SZMAK v Minister for Immigration
[2008] FMCA 1131
•8 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1131 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether applicant’s claims properly considered – merits review not function of judicial review – choice, assessment and weight of country information – applicant must make out own case – whether breach of s.424A of the Act – procedural fairness – repetitive questioning – apprehended bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZMAK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 554 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 29 July 2008 |
| Date of Last Submission: | 29 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 5 March 2008 and the amended application filed on 19 May 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,525 payable within months four (4) of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 554 of 2008
| SZMAK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 7 February 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 28 June 1977. He claims to be a national of China.
The applicant arrived in Australia on 30 August 2007 on a valid Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on
24 September 2007on the basis that he was persecuted and fired from his job in China due to his involvement in the practice of Falun Gong.
On 25 October 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 26 November 2007 the applicant applied to the Tribunal for review of the delegate’s decision.
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 (the Convention).
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 particular 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 the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 18 December 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 16 January 2008 to give oral evidence and present arguments.
The applicant’s claims and evidence (Court Book (CB) 60–65)
In his protection visa application, the applicant claimed to be a Falun Gong member and to fear persecution as a result of his practice of Falun Gong. He claimed that he was arrested and detained by police in October 2006. He claimed that he was interrogated, physically tortured and forced to provide names of other Falun Gong practitioners. He claimed that if he returned to China, he would be arrested again and charged because he is known to the authorities. He claimed that the Chinese government would not protect him, rather that it would persecute him.
The applicant gave oral evidence at the Tribunal hearing that he did not personally practise Falun Gong. Rather, from 1999 to 2006, he assisted his girlfriend who is a Falun Gong practitioner, to distribute Falun Gong material such as CD’s. After his detention, (which he stated was for a period of 24 hours in January 2007), he claimed that he had to report regularly to police and when police came to his workplace to make enquiries, he was fired.
The Tribunal’s findings and reasons (CB 65–66)
I accept that the first respondent accurately summarises the Tribunal's findings and reasons as follows :
The Tribunal considered the applicant’s claims made to the delegate and the Tribunal were inconsistent particularly given that:
a) The applicant claimed in his protection visa application (PVA) to be a Falun Gong practitioner, however, at the hearing he claimed that he was not a Falun Gong practitioner and had only distributed CD’s and other material to assist his girlfriend: CB 65.3;
b) In his PVA the applicant claimed that he was questioned by police in October 2006, however, in his evidence to the Tribunal he claimed that he was questioned in January 2007: CB 65.4;
c) In his PVA the applicant claimed that he was forced to disclose the names of other Falun Gong members, however, at the hearing he stated that he was only asked to disclose when and where he had distributed the material: CB 65.7.
The Tribunal considered the applicant’s explanation for the inconsistencies in his evidence, namely that the person who assisted him with his application had a poor knowledge of English. The Tribunal did not accept this explanation and found that the applicant had completed the forms himself with the assistance of a friend, given that at the hearing the applicant demonstrated that he had an adequate knowledge of English: CB 65.5.
The Tribunal also noted that had the applicant been a genuine Falun Gong practitioner he would have sought protection at the earliest opportunity, namely, when he travelled to Europe in November 2006: CB 65.9-66.1.
As a result of these findings and the applicant’s admission that he was not a Falun Gong practitioner, the Tribunal was not satisfied that the applicant faced a real chance of suffering serious harm in the reasonably foreseeable future for a Convention reason. Accordingly, he was not a person towards whom Australia owed protection obligations: CB 66.4.
The Tribunal therefore did not accept that:
·the applicant was involved in the distribution of Falun Gong material
·he was a Falun Gong practitioner
·he was, and is imputed with any association with Falun Gong by the Chinese authorities
·he was arrested, questioned and detained by the authorities, whether in October 2006, or January 2007 or at any other time
·he would face arrest, or any other harm, at the hands of the Chinese authorities if he were to return to China in the reasonably foreseeable future.
In these circumstances, the Tribunal found that the applicant did not have a well-founded fear of persecution in China and was therefore not a refugee.
The proceedings before this Court
The applicant filed the application in this Court on 5 March 2008 setting out 3 grounds of review of the Tribunal’s decision. The applicant filed an amended application on 19 May 2008 setting out 2 grounds of review.
The applicant appeared in person before this Court on 29 July 2008 with the assistance of a Mandarin interpreter. Ms Palmer appeared for the first respondent.
The applicant was invited to say anything he wished to in support of the grounds of review, and generally, after each ground was translated for him.
Grounds of application
Ground 1 of the application
Ground 1 of the application states that:
The Tribunal did not believe my claims based on assumption, not evidence.
The applicant has not provided particulars to identify where he says the Tribunal based its findings of lack of belief of his claims on “assumption”.
In any event, contrary to the applicant’s assertion in this regard, I consider that a fair reading of the Tribunal’s Findings and Reasons demonstrates that its findings of fact were based on a careful analysis of all the evidence and material before it and that it reached its conclusion that the applicant did not have a well founded fear of persecution in China based on the “number of contradictions in the evidence” and its failure to accept the applicant’s explanations for these inconsistencies where there was no evidence to corroborate his assertions (CB 65-66).
Merely because the applicant disagrees with the Tribunal’s findings of fact in this regard does not amount to an error of law. It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the applicant's claims and set out a clearly reasoned analysis of them; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant's responses. As stated above, the Tribunal then made findings based on all the evidence and material before it.
