SZLSV v Minister for Immigration
[2008] FMCA 1357
•16 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1357 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of s.424A of the Migration Act 1958 proved – allegation of bias not proved – no breach of s.425 proved. |
| Migration Act 1958, ss.91R, 424A, 425 |
| Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | SZLSV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3774 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 September 2008 |
| Date of Last Submission: | 16 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 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 $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3774 of 2007
| SZLSV |
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 the police questioned and tortured her because of her Falun Gong practice. She claims to fear persecution in China by reason of her practice and belief in Falun Gong. She arrived in Australia on 20 April 2007.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 23 June 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 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 77 – 80). Relevantly, they are in summary:
a)the applicant started practising Falun Gong on advice from a friend and she began practising when she became unemployed in 1996;
b)she practised and learned Falun Gong from a group for about two hours per day, she did the exercises and read the book and felt Falun Gong was good for her spirits. She spent a lot of time promoting it to friends, relatives and neighbours from 1996 to 1999;
c)in October 1999 the police came to her home and took Falun Gong books and leaflets. The applicant also said that she had continued to practise Falun Gong for about a year after it was banned in July 1999 and it was then that the police came to her house and seized her books;
d)the police took her for questioning, tortured her physically and asked her about the people who taught her. She was released two days later after signing a document guaranteeing that she would not practise Falun Gong any more;
e)when the police came they pulled her by the hair and she fell. Because of this she feels dizzy and forgets things although in the past she had a good memory;
f)she continued to practise Falun Gong underground for two days per week for about one year by herself. She then started to contact other practitioners and they practised at secret places;
g)from time to time when they were suspected of practising Falun Gong they were warned not to practise;
h)the police questioned her husband and her family about her Falun Gong activities and they could not have a normal family life. She could not enjoy the freedom of her belief of Falun Gong in China;
i)the applicant obtained a New Zealand visa in September 2006 but she did not leave China until April 2007 because she had to care for her father as he had a broken leg and her mother also had mobility problems; and
j)she had not continued her practice of Falun Gong in Australia for various reasons, including that she was a stranger here and not familiar with the environment, that she had to look for a job and that she wanted to settle down first.
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 demonstrated a lack of knowledge of significant concepts and philosophies underpinning Falun Gong and that this was highly adverse to her claim of having practised Falun Gong since 1996, noting that:
i)the applicant told the Tribunal the practice involves three exercises which is contrary to independent evidence that the practice of Falun Gong is based on performing a set of five exercises considered to be an integral and essential part of the practice;
ii)the applicant’s knowledge of the falun was very limited and she had only a simple understanding of the moral code zhen shan ren; and
iii)the applicant was not able to explain the concept of xinxing;
b)the Tribunal considered the applicant’s evidence that when she was detained by the police in 1999 she was pulled by the hair and fell and hit her head and that this has caused her to have dizzy spells and to forget things. However, the Tribunal did not accept that this explained her lack of knowledge of significant concepts;
c)the Tribunal did not accept that the applicant has not undertaken any practice of Falun Gong since her arrival in Australia because she was in an unfamiliar environment, had to find work, wanted to get settled and did not know people;
d)the Tribunal also found it implausible that, if the applicant were a genuine Falun Gong practitioner in China who wanted to leave because of her lack of freedom and inability to lead a normal life, she would not have taken steps to depart China once she obtained a New Zealand visa in September 2006, rather than depart in April 2007. The Tribunal did not accept her explanation of the delay that she had to look after her father; and
e)in light of this, the Tribunal did not accept that the applicant is, or has ever been, a Falun Gong practitioner in China or Australia or that she has ever come to the adverse attention of the Chinese authorities on account of her practice of or involvement in Falun Gong.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Tribunal failed to refer to relevant independent information for the consideration of my application.
(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 s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason (please refer to following pages).
(3)The Tribunal failed to carry out its statutory duty.
The applicant also raised a number of additional matters during the course of her submissions today. Dealing first with the matters which the applicant has pleaded in her amended application:
Tribunal failed to refer to relevant independent country information
There are two answers to the first allegation as pleaded in the amended application. The first is that the Tribunal did, in fact, refer to independent country information in its decision record. The second is that if the Tribunal did have other relevant independent country information available to it which it excluded from its considerations, the applicant has not identified what this might have been.
But in any event, this ground is really no more than a challenge to the Tribunal’s process of fact finding. It is for the Tribunal to identify whatever information it considers useful and relevant to its inquiry. The Tribunal’s choice of the information to consider when arriving at its decision and the weight which it accords to such information are matters solely for it. The Tribunal’s decisions on these issues cannot be reviewed by this Court in these judicial review proceedings. Additionally, if the applicant is of the view that the Tribunal failed to access important country information which it should have taken into account in its considerations, it was a matter for her to put such information before the Tribunal.
