it to a state of satisfaction which will oblige it to set aside or vary a delegate’s decision. If an applicant fails to satisfy the Tribunal that he or she meets the criteria for a protection visa, then the Tribunal has no alternative but to affirm the delegate’s decision even if there be no evidence of a negative sort in the Tribunal’s files.
Breach of s.425
Today the applicant alleged that the Tribunal did not give him written notification before it declined his claim, saying that it declined his claim directly and he could not respond to “those grounds”. This appears to be a complaint that the Tribunal did not disclose its thought processes to the applicant and identify to him, prior to delivering its decision, the reasons why it would be affirming the delegate’s decision. The Tribunal has no obligation to disclose its thought processes to an applicant and the fact that it did not do so does not disclose a breach of s.425.
Conclusion
For all these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated and consequently the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 May 2008
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