SZLQX v Minister for Immigration - [2008] FMCA 718

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQX v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 718

MIGRATION – Review of decision of the Refugee Review Tribunal – findings open to the Tribunal on what was before it – s.424A of the Act not enlivened – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 91K, 422B, 425, 430D, 430A, 430C Division 4 of Part 7, Division 5 of Part 7

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZLQX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3592 of 2007

Judgment of:

Nicholls FM

Hearing date:

22 May 2008

Date of Last Submission:

22 May 2008

Delivered at:

Sydney

Delivered on:

22 May 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms S Hanstein

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 20 November 2007, and amended on 26 March 2008, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3592 of 2007

SZLQX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me an application made on 20 November 2007 under the Migration Act 1958 (Cth) (“the Act”), and amended on 26 March 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) which was delivered orally on 30 October 2007 and which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a national of the People’s Republic of China who arrived in Australia on 3 June 2007. She applied for a protection visa on 26 June 2007, and that application is reproduced at CB 1 to CB 28. I note in particular the statement which is reproduced at CB 28 and which sets out the applicant’s claims to protection. This application was refused by a delegate of the respondent Minister on 31 July 2007 (see CB 31 to CB 42).
The applicant sought a review by the Tribunal on 5 September 2007 (see CB 43 to CB 46). The applicant was ultimately invited to attend a hearing before the Tribunal, which she did on 30 October 2007 (CB 52). The Tribunal affirmed the decision of the Minister’s delegate. It delivered its decision orally on 30 October 2007, and the written record of its decision is reproduced in the Court Book at CB 56 to CB 70. This record contains an account of what the Tribunal reports as having occurred at the hearing that it conducted with the applicant (CB 66 to CB 68).
The applicant’s claims to protection were that she had become a Falun Gong practitioner in 1998 and, following what was described as the government’s “crack down” on Falun Gong in 1999, she participated in a demonstration in Beijing, and was subsequently required to sign documents that she would not practise Falun Gong. Nonetheless, she claimed to have attracted the attention of police in her home town, was mentally and physically mistreated by the Chinese government and, ultimately, in February 2007, was detained and was about to be charged by the police for attending illegal Falun Gong activities but fled China because her husband was able to use a “large sum of money to get me out”.
The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in China by reason of her practice and involvement with Falun Gong. Essentially the reason for the Tribunal coming to this conclusion was that the Tribunal found (at CB 70.3):
“[T]he Applicant is an unreliable witness in the present matter. The Tribunal relies in this decision entirely on the Applicant’s vagueness, on her self-claimed lack of knowledge and on the internal inconsistencies in her own evidence at the RRT hearing.”
What informed this finding was that based on her own evidence, the Tribunal made the following findings:
1)The applicant did not disclose, or espouse, any spiritual philosophical insights or values in her discussion of Falun Gong which suggested “very positively” to the Tribunal that the applicant was “not really serious or sincere about following or practicing Falun Gong” (CB 68.8 to CB 69.4).
2)She was unable to explain what is meant by Falun Gong “practice”.
3)There were inconsistencies in the applicant’s evidence as to why she stopped practising Falun Gong in China.
4)The Tribunal gave no weight to the applicant’s explanation for not being able to give such detail in her evidence (CB 69.6).
5)The Tribunal gave no weight to the applicant’s demonstration of Falun Gong practice because she was not able to describe “what it was about what she was doing that was uniquely or essentially ‘Falun Gong’” (CB 69.7).
6)Based on her evidence, found that the applicant had put, “income generation in Australia before Falun Gong” (CB 69.9).
7)Found that it was not satisfied the applicant ever had any genuine interest in Falun Gong, or that the applicant would not practise Falun Gong in China due to fear of persecution, but due to a lack of genuine interest in it (CB 69.9 to CB 70.1).

Application to the Court

By way of amended application filed on 26 March 2008, the applicant puts forward the following grounds:
“1. The Tribunal failed to consider the fact that I have been practicing Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The above mentioned had to be provided in writing (SAAP V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS (2005) HCA 24(18 MAY 2001)”
(Errors in the original.)