I consider that its findings of fact were open to it on the evidence and material before it; that it provided well-articulated reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 of the application states that:
The Tribunal failed to consider my application for a protection visa according to s.424A of the Migration Act 1958. The Tribunal had not notified me in writing the reason or part of the reasons for affirming the decision.
This ground is dealt with under amended ground 2 below.
Accordingly, Ground 2 of the application is rejected.
Ground 3 of the application
Ground 3 of the application states that:
The Tribunal failed to refer to relevant and up to date independent information for the consideration of my application.
The Tribunal did not rely upon independent country information in making its findings in this case. Rather, as stated under ground 1 above, it based its findings on inconsistencies in the applicant’s evidence.
Whilst the Tribunal was entitled to inform itself as to relevant country information, it had no obligation to do so. A Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J. Even if there is evidence to establish that a Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]. Furthermore, the weight a Tribunal accords country information is ultimately a factual matter for it: NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
I thus detect no jurisdictional error on this basis.
Accordingly, Ground 3 of the application is rejected.
Grounds of amended application
Ground 1 of the amended application
Ground 1 of the amended application states that:
The Tribunal failed to consider the fact that I have been practising Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
I note that the applicant has not provided the Court with the transcript of the Tribunal hearing in support of such claims.
In any event, nowhere in his claims, either in his protection visa application nor as summarised by the Tribunal on the face of the decision record, does the applicant advance the claim that he has been practising Falun Gong whilst in Australia and that such practice may lead to his further persecution if he were to return to China.
In these circumstances, there was no obligation on the Tribunal to consider matters not put before it by the applicant. It is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making: Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288, the relevant facts of an individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for him: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
Ground 2 of the amended application states that:
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. The Tribunal was required to provide particulars of the information that was the reason of 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)).
No s.424A letter was sent by the Tribunal to the applicant. However, in the circumstances of this case, I do not consider that the Tribunal’s statutory obligations under s.424A of the Act were enlivened.
It is clear that a proper construction of the word “information” in the context of s.424A, and hence what information must be given to an applicant for comment or response, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor 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, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. 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. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Equally at the forefront of the Tribunal’s thought processes and appraisals of the evidence, in the present case, were the inconsistencies in the applicant’s evidence. The Tribunal clearly identified these issues for the applicant’s comment or response at the Tribunal hearing, but it was under no obligation to notify him in writing pursuant to s.424A(1) of its concerns in this regard.
I thus detect no breach of s.424A of the Act and am satisfied that the applicant was accorded procedural fairness in this regard in compliance with the statutory regime.
Accordingly, Ground 2 of the amended application is rejected.
Applicant’s oral submissions
I accept the submission by the first respondent that to the extent that the applicant sought to reiterate his claims for refugee status in his oral submissions, (see Court transcript, 29/7/08, pp 3, 4, 9), he is seeking that the Court engage in impermissible merits review which is not the function of this Court (and see ground 1 of the application above).
The applicant further asserted that “[the Tribunal] said too many things, confused me”, (Court transcript, p 2), and that “[the Tribunal] asked me the questions on and on and asked the same thing many times in different ways. Therefore that person confuse me” (Court transcript, p 4). He has not however provided any particulars, nor has he provided the Court with the transcript of the Tribunal hearing in support of this submission.
There is also nothing on the face of the Tribunal decision record to support such an assertion, nor to disclose that the applicant made any complaint to the Tribunal during the hearing or at any time thereafter prior to the handing down of its decision. Indeed, in this regard, the Tribunal decision record discloses that:
Having asked everything it wished to ask the applicant, the Tribunal asked him if there were any matters he wished to bring before the Tribunal, other than those already discussed. He said there were none. The Tribunal asked him if he would like to have any further time to respond to any of the matters which had been raised with him. He asked to be allowed, and was granted, an adjournment of five minutes to allow him to think about things. However, after the adjournment, he said he had thought about it and did not have anything else he wished to raise.
Clearly the Tribunal thus provided the applicant with sufficient opportunity in these circumstances to raise any complaint about any alleged confusion he may have had from the line of questioning adopted by the Tribunal.
Also, the RRT Hearing Record (CB 44-45) indicates that the hearing was conducted from 8.30 am over a 1½ hour period, which cannot, in itself, be considered unduly prolonged.
There is equally nothing to suggest from the face of the decision record that any questioning of the applicant was unduly repetitive, oppressive, unduly harassing, intimidating, or that the applicant was in any way overborne, which could otherwise have constituted procedural unfairness or bad faith on the part of the Tribunal. As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]-[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
I am satisfied that there is nothing disclosed on the face of the decision record concerning the manner and form of the questions asked of the applicant from which “a hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the applicant was in any way intimidated or overborne by the approach adopted by the Tribunal and from which an inference might otherwise have been available that the Tribunal did not bring an impartial mind to the task of the decision making process: ex parte H & Anor (at [28]), or that it acted in bad faith.
I am thus satisfied that the applicant has not established any basis for proof of the complaint now placed before this Court that the Tribunal prejudged the matter, acted in bad faith, or embarked upon its task with a mind not open to persuasion. In these circumstances I detect no apprehended bias on the part of the Tribunal and am satisfied that the applicant was accorded procedural fairness in this regard.
Accordingly, I detect no jurisdictional error in regard to the matters raised in the applicant’s oral submissions.
Conclusion
The Court finds that 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 application and the amended application before this Court are dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 8 August 2008
12
2