SZLSO v Minister for Immigration
[2008] FMCA 312
•9 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 312 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 |
| Applicant: | SZLSO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3741 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 March 2008 |
| Date of last submission: | 13 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2008 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Ms M. Mafessanti, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3741 of 2007
| SZLSO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 October 2007 and handed down on 8 November 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and a Falun Gong practitioner, as well as a unionist and protest leader in China (“the Applicant”).
The Applicant arrived in Australia on 16 April 2007 having departed legally from Beijing on a passport issued in her own name and a visitor visa.
On 24 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by “the CCP” for being a follower of Falun Gong.
On 18 June 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 24 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided a further statutory declaration in support of her review application in which she departed from her claims of a fear of persecution by reason of being a Falun Gong practitioner. The Applicant stated that she feared persecution from the authorities in China because of her anti-government activities in China in organising anti-government rallies, drafting and distributing a petition which she stated resulted in her arrest and detention. The Applicant stated that the Public Security Bureau continued to harass her after her release.
On 14 September 2007, the Applicant attended a hearing before the Tribunal in which she stated that her ex-husband bought a false passport for her in a false name and organised her travel to Australia.
The Applicant’s claims to the Tribunal, both written and oral, departed from her statement in support of her protection visa application. The Tribunal stated in its decision that it assessed the claims made by her only on her written and oral claims to the Tribunal.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
The Applicant gave oral evidence at hearings before the Tribunal on 31 August 2007 and 4 September 2007.
On 18 September 2007, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it. On 28 September 2007, the Tribunal received a statutory declaration from the Applicant in response to its letter.
The Applicant’s claims and the reasons for the decision of the Tribunal are accurately summarised in the written submissions of the First Respondent as follows:
“The Applicant’s Claims
10. The Applicant claims to have a well-founded fear of persecution arising from her political opinion as a person opposed to the exploitation of hotel workers: CB 35-37. The Applicant made the following specific claims in a statutory declaration annexed to her application for review (CB 67-71):
(a) the Applicant’s real name was Hong Li and she obtained a falsified passport to enter Australia;
(b) in January 2006, the Applicant obtained work as a cleaner at the Meidu Hotel and tolerated difficult working conditions in breach of the PRC’s labour laws;
(c) in January 2007, a reporter from Fushun Daily, Mr Yang Zhao, tried to reveal the working conditions at Meidu Hotel to the media but was warned by authorities “not to make any trouble with the government”;
(d) the Applicant and another employee, Ms Xiao Hong Zhao, encouraged hotel staff to seek help from the Workers’ Union, but instead, were threatened that they would be dismissed if they protested against hotel authorities;
(e) on 8 March 2007, the Applicant and Ms Zhao organised an open protest against the hotel authorities due to the difficult working conditions. The Applicant gave public speeches, calling all female staff to stop working;
(f) the protest was regarded as an anti-Government rally and was suppressed by the Public Security Bureau (“PSB”). The Applicant was then detained, interrogated and beaten by the police and forced to confess to anti-government ideologies and activities;
(g) the Applicant was only released after she promised, in writing, not to take any further action against the government and to pay RMB 10 000 Yuan;
(h) after the Applicant was released on 16 March 2007, the PSB continuously “gave [her] trouble” and questioned her “from time to time”;
(i) with the assistance of others, the Applicant drafted a petition claiming that Meidu Hotel violated the PRC's labour laws. The Applicant sent copies of the petition to Meidu Hotel staff, different government agencies and the media;
(j) on 14 April 2007, Mr Zhao was arrested by the PSB, as was Ms Zhao on 16 April 2007; and
(k) the Applicant arranged to escape the PRC and arrived in Australia on 16 April 2007.
The RRT Decision
11. The RRT did not find the Applicant to be a truthful or credible witness for a number of reasons, including:
(a) inconsistencies in the Applicant’s evidence regarding the petition she claimed to have drafted, as well as the failure of the Applicant to remember the contents of the petition (CB 168);
(b) inconsistencies in the Applicant’s evidence regarding the distribution of the petition and the date upon which she ceased to work at the hotel (CB 169, 171);
(c) the inability of the Applicant to recall any information regarding the Coal Capital Hotel, other than what was available on the internet (CB 169);
(d) the inability of the Applicant to recall details regarding her detention by the police and the protest she claimed to have taken part in (CB 171);
(e) inconsistencies in the evidence given by the Applicant regarding her date of birth (CB 172).