Hearing before the Court

The applicant appeared in person before the Court today. She was assisted by an interpreter in the Mandarin language. Ms S Hanstein appeared for the first respondent.
At the beginning of the hearing the applicant sought to make submissions to the Court, and appeared to be reading from a document which she described as a “draft” which she had before her. The interpreter indicated to the Court that there were some difficulties because the applicant was using, as was described, “broken language”. The applicant confirmed that she had no difficulty in understanding the interpreter and the hearing was able to proceed today with the applicant pausing at appropriate parts in the reading of her document so that the interpreter was able to translate as the applicant spoke. I am satisfied that, ultimately, the applicant was not prevented from properly making her oral submissions to the Court.
The applicant put before the Court a number of complaints which, as Ms Hanstein correctly identified, appeared to go beyond the stated grounds in the amended application, and which certainly, in part, appeared to relate to what was contained in the originating application to the Court. The first respondent had no objection to the Court proceeding to consider all of the applicant’s complaints, including those in the application, in the amended application, and as made orally by the applicant today.
The complaints therefore made today are as follows:
1)The Tribunal was “biased”. I understood this to be based on the applicant’s complaint that the Tribunal did not believe her when she said she practised Falun Gong.
2)That there was a breach of “s.91K”. The applicant was unable to explain to the Court what she meant by this complaint. The Court was able to ascertain that the applicant had been assisted by a person to whom she variously referred to as a “friend” or a “colleague”, and confirmed for the Court that this person was not a lawyer in Australia but, relevantly, she was unable therefore to assist the Court and submitted that she had been told to raise that there had been a breach of “s.91K”. I assumed that this was a reference to “s.91K of the Migration Act”.
3)A complaint that the Tribunal “did not follow s.424A”. The applicant explained that before her application was refused, the Tribunal did not inform her of the reasons and did not give her a letter pursuant to s.424A of the Act so that she could comment. She submitted that this affected the result of the application and that she had lost the opportunity to explain. The applicant asked the Court to intervene to allow her to remain in Australia so that she would be able to live here. I explained to the applicant the difference in the powers involved with the Tribunal and the Court, and that permission to remain in Australia was properly, under Australian law, the province of the Minister for Immigration, or relevantly, a matter for the Refugee Review Tribunal.
Despite opportunity provided to the applicant by orders made at the first Court date in this matter, the applicant has not put relevantly any transcript of the Tribunal hearing before the Court. Nor has the applicant put any other evidence before the Court in support of her claim as expressed in ground one of the amended application that the Tribunal failed to consider that she had been practising Falun Gong in Australia, and as to how that may cause “further persecution” if she were to return to China.
From the material that is before the Court, and from the Tribunal’s account of what occurred at the hearing that is set out in its decision record (a decision record which I note has also been put before the Court by the applicant herself by way of annexure to her affidavit of 20 November 2007), that the Tribunal questioned the applicant about her knowledge of the theory and practice of Falun Gong. From this account it appears the applicant gave evidence to the Tribunal in response to a question as to what she did in Australia:
“The only relaxation activity she undertakes is Falun Gong practice”
Further, she also gave evidence that she did not know much about whether Falun Gong practitioners could practice Falun Gong in Australia (CB 67.8), and confirmed (using the words “not yet”) that she had not engaged with any Falun Gong groups in Australia (CB 67.8). The applicant’s response to the Tribunal’s question as to why she had not yet engaged with Falun Gong groups in Australia was that “after she arrived here she focused on making money” (CB67.9).
The Tribunal specifically raised the issue of the applicant’s claimed Falun Gong practice in Australia with her at the hearing when it asked (at CB 67.10 to CB 68.2):
“The tribunal put to the Applicant that Falun Gong did not appear to have had much impact on her life and she said that she has not been practicing Falun Gong in Australia in the last few months since coming here because she has been working. She appeared to be saying that she did not even practice it in private in Australia.”
On any plain reading of the Tribunal’s reasons it was not satisfied that the applicant was a Falun Gong practitioner in China, nor that she ever had any genuine interest in Falun Gong. It further found that the applicant would not practice Falun Gong in China, not due to the fear of persecution, but due to a lack of genuine interest in it. Importantly, it specifically considered, amongst other things, “what she has done since coming to Australia, alongside other evidence in this case …. ” (CB 69.4). That is, that in considering the applicant’s Falun Gong practice and claimed adherence to Falun Gong, and in reaching its ultimate conclusion, the Tribunal considered the applicant’s evidence about what she had done since coming to Australia, and ultimately concluded that it was not satisfied on the applicant’s evidence that the Chinese State, or indeed any other party, would impute Falun Gong affiliation to the applicant in any remotely significant way (CB 70.2).