In summary, the fact that the Tribunal referred to particular independent country information and not other information was a matter entirely within its discretion and it is not a matter which can be reviewed in these proceedings. However, as already noted, on the facts the allegation is not made out because, contrary to the first allegation in the amended application, the Tribunal did not fail to refer to independent country information.
Breach of s.424A and failure to carry out statutory duty
The second and third grounds pleaded in the amended application are, in essence, the same ground; namely, that the Tribunal failed to discharge its statutory duty by reason of its alleged breach of s.424A of the Migration Act 1958 (“Act”) which relevantly provides:
424AInformation and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)…
(2A)…
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
The applicant asserts that the Tribunal should have served a s.424A(1) notice upon her. However, the circumstances of the review of the question demonstrate that this is not so. The information relied upon by the Tribunal when reaching its conclusion was the information which the applicant supplied to it during the course of the Tribunal hearing together with the independent country information to which reference has already been made. The information given by an applicant to the Tribunal for the purposes of a review and independent country information fall within the exceptions stated in s.424A(3) and are not information which is required to be given to an applicant pursuant to s.424A(1).
Consequently, the second and third grounds pleaded in the amended application do not disclose a basis upon which the Tribunal’s decision might be set aside.
Tribunal did not properly consider the applicant’s claims
Turning to the matters which the applicant raised in her oral submissions today, a review of the Tribunal’s decision record demonstrates that the allegation that the Tribunal did not properly consider the applicant’s claims cannot be made out.
The applicant’s claims made both in her protection visa application and during the course of the Tribunal process were addressed by the Tribunal in its decision record in sufficient detail to demonstrate that the Tribunal was aware of the applicant’s allegations and that it took them into account. Indeed, the Tribunal’s conclusion on the applicant’s review application was based on the perceived inadequacies in the evidence which the applicant had supplied to it.
This is not a case where the Tribunal failed to consider relevant information but it is one where, having given due consideration to the factual allegations made by the applicant, it concluded that the information did not support the claims that she was making.
In my view, it cannot be said that the Tribunal did not properly consider the claims which the applicant was making to it.
Bias
In her oral submissions today, the applicant raised for the first time an allegation that the Tribunal was biased against her. No evidence was adduced in support of this allegation which, it must be noted, is a serious one.
The only evidence before the Court which is available to be considered in connection with this issue is the Tribunal’s decision record contained in the Court Book. Nothing in that document suggests apprehended or actual bias on the part of the Tribunal as those terms are understood in the authorities: Johnson v Johnson (2000) 201 CLR 488, Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 and Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
No opportunity to explain claims
In her submissions today, the applicant said that she was not given the opportunity to explain herself and so her case was not reasonably assessed. It may be that this allegation is in truth linked to the applicant’s allegations concerning s.424A, which have been addressed earlier in these reasons.
In the event that this allegation is intended to stand on its own, it should be observed that the applicant was invited to attend a Tribunal hearing and she did so. There is no evidence before the Court to suggest that she was hindered or prevented in any way from articulating the claims which she wished to make, or in giving evidence or presenting arguments to the Tribunal, as was her entitlement under s.425 of the Act.
In this regard, it should be noted that the “RRT hearing record” reproduced at CB 60–61 discloses that the Tribunal hearing commenced at 10:05am and concluded at 11:50am. A hearing time of one and three quarter hours does not appear to me to suggest an insufficient opportunity having been given to the applicant to put her case. Indeed, at the end of the Tribunal hearing, the Tribunal asked the applicant whether she had anything more to say. The relevant passage from the Tribunal’s decision record is as follows:
The Tribunal asked the applicant if she wished to request more time to respond to or comment on the Tribunal’s concerns. The applicant stated that she wished to respond immediately. She stated that she had read books about Falun Gong, and in regard to xinxing, it was the ‘nature of the mind’. But she forgets a lot of things because of the incident in China when she was pulled and fell during questioning. When she came to Australia she was not accustomed to living here so she could not start practising Falun Gong. She hoped that the Tribunal would believe her. (CB 80)
In the circumstances, the allegation that the applicant was denied an opportunity to explain her claims cannot be made out
Failure to anticipate persecution upon return to China
Amongst the allegations made today by the applicant was that the Tribunal failed to anticipate that were she to return to China she would be persecuted and, in breach of s.91R of the Act, the Tribunal failed to assess the possibility of persecution. In the circumstances of this case, where the Tribunal disbelieved the applicant’s fundamental factual claims, there was no reason for the Tribunal to consider whether the applicant would face persecution on her return or to consider s.91R in the fashion alleged by the applicant. The Tribunal concluded that the applicant did not have a well-founded fear of persecution because it disbelieved her essential claims.
Conclusion
For all these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 26 September 2008
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