SZMBK v Minister for Immigration
[2008] FMCA 1101
•8 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1101 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal finding that the applicant had no association with Falun Gong in China but had gained knowledge about Falun Gong by associating with practitioners in Australia – whether the Tribunal breached s.91R(3) by failing to disregard the applicant’s conduct in Australia considered – whether a distinction can be drawn between conduct and the knowledge gained from that conduct considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A |
| SZIZO v Minister for Immigration [2008] FCAFC 122 SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 |
| Applicant: | SZMBK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 658 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 31 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal handed down on 26 February 2008.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
The Minister shall pay the applicant’s out of pocket expenses in respect of Court fees in the sum of $769.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 658 of 2008
| SZMBK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 26 February 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is taken from written submissions filed on behalf of the Minister on 29 July 2008.
On 22 April 2007 the applicant, a (now) 41 year old citizen of China arrived in Australia (court book “CB” 15).
On 16 May 2007 he lodged an application for a protection visa with the Department of Immigration and Citizenship ("Department") pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) (CB 1 to 26).
On 9 July 2007 a delegate of the Minister refused the grant of a protection visa (CB 27 to 36). On 8 August 2007 the applicant applied to the Tribunal.
On 16 August 2007 the Tribunal invited the applicant to attend a hearing of the Tribunal and informed the applicant by that letter that it was not able to make a favourable decision based solely on the information before it (CB 45 to 46).
On 10 October 2007 the applicant attended a hearing of the Tribunal at which he gave oral evidence (CB 49 and 66.4).
On 26 February 2008 the Tribunal handed down a decision signed on 11 February 2008 (CB 80 to 91). That decision affirmed the decision of the delegate not to grant the visa.
The Tribunal's decision
The Tribunal:
a)Did not accept the applicant was a convincing witness (CB 70.5) for a variety of reasons, including that it:
i)did not find credible the fact that once the applicant had been injured the authorities no longer considered him of interest.
ii)was not satisfied on the evidence that the applicant had obtained a false passport and, therefore, did not accept that a cover-up of the circumstances surrounding the passport was the reason for the applicant’s apparent delay in leaving China.
iii)was not convinced that the applicant had ever been involved in Falun Gong practice in China, or that he had been detained or tortured. The Tribunal found that if the applicant were a genuine Falun Gong practitioner in China he would not have waited four years to leave.
iv)accepted that since arriving in Australia the applicant had acquainted himself with the Falun Gong activities held in the Campsie district and accepted that he applicant was able to correctly answer the questions put to him about Falun Gong exercises and ritual. The Tribunal was not satisfied that the applicant engaged in “conduct” other than for the purposes of strengthening his refugee claim.
b)Having considered evidence as to what might befall a Falun Gong practitioner on return to China the Tribunal did not accept that there was a real chance that the applicant would be persecuted on return because of his alleged association with Falun Gong. That was because the Tribunal found there was no evidence available that the applicant would be identified as a Falun Gong member, much less a Falun Gong activist during his time in Australia. The Tribunal also noted that the applicant would be returning to China on a valid passport.
The application
The applicant relies upon a show cause application filed on 19 March 2008. That application contains two grounds, first an assertion of jurisdictional error in that the applicant did not receive any letter from the Tribunal to explain its “doubts” on which the Tribunal refused his application, and secondly an unparticularised allegation of a denial of procedural fairness. The application is supported by a short affidavit filed with it which I received as a submission. A second affidavit made by the applicant on 26 May 2008 was not read. I received as evidence the court book filed on 29 April 2008.
I conducted a show cause hearing in this matter on 4 June 2008. I took the view then, and remain of the view, that there is no substance to the asserted grounds in the application. The Tribunal decision turned upon its disbelief of critical aspects of the applicant’s evidence. There was no obligation under s.424A of the Migration Act for the Tribunal to explain its doubts about that evidence in advance of its reasons. Further, gaps, inconsistencies and other defects in the evidence are not “information” for the purposes of s.424A[1].
[1] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]-[18]
The allegation of a lack of procedural fairness is meaningless in the absence of particulars. The applicant was properly invited to a hearing and attended to give evidence. The Tribunal decision records that the applicant’s credibility was clearly put in issue during the hearing. The applicant was on notice as to the essential issues upon which the decision would turn.
However, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) I ordered the Minister to show cause why relief should not be granted in relation to the Tribunal’s application (or non application) of s.91R(3) of the Migration Act expressed in finding 4 of the Tribunal’s reasons, reproduced in the court book at page 71:
4. The Tribunal accepts that since his arrival in Australia the applicant has acquainted himself with Falun Gong activities in the Campsie district and was able to answer correctly the questions put to him, regarding aspects of the Falun Gong’s exercises and ritual.
The Tribunal is not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his claim to refugee status. He produced no corroborating evidence from the Falun Dafa in Australia attesting to his membership. Consequently, the Tribunal has decided not to weigh heavily this evidence in assessing the applicant’s real chance of persecution should he return to China.
Submissions
The applicant filed no written submissions. His oral submissions did not address the issue identified by me but went to his protection visa claims. Very helpful submissions were filed on behalf of the Minister on this issue. Relevantly, those submissions are:
… the first respondent has considered the finding at CB 71.5 (numbered paragraph [4]) in light of the recent Full Court deicsion in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105.
Whilst the finding at CB 71.5 is a seemingly brief finding, it has several constituent parts.
Firstly, the Tribunal decides, as a question of primary fact, that the conduct in question occurred. The Tribunal accepted “that since his arrival in Australia the applicant has acquainted himself with Falun Gong activities in the Campsie district”: see SZJGV at [22].
Next, having accepted the conduct occurred, the Tribunal goes on to find itself dissatisfied that the conduct was engaged in otherwise than for the purposes of strengthening his claim to refugee status. At that point the first respondent concedes that section 91R(3)(b) was likely engaged.
As SZJGV makes clear, relying upon a number of decisions of this Honourable Court, when section 91R(3)(b) is engaged, conduct must be disregarded for all purposes. However, in order to assess whether there is a proper application of section 91R(3) (or conversely, a jurisdictional error) the conduct must be defined.
In SZJGV at [22] the Court considered “conduct” to equally include action and inaction. In most cases, the “conduct” will be clear. That is particularly so in cases where the conduct in question gives rise to a potential sur place claim (for example, attendance at a protest or attendance at church).
However, as Driver FM noted in SZIBK v MIMA [2006] FMCA 1167 there are other types of conduct, namely conduct:
intended to have a corroborative effect in relation to claims of conduct in the country from which the applicant has fled: see SZIBK at [8].
In SZIBK the Court declined to distinguish “conduct” from “information about the conduct”. What arises in the present case is a potentially different distinction, namely that between “conduct” and “knowledge”.
At CB 71.5 the Tribunal accepted that “the applicant has acquainted himself with Falun Gong activities in the Campsie district” and then says that the applicant “was able to answer the questions put to him, regarding aspects of the Falun Gong’s exercises and ritual”. The first respondent says that these are separate findings. One relating to conduct and one relating to knowledge.
There were two pieces of evidence that were given by the applicant. The first was evidence of his conduct in Australia, namely the attendances at Campsie, but the second was the applicant’s knowledge of Falun Gong. That knowledge cannot be said to be “conduct” for the purpose of section 91R(3).
The distinction to be drawn is that under section 91R(3) whilst a Tribunal is mandated to disregard an applicant’s attendance at church or a study group to gain knowledge, the knowledge gained does not need to be disregarded. It is a fine distinction, but a distinction nonetheless.
In the present case, where the Tribunal says that it has “decided not the weigh heavily this evidence”, it referred only to the correct answers given at hearing vis a vis the applicant’s knowledge. If the above distinction is correct then the Tribunal was not required to disregard the knowledge gained and was free to test and evaluate the evidence as it saw fit. The only aspect of the evidence which was required to be ignored were the attendances in Campsie which were clearly “conduct”[2].
As SZJGV makes clear at [25] “it is arguable that the Tribunal is only bound to disregard the conduct.” The Court goes on to suggest that there may be cases where motivation for conduct will not have to be disregarded even though the conduct itself is. It follows that if a condition precedent (such as the motivation for conduct) may in certain circumstances remain for consideration, then it is also possible for a by-product of the conduct (namely knowledge gained) to remain for consideration.
The first respondent submits that there is nothing binding on this Honourable Court to prevent it endorsing the distinction set out above. In fact, the finding of the Full Court in SZJGV at [25] clearly entertains such a prospect. The first respondent respectfully urges the Court to make the distinction in question.