It is plain, therefore, at best left of the applicant’s claim in relation to practicing Falun Gong in Australia, when considered in light of her evidence which is not challenged before the Court today by any other evidence brought by the applicant, that she had not engaged with any Falun Gong groups in Australia and, given her inconsistent evidence, the lack of basic knowledge about Falun Gong, her inability to explain what she meant by Falun Gong practice, that she may have practiced in public really, in my view, survives as the only possible indicia of the applicant’s claim. Even in this regard the Tribunal squarely dealt with this in finding that the applicant had never been a genuine Falun Gong practitioner, that her activities in Australia were focused on income generation and that if she were to return to China she would not practice Falun Gong out of any fear of persecution due to a lack of genuine interest in it.
The Tribunal was not satisfied, based on the applicant’s own evidence, that the authorities or any other party would impute Falun Gong affiliation to the applicant in any remotely significant way. Ultimately, all of these findings and, relevantly, the Tribunal’s finding that the applicant’s evidence indicated that she had not shown any interest in Falun Gong in Australia were all open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).
Contrary to what is asserted in ground one of the application, the Tribunal did consider the applicant’s evidence relevant to what is complained of in that ground and did consider the issue of “further persecution” if the applicant were to return to China. In all, I cannot see that this ground rises above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”). This ground, therefore, does not succeed.
Ground two of the amended application asserts a breach of s.424A of the Act, and this also appears to be the complaint in ground two of the originating application. Ms Hanstein submitted that the applicant did not identify what information the Tribunal was obliged to put to her in writing pursuant to that section.
I note first that any plain reading of the Tribunal’s decision record reveals that the Tribunal’s decision was based on information provided by the applicant herself at the hearing. It was her evidence, given at the hearing, on which the Tribunal relied. In this regard, if there is any obligation enlivened under s.424A(1) of the Act, then such information falls squarely within the exception contained in s.424A(3)(b) of the Act from the requirements set out in s.424A(1) of the Act.
The Tribunal’s adverse view of the applicant’s evidence, and indeed, more broadly, the Tribunal’s view of the applicant’s evidence, is not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18]).
When read in conjunction with grounds two and three in the originating application, and seen in light of what the applicant said to the Court this morning, ground two in the amended application appears also to be a complaint that the Tribunal should not have delivered its decision orally. I note the reference by the applicant to “made a decision on my hearing” but should have put to the applicant in writing the reason for affirming the decision. The complaint appears to be, and to the extent that it was further explained before the Court, that pursuant to s.424A of the Act the Tribunal should have given to her, in effect, a draft of its reasons, or alternatively, in writing some indication of what intended to find so that she could comment.
If that is the applicant’s complaint, and it would appear that is the case, then in addition to what I have already said in relation to the Tribunal’s obligation pursuant to s.424A, then again, even in the context of this complaint, it must be noted that the Tribunal’s views, including its adverse views of the applicant’s evidence, its subjective appraisal of this evidence and its determinations based on this evidence, do not constitute “information” for the purposes of s.424A of the Act (SZBYR citing with approval what was said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, per Finn and Stone JJ at [24]).
This is a case to which s.422B of the Act applies making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
In all, I cannot see that the Tribunal breached any obligation pursuant to s.424A of the Act as put forward by the applicant. This ground also, as it relates to grounds two and three in the originating application, do not succeed.
When viewed more broadly, the applicant’s complaint, although not stated as such, may be seen to assert some breach of s.425 of the Act. But even if it does not make that assertion, it is appropriate for this Court to consider whether any such complaint would succeed, given that the applicant has appeared unrepresented before the Court today.
In relation to s.425 of the Act, the Tribunal discharged its obligation pursuant to that section and invited the applicant to a hearing. The applicant attended and gave evidence. There is nothing before the Court to show that the applicant was denied a proper opportunity to put her evidence to the Tribunal at the hearing. The applicant was assisted by an interpreter in the Mandarin language and there is no evidence before the Court that there was any difficulty in putting her claims forward through the interpreter. I cannot see that the applicant was denied a fair opportunity in this regard.

