SZMAN v Minister for Immigration
[2008] FMCA 1351
•9 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1351 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal had regard to conduct of the applicant in Australia contrary to s.91R(3) of the Migration Act – whether failure to comply with s.424A of the Migration Act. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| Minister for Immigration and Citizenship v Applicant A125 of 2003 and Another (2007) 163 FCR 285 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 584 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 9 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 584 of 2008
| SZMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 12 February 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in September 2007 and applied for a protection visa.
She claimed to be a Falun Gong practitioner in China, that she had learnt Falun Gong from her son's teacher in 1998 and that after the teacher was sentenced to imprisonment in September 1999 she was sent for classes and warned not to continue practising Falun Gong.
She claimed she stopped for six months but resumed practising secretly in 2000. Early in 2006 police came to search her home and took away Falun Gong books. She claimed that she was detained for three days and physically and mentally persecuted by the police. She claimed she then realised she would not be safe in China and made preparations to leave China.
The protection visa application was refused by a delegate of the respondent, who observed that the applicant had not attended an interview to which she had been invited. The delegate was not satisfied as to the veracity of her claims.
The applicant sought review by the Tribunal. She attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. In its reasons for decision the Tribunal set out information in relation to the situation of Falun Gong practitioners in China and then described what occurred at the Tribunal hearing, including that the applicant claimed that she commenced Falun Gong practice in August 1998 but stopped practising the following month after injuring her leg. She claimed she recommenced the practice of Falun Gong in February 2000. When asked when she encountered any difficulties with the authorities after resuming the practice of Falun Gong she claimed that in about April or May 2000 the police had searched for Falun Gong material, arrested her, held her for three days and mistreated her.
The Tribunal discussed with the applicant inconsistencies in her oral and written claims as to the dates at which events occurred and the fact that in oral evidence she had claimed she was detained and questioned by the police and asked not to practice Falun Gong whereas in her protection visa application she had also claimed to have been physically mistreated by the police.
The Tribunal also recorded the applicant's claim about her activities in Australia, noting the absence of any corroboration. The Tribunal asked her if there were any witnesses and recorded that she said she did not speak English and that while she had been to Chinatown where there were Falun Gong practitioners, she needed to work to live and did not have a lot of time to practise. She said she practised Falun Gong for two hours on Monday mornings in Bankstown.
The Tribunal asked the applicant about Falun Gong, its history and philosophy and also asked her to demonstrate Falun Gong exercises. It recorded difficulties that it raised with her in relation to the extent of her knowledge of Falun Gong and the exercises that she demonstrated. The Tribunal put to the applicant that all she had been able to tell it about Falun Gong could be learnt with a few minutes research on the internet, that she did not seem to know very much about Falun Gong and that this lack of knowledge plus the contradictions in her claims made it difficult to conclude that she had been a Falun Gong practitioner in China.
In its findings and reasons the Tribunal summarised the applicant's claim to fear persecution in China as a Falun Gong practitioner, that her involvement with Falun Gong became known to the police, that she had been arrested and ceased practising for a short period but that she later resumed only to be discovered again and detained.
However it found the applicant's claim to be associated with Falun Gong to be unsupported by any corroborative evidence and that at the hearing she had displayed only a “rudimentary” knowledge of Falun Gong history, theory and practice. The Tribunal found that her level of knowledge was “extremely sketchy and could have been obtained from the internet with minimal research” and that it would have expected someone who had been practising Falun Gong for nine years in total to have had a significantly higher level of knowledge than that displayed by the applicant, taking into account her description of the circumstances in which she claimed to have learnt about Falun Gong and practised it. It observed that those claimed circumstances included one month's initial tuition, a period of attending meetings for several months before being required to stop, a period of some six years private practice in China and a period of weekly practice with a group in Bankstown. In particular, the Tribunal found that it would have expected a practitioner with such experience to know the name of the first Falun Gong exercise and to be able to demonstrate it proficiently, which the applicant had not been able to do. It found that even if the applicant had only practised Falun Gong on a weekly basis since arriving in Australia, it would have expected her to have known the correct name of the first exercise and to be able to demonstrate it.