12. The RRT rejected all of the claims made by the Applicant in her statutory declarations submitted to the RRT and at the two hearings before the RRT: CB 174. The RRT determined that the Applicant had fabricated her claims in order to strengthen her claim to refugee status: CB 174.
13. The RRT was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision of the Minister’s delegate not to grant the Applicant a protection visa: CB 174.”
On 31 October 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 5 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The Applicant confirmed she relies on the application filed on 5 December 2007.
The grounds of the application are expressed to be as follows:
“1. The Tribunal made its finding based on the information which has completely misstated by it.
…
2. The Tribunal failed to put up its questions clearly.
…
3. The Tribunal’s decision has included a reasonable apprehension of bias.
…
4. The Tribunal failed to ensure me to understand the issue arising in relation to the review; and the Tribunal failed to create a genuine opportunity for me to comment on the issue arising from the review either at the Tribunal’s hearing or doing it in writing.
...
5. The Tribunal has been constituted by an unqualified member”
Each of the grounds and particulars in support was interpreted for the assistance of the Applicant. The Applicant was invited to make submissions in support of each of the grounds and in support of her application generally. The Applicant made no meaningful submission other than to reiterate the particulars of each of the grounds and state that the Tribunal’s decision was “wrong and breached laws”.
Ground 1
The particulars in support of ground 1 alleged that the Tribunal “forced” the Applicant to “recite the contents of the petition words by words at the Tribunal’s hearing”. The particulars suggest that the Applicant was submitting that it was not open to the Tribunal to use the fact that the Applicant could not describe the contents of the petition to support its finding that the Applicant is not a truthful witness.
The Applicant provided no evidence in support of such an allegation, such as a transcript of the Tribunal hearing, despite having been directed to file and serve such evidence by 18 February 2007.
However, a fair reading of the Tribunal’s decision does not suggest that the Tribunal required the Applicant to “recite” the petition. The Tribunal record discloses a detailed exchange with the Applicant where the Tribunal asked the Applicant about the petition, including its contents.
The Tribunal noted that the Applicant had claimed at both hearings that she and another had written the petition together. The Tribunal noted that the Applicant had initially claimed that she and another had taken three days to draft the petition. The Tribunal noted that it asked the Applicant what the last paragraph of the petition called on the government to do; how the petition ended; the author of the petition; and, the date of the petition.
Following answers by the Applicant that the Tribunal found to be unsatisfactory, the Tribunal noted that the Applicant then stated that she had not actually written the petition because she was not well educated. The Tribunal did not accept the Applicant’s various explanations for her failure to remember the contents of the petition. The Tribunal found “that the fact that there was a significant shift in the Applicant’s evidence when she could not describe the contents of the petition indicates that the Applicant is not a truthful witness”. The Tribunal found that if the Applicant had been involved in the drafting and distribution of a petition in March 2007, she would have been able to tell the Tribunal specific details about the contents of that petition.
Those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons. A fair reading of the Tribunal’s reasons does not suggest that the Applicant was forced to recite the contents of the petition word by word.
Accordingly, ground 1 is not made out.
Ground 2
The particulars in support of this ground are stated to be that the Applicant misunderstood the Tribunal’s questions about the number of copies of the petition made, the number of petitions posted to other workers; and the number of petitions handed to workers. The particulars state that the Applicant thought the Tribunal wished her to provide exact figures. The particulars appear to complain about the Tribunal’s finding that, because the Applicant was unable to tell the Tribunal the number of copies made and the number posted and distributed, the Applicant was not a truthful witness.
A fair reading of the Tribunal’s reasons discloses that the Tribunal explored with the Applicant her statement in her statutory declaration that she and others had made many copies of the petition and sent them to the staff at the hotel and their families. A fair reading of the Tribunal’s decision does not suggest that the Applicant was asked for the exact number of copies distributed. The Tribunal noted that the Applicant claimed she had been involved in posting the petition, however, when asked how many had been posted, she stated she did not know “because she was in poor health and did not post them”.