In terms more broadly of procedural fairness, in the context of s.425 of the Act, and bearing mind what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] and [44], the determinative issue disposing of the application for review was plainly that the Tribunal found the applicant to be “an unreliable witness”. This finding was informed by her vagueness, her lack of relevant knowledge, and internal inconsistencies in her evidence given at the hearing. The Tribunal squarely put this issue to the applicant at the hearing (at CB 68.3):
“The Tribunal put to the Applicant that her claims so far appeared vague and contradictory and that this might have implications as to how much or little of her account the Tribunal might find credible.”
Further, the Tribunal said (at CB 66.9):
“When the Tribunal put to the Applicant that her claims appeared somewhat inconsistent, she said she was talking about things that happened a long time ago.”
Procedural fairness requires that the applicant be given the opportunity to address what would be the determinative or dispositive issue or issues relating to her application. This was done at the hearing by the Tribunal. If the applicant seeks now to assert that the Tribunal should have done more and provided her with a further opportunity in relation to these issues, then this complaint does not succeed as I cannot see that there was any obligation on the Tribunal to have done so.
As to the Tribunal delivering its decision orally, the relevant statutory regime (see in particular Division 5 of Part 7 of the Act) expressly contemplates the Tribunal adopting such a course if it chooses to do so (see in particular s.430D and, at least by inference, ss.430A(1)(a) and 430B(1)(a) of the Act).
Before the Court today the applicant complained, as she did in ground one of the originating application, that the Tribunal was biased. It appears from what was submitted today that this was because the Tribunal did not believe her when she said she practiced Falun Gong. Any claim of bias must, of course, be supported by evidence if it is to be made out (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102). It is rare for such a complaint to be made out on the basis of the Tribunal’s decision record (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J).
The applicant’s complaint is not made out. Nor, for that matter, can I see that the Tribunal did not bring an open mind to the proceedings before it, or that the well-informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the proceedings. At best I understood the applicant’s complaint to be that the Tribunal was biased because it failed to understand her claims and, therefore, failed to properly consider her application or, as the applicant explained today, the Tribunal did not believe her. This complaint therefore does not rise above a request for impermissible merits review (Wu Shan Liang). It certainly does not ground an allegation of bias.
Further, as Ms Hanstein correctly submitted in my view, the applicant’s complaint should properly be understood as a challenge to the factual findings made by the Tribunal. Of course, findings of fact, including findings on credibility are for the Tribunal to make in the proper exercise of its powers and the conduct of the review (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). I cannot see error in this regard.
During the hearing this morning, in addition to the issues of bias, breach of s.424A and (perhaps) s.425, the applicant asserted that the Tribunal breached s.91K. As Ms Hanstein, in my view, correctly submitted, this section has no application to the Tribunal’s decision as it is concerned with temporary safe haven visas, and not the visa for which the applicant has originally applied.
Because the applicant did appear before me unrepresented today I did also consider, although it was not raised by the applicant, whether the applicant’s claim to nervousness at the hearing before the Tribunal somehow prevented her from properly giving her evidence. From the Tribunal’s account of what occurred at the hearing this issue appears to have been raised by the applicant. At CB 68.4 the decision record reveals that the applicant asked the Tribunal to consider that nerves prevented her from remembering what she knew. This statement appears to have been made by the applicant towards the end of the hearing and following the giving of most of her evidence, and it follows immediately upon the Tribunal having put squarely to her that her claims so far “appeared vague and contradictory”.
In any event, I cannot see that the Tribunal failed to consider the applicant’s explanation, or her statement, in this regard. It acknowledged that an applicant may be nervous on entering the Tribunal’s hearing room and being required to answer questions in the course of an inquisitorial hearing, but the Tribunal specifically notes that (at CB 68.4):
“[W]hen asked to cite what she could recall of the central tenets of Falun Gong, or Falun Dafa, the Applicant said she had never heard of any such teachings.”
The Tribunal found (at CB 68.4):
“Nerves did not appear to be an issue on that point.”
This finding, of course, in relation to her knowledge of the philosophy and practice of Falun Gong being at the heart of the matters discussed by the Tribunal with the applicant at the hearing.
In all, I cannot discern jurisdictional error, neither on the basis of what is in the applicant’s amended application or originating application, nor arising from what the applicant submitted to the Court today. Nor indeed can I otherwise discern jurisdictional error. In these circumstances, the application is dismissed.
The first respondent has sought costs set in the amount of $3,500. When I provided the applicant this morning with the opportunity to make any submissions on the issue of costs her response was, “I don't have the money now, wait for a while”. I understood from this that the applicant was not seeking to argue against the making of such an order but seeking from the Court that if such an order were to be made, that the applicant be given time to pay.
I cannot discern on what is before me that there is any reason in the circumstances of this case not to make an order for costs as sought by the first respondent. The applicant brought her application to this Court, as is of course, her right, but as a consequence the first respondent was required to respond to that application and incurred legal costs in making that response. In this matter, it is appropriate therefore, that a costs order be made, and I will make such an order.
In regard to the amount sought, I have had regard to the fact that the first respondent has prepared multiple copies of the Court Book, that there have been two appearances by a solicitor in this matter and an appearance at a final haring, that a formal response and written submissions have been filed, and indeed that the applicant filed not only an originating application but an amended application in this matter. I am satisfied that the amount sought, in all the circumstances, is a reasonable amount and will make the order in those terms.
It may be that it can be understood from what the applicant has said today that the Court should also consider making an order delaying the effect of the payment. Indeed, given that the applicant is unrepresented before me, this may also be understood that the Court make some order that the payment be made by way of instalment. In my view it is not appropriate that the Court, in this case, intervene in such a way. There is nothing before me to show or indicate that I should adopt such a course and, indeed, the applicant does not explain why I should make an order with the effect of waiting for a while. I note in particular that the issue of costs were raised generally by way of order 11 made at the first Court date in this matter and specifically the first respondent’s written submissions (at [11]) raised the issue of the Court making such an order. I decline therefore to make any order delaying payment.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 2 June 2008