The Tribunal had regard to the applicant's comment at the hearing that she thought she may have been suffering from some mental disease and the possible inference that such a disease may have impacted on her ability to respond to Tribunal questions. It noted that the applicant said she had not sought any medical treatment for such a condition. While the applicant had been unable to answer a number of its questions, in the absence of any medical diagnosis the Tribunal was not satisfied that she did in fact suffer from any medical condition which would have impacted on her ability to answer the Tribunal’s questions or to demonstrate her ability to perform Falun Gong exercises.
The Tribunal also found that there were inherent contradictions in the applicant's oral and written claims as had been discussed with her at the hearing relating to key aspects of her claims as to when she was detained and questioned by police and the nature of any adverse treatment. In those circumstances the Tribunal did not accept that the applicant's claim related to incidents that she had actually experienced.
The applicant had also given evidence that she had travelled to Malaysia and returned to China in 2005. The Tribunal found that had she been arrested and detained as claimed it would not have expected her to have returned to China when she had the opportunity to leave the country. It took this to suggest that the applicant had no fear of persecution in China at that time. Had she been a Falun Gong practitioner in China the Tribunal would have expected her to be very much aware of the risk she faced and she would not have returned to China voluntarily. The Tribunal concluded in all the circumstances that the applicant was not a Falun Gong practitioner in China. It therefore found that she did not have an adverse profile with the PRC authorities because of any past involvement in Falun Gong practice.
The Tribunal continued:
The Tribunal finds that she has not practised Falun Gong in Australia. It finds that the scant level of knowledge she has displayed about Falun Gong has been acquired by research in Australia to assist her to respond to questions about Falun Gong. The Tribunal finds that the applicant has no genuine commitment to Falun Gong and that were she to return to China in the reasonably foreseeable future she would have no reason to involve herself in Falun Gong in any way. The Tribunal therefore finds that she will not face persecution in China because of any association with Falun Gong.
The Tribunal concluded that as the applicant had made no claims other than those related to Falun Gong, she did not have a well-founded fear of persecution in China and was not a refugee.
The applicant sought review by application filed in this Court on 11 March 2008. She relies on an amended application filed on 26 June 2008. The first ground in the amended application is that the Tribunal failed to notify her in writing of the reason or part of the reason for affirming the decision and that hence the Tribunal failed to consider her application in accordance with s.424A of the Migration Act 1958 (Cth).
In oral submissions the applicant contended that the Tribunal was obliged to put to her its reasons for decision in writing under s.424A before it made the decision. However, it is well established that the Tribunal is under no obligation to put its provisional reasoning to an applicant under s.424A. Such provisional reasoning does not constitute information that would be the reason or part of the reason for affirming the decision under review as discussed by the Full Court of the Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and considered by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190.
Insofar as this ground might be intended to take issue with s.424A in any other way I have considered that possibility. The evidence that the applicant herself gave to the Tribunal and the information in her passport are excluded from s.424A(1) by virtue of the operation of s.424A(3)(b) as information that the applicant gave to the Tribunal for the purposes of the review. As counsel for the first respondent noted, the application to the Tribunal was lodged after 29 June 2007 and s.424A(3)(ba) of the section as it now stands excludes information provided by the applicant in her protection visa application from the operation of s.424A(1). No failure to comply with s.424A has been established.
The second ground is that the Tribunal “failed to refer to proper independent information for the consideration of the application”. No particulars were provided in the amended application or orally. There is no suggestion on the material before the Court that the applicant provided information to the Tribunal which it failed to take into account. In any event it is well settled that the choice and weight to be given to items of independent country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] – [11]). This ground is not made out.
In oral submissions the applicant raised a number of issues. She claimed first and reiterated in concluding submissions that the Tribunal was biased against her. The precise basis for this allegation was not clarified, but it seems that the applicant takes issue with the Tribunal consideration of her claims. She contended that the Tribunal did not consider her claims correctly. As discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, that actual bias in the sense of prejudgment (and also see Minister for Immigration and Citizenship v Applicant A125 of 2003 and Another (2007) 163 FCR 285) is established where the decision-maker’s state of mind is one so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. However as Gleeson CJ and Gummow J stated in Jia Legeng at [72]:
Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
Actual bias, however, is not easily proved and it is a rare case in which it will be established on the basis of the Tribunal reasons alone. This is not one of those rare and exceptional cases as discussed by von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 where actual bias is demonstrated by the reasons for decision. The mere fact of adverse findings in relation to the applicant's credit is not such as to give rise to an inference as to the state of mind of the Tribunal, and the Tribunal's account of what occurred in the Tribunal hearing is not such as to establish actual bias. Nor is it such as to establish apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, considered from the perspective of the appropriately informed lay observer. The applicant's claim of bias is not made out.