The Tribunal found “that the fact that the Applicant couldn’t tell the Tribunal how many of the copies they had made, how many petitions they had posted to other workers or how many petitions were handed to the workers indicated that she was not a truthful witness”.
This finding of the Tribunal followed the Tribunal’s finding about the unsatisfactory nature of the Applicant’s evidence in relation to the preparation of the petition and the inconsistencies in her evidence on that issue.
In the circumstances, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for which it provided reasons. The Applicant’s credibility is a matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The particulars also complain that the Tribunal did not put its questions clearly. However, such a contention is not supported by evidence, such as a transcript of the hearing. However, a fair reading of the Tribunal’s reasons does not support such a contention. In the circumstances, the misunderstanding of the Applicant of the questions put to her by the Tribunal does not amount to jurisdictional error on the part of the Tribunal.
Accordingly ground 2 is not made out.
Ground 3
The particulars in support of the allegation of apprehended bias are based on the Applicant’s disagreement with the Tribunal’s finding that “when the Tribunal asked the Applicant about the hotel she was simply providing information she had learnt”.
The Tribunal’s finding was based on the fact that the Applicant’s evidence that was confined to information about the hotel available on the website.
A fair reading of the Tribunal’s reasons discloses its exchange with the Applicant about her employment at the hotel.
The Tribunal stated that when it “asked the applicant for information that was not provided on the website the applicant could not provide the tribunal with that information.”
The Tribunal noted questions it put to the Applicant about the hotel, including that it put to the Applicant that the fact she was unable to tell the Tribunal other facts about the hotel and this may indicate that she did not work at the hotel. The Tribunal noted the Applicant’s response that she was a cleaner and only mixed with cleaners. The Tribunal found that, if the Applicant had been a cleaner at the hotel for 15 months and cleaned all areas, as claimed, she would have had “some idea the numbers of staff employed in the different sections of the hotel especially as she also claimed that she lived in the staff dormitory at the hotel.”
The Tribunal also noted that the Applicant provided a number of different answers as to when she stopped work at the hotel. The Tribunal noted it put to the Applicant its concerns about her inconsistent responses and noted the Applicant’s explanation that she had not understood the Tribunal’s questions. The Tribunal was not satisfied by that explanation and found that her inconsistent responses were “because she was simply making up her story rather than providing a truthful response.”
Those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Otherwise, a fair reading of the Tribunal’s reasons does not suggest that the Tribunal approached its task other than with a mind open to persuasion.
Ground 3 is more in the nature of a disagreement with the Tribunal’s findings, thereby inviting merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272).
Accordingly, ground 3 is not made out.
Ground 4
Ground 4 appears to complain that the Tribunal should have given the Applicant an opportunity to comment on its finding that the Applicant was only giving information about the hotel that she had learned from the website. However, the information about the hotel on the website is not information that enlivens the obligations of s.424A of the Act. It is information not specifically about the Applicant and is therefore excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act (see also, Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 at [19]).
Ground 4 also appears to complain that the Tribunal should have put to the Applicant its concerns about her inconsistent evidence about when she stopped working for the hotel. However, a fair reading of the Tribunal’s reasons makes clear that the Tribunal did put such matters to the Applicant at the hearing and noted her response (see paragraphs 41 to 44 above in these Reasons). In any event, the Tribunal’s thought processes in evaluating the evidence before it are not matters that the Tribunal is obliged to put to the Applicant (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 per Moore J at [24]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 per Allsop J at [207]).
Otherwise, ground 4 cavils with the findings of the Tribunal which this Court has already found were open to the Tribunal on the evidence and material before it. As stated at para.46 in these Reasons, this Court cannot undertake merits review.
Accordingly, ground 4 is not made out.
Ground 5
Ground 5 alleges that the Tribunal Member was “unqualified”. The particulars do not support such an allegation and there is no evidence before the Court to support the allegation. No evidence was provided in support of such an allegation. Ground 5 does not otherwise disclose any error capable of review by this Court and is rejected.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 8 April 2008
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