The applicant also claimed in oral submissions that the Department acted on a presumption and not on evidence. Insofar as she takes issue with the Department's decision, the application presently before the Court is for review of the Tribunal decision and her contentions do not establish jurisdictional error on the part of the Tribunal.
Insofar as she intended to say that the Tribunal acted on a presumption and not on evidence, as already indicated bias is not made out. Contrary to the applicant's contentions it is apparent from the Tribunal's account of the hearing that it raised with the applicant the difficulties it had with particular aspects of her evidence. The Tribunal asked whether there was any corroborating evidence. It indicated that evidence from witnesses might have been of assistance. It granted adjournments in the course of the hearing as sought by the applicant. It asked the applicant if she wished further time to respond to any of the matters raised at the hearing and gave her an opportunity for a further short adjournment. These factors indicate that rather than having acted on any presumption (or in such a way as to indicate bias) the Tribunal properly considered her claims in the hearing.
Moreover, it cannot be said that the Tribunal did not act on evidence in making its decision, in particular the oral evidence of the applicant herself at the hearing. The deficiencies in that evidence, the inherent contradictions between her oral evidence and written claims were matters taken into account by the Tribunal in reaching its conclusions, as well as the applicant's evidence of her travel to Malaysia and return to China. No jurisdictional error is made out on this basis.
The applicant also took issue generally with the merits of the Tribunal decision. As I endeavoured to explain to her, merits review is not available in this Court.
Finally, the applicant contended generally that the Tribunal did not deal with her application properly under s.91R of the Migration Act. Given the findings that the Tribunal made rejecting her claims about what she said had occurred in China and that she was not a Falun Gong practitioner, the only aspect of s.91R of possible relevance is s.91R(3), which provides that:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The applicant did not elaborate in any meaningful sense on the manner in which she said that the Tribunal failed to deal with her application under s.91R, but this issue had already been addressed by counsel for the first respondent in written submissions and was elaborated on in oral submissions. The possible relevance of s.91R(3) arises in light of the fact that the Tribunal made findings about the conduct of the applicant in Australia. It found first that the applicant had not practised Falun Gong in Australia. Given that it found that that conduct had not occurred, there was no room for the operation of s.91R in that respect. Something which has not occurred does not have to be disregarded s.91R(3).
The Tribunal went on to state immediately thereafter, as set out above, that the scant level of knowledge the applicant had displayed about Falun Gong had been acquired by research in Australia to assist her to respond to questions about Falun Gong. The first respondent submitted that in substance the Tribunal found that the acquisition of this knowledge was solely for the purpose of supporting the applicant's refugee claim and that it was therefore obliged to have no regard to this conduct under s.91R9(3) of the Act (see SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451). It was submitted that although the Tribunal did not refer to s.91R(3), it clearly did not rely on the applicant's conduct in acquiring the knowledge in reaching its decision. The reasons for the Tribunal's decision did not include, for instance, a credit finding which relied upon the applicant's conduct in acquiring knowledge in Australia. On that basis it was contended that there was no failure to comply with s.91R(3).
In oral submissions it was submitted in the alternative that if I were not persuaded of that view then I should in any event exercise my discretion to refuse relief on the basis that such consideration made no difference to the Tribunal's conclusion.
On balance, I accept the primary submission of the first respondent that the finding in question was in fact an elaboration upon the Tribunal's finding that the applicant had not practised Falun Gong in Australia for the reasons that it had given. It explained that in making this finding it had had regard to the fact that the applicant had demonstrated some knowledge of Falun Gong but, as it explained in more detail in its account of what occurred at the Tribunal hearing, that was a scant level of knowledge which the Tribunal found had been acquired by research in Australia to assist the applicant to respond to questions about Falun Gong. It can be inferred that the Tribunal was of the view that the conduct consisting of acquisition of this knowledge was solely for the purpose of supporting the applicant’s claim to be a refugee and hence was to be disregarded (and see in any event SZGYM v Minister for Immigration & Anor [2008] FMCA 1270 per Driver FM in relation to the distinction between conduct and motivation).
In this context it is apparent that the Tribunal was indicating that notwithstanding that the applicant had demonstrated some scant knowledge this was not such as to persuade it that the applicant had practised Falun Gong in Australia. It was on the basis of the Tribunal's findings that the applicant was not a Falun Gong practitioner in China, and hence did not have an adverse profile with the authorities, and that she had not practised Falun Gong in Australia that it found that the applicant had no genuine commitment to Falun Gong and that if she were to return to China in the reasonably foreseeable future she would have no reason to involve herself in Falun Gong and therefore would not face persecution in China because of any association with Falun Gong.
If I am wrong and the Tribunal has in fact failed to comply with s.91R in the sense considered in SZJGV by having regard to the applicant's conduct in Australia for the purpose of determining that there was no reason to believe that she would be persecuted by reason of any involvement or association with Falun Gong should she return to China, I am nonetheless persuaded that in the particular circumstances of this case relief should be refused in the exercise of my discretion. In that respect I have had regard to a number of authorities referred to by the first respondent.
The Tribunal's finding that the applicant had acquired a scant level of knowledge about Falun Gong by research in Australia to assist her to respond to questions had no consequence in relation to the outcome of her case in the sense that the Tribunal had already made determinative findings that she was not a Falun Gong practitioner in Australia or a Falun Gong practitioner in China. The Tribunal’s consideration of the impact of the applicant conducting some minor research in Australia to acquire scant knowledge of Falun Gong did not affect the outcome of the Tribunal decision. (See the discussion in SZJHG v Minister for Immigration & Anor [2007] FMCA 2050 at [47] – [48]).
Moreover in SZJZN v Minister for Immigration and Citizenship and Another (2008) 169 FCR 1 Madgwick J suggested (at [40]) that if, contrary to his view, "conduct" in s.91R(3) should be regarded as including ideas and beliefs motivating the conduct, the only “infraction” of s.91R(3) by the Tribunal “was in looking at such ideation with a view to considering whether it might assist the appellant in relation to his likely future conduct if returned to China, and coming to a negative conclusion”. It was however said to be plain that had no regard been had to such ideation, the application was in any case doomed to fail so that any error was immaterial.
Similarly, it can be said that if the Tribunal in this case considered the applicant's scant knowledge of Falun Gong beliefs and exercises with a view to considering whether it might assist her in relation to her claims about likely future conduct in China, it was nonetheless plain that the application was in any case doomed to fail so that any error was immaterial, did not “taint the decision” (SZJZN at [41]) and on that basis relief should be refused.
In SZJGV the Full Court left open issues that did not need to be determined on the case before it, including whether a distinction might be drawn between an applicant's conduct and the reason or reasons for which that conduct had occurred. Subsequently in SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 Gilmore J found that in the case before him the finding that the appellant was not a committed Christian in China were discrete from the findings concerning activities in Australia. The same may be said in this case about the finding that the applicant was not a committed Falun Gong practitioner. Hence the findings about the appellant's practices in China did not depend upon any conduct in Australia. In contrast in SZJXO (one of the cases considered in SZJGV) the finding that there was no real chance of the appellant being persecuted by reason of her religious beliefs on her return to China was derived from evidence which was intermixed, including her conduct in Australia.
In SZLWI Gilmour J found that even if there had been a breach of s.91R(3) the Court should refuse relief in its discretion, being satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution so that no purpose would be served by granting the relief sought. (Also see generally SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84).
I also note in relation to the circumstances in which the Court should exercise its discretion, while a strict approach was taken by the Full Court of the Federal Court in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 that was in the context of considering a breach of the procedural fairness provisions in Division 4 of Part 7 of the Act in a context in which s.422B indicated that such provisions constitute a code of procedural fairness. Such considerations are not applicable in this case.
Hence, while the primary basis for my decision is that in fact there was no failure by the Tribunal to comply with s.91R(3), if I am wrong in that regard this is a case in which I consider it appropriate that relief should be refused in the exercise of my discretion. Accordingly, the application should be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 September 2008
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