Alternately, in the event that the Court is not persuaded in this regard, the first respondent submits that whilst the language used at CB 71.5 does not express the Tribunal’s disregard for the evidence in the absolute terms of section 91R(3), a reading of the Tribunal’s decision as a whole makes plain that the Tribunal did disregard the applicant’s conduct. As Driver FM found in SZHAY v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FLR 148 at 164 -165 (cited by the Full Court in SZJGV at [15]):
Decision makers may indicate their satisfaction expressly or by necessary implication from their reasons. It is better they do so expressly.
Again, as referred to in the footnote to paragraph [29] above, it is plain from the Tribunal’s finding at CB 72 that the Tribunal concluded that the applicant did not have any profile in China or Australia of a Falun Gong practitioner. To that extent, the Tribunal’s reference to not weighing the evidence in question heavily in determining the applicant’s real chance of persecution on return shows that ultimately, the conduct was not taken into account.
[2] The first respondent submits that the “conduct” was disregarded as can clearly be seen from the finding at CB 72.2.
Reasoning
This Tribunal decision is open to three possible interpretations. The first is that the presiding member disregarded the applicant’s conduct in Australia having found that that conduct was not engaged in for any reason other than to enhance his protection visa claims but that the Tribunal did nevertheless consider matters extraneous to that conduct for the purposes of considering whether the applicant faced a well‑founded risk of harm in China following his stay in Australia. The Minister submits that such an approach does not involve a breach of s.91R(3). The second interpretation is that the Tribunal purported to disregard the applicant’s conduct in Australia in accordance with s.91R(3) but illegitimately took that conduct into account in considering whether the applicant had a sur place claim by reason of his conduct in Australia. The third possible interpretation is that the presiding member did not advert to s.91R(3) at all or, if he did, fundamentally misapplied it.
I accept from the Minister’s submissions the following propositions:
a)hypothetically, in an appropriate case, a distinction might be drawn between “conduct” and information about the conduct;
b)by extension, in an appropriate case, a distinction might properly be drawn between “conduct” and “knowledge”;
c)s.91R(3) may be engaged and dealt with in a Tribunal decision expressly or by necessary implication from the reasons for the decision.
However, accepting those propositions does not mean that this Tribunal decision is free from jurisdictional error. While counsel for the Minister made a noble, erudite and helpful attempt to persuade me that I should so find, the attempt was ultimately fruitless. The outcome in this case is that the decision of the Tribunal is vitiated by jurisdictional error for the reasons given by the Full Federal Court in SZJGV.
In my view, it is strongly arguable that the presiding member either did not advert to s.91R(3) at all or did not understand the task that the section required him to perform. That inference is open from the failure of the Tribunal to refer to the section or even the critical terms of it: namely the obligation to disregard conduct in Australia. At the very least, the presiding member asked himself the wrong question. The question was not what weight should be given to the applicant’s evidence once the Tribunal was satisfied that the applicant’s conduct in Australia was not engaged in for a reason other than to support his protection claims; the question was what elements of that evidence must be disregarded. At the very least, the section required that the applicant’s evidence about his conduct in Australia engaged in to enhance his protection visa claims be disregarded.
The Tribunal rejected as not credible the applicant’s claim to have been engaged in the practice of Falun Gong in China. The Tribunal found[3]:
It is not convinced that the applicant was ever involved in Falun Gong practice in China or that he was in detention for two days in June 2003 as claimed and tortured. If he was a genuine Falun Gong practitioner at that time, and fearing further persecution, he would not have waited a further four years to leave China.
Then, having considered the applicant’s involvement with Falun Gong activities in Australia and found that that conduct was only engaged in for the purpose of strengthening the applicant’s protection visa claims, the Tribunal went on to say[4]:
The Tribunal has given careful consideration to the possible risks which the applicant may face if he returns to China. The main independent commentary on the risks for Falun Gong members who claim an involvement or association with the Falun Gong in Australia comes from the department of Foreign Affairs and Trade.
[3] CB 71
[4] CB 71
The Tribunal then quoted from that document. It is, in my view, plain that the Tribunal was at this point considering the possibility of a sur place claim based upon the applicant’s asserted (and, at least to a degree, accepted) involvement with Falun Gong in Australia. This was not, in my view, a question of knowledge. It was a question of conduct which the Tribunal was bound to disregard. The Tribunal did not accept that the applicant was a Falun Gong member or activist in Australia but did accept that he had in some way associated with practitioners in the Campsie district in order to gain knowledge about Falun Gong. This view is reinforced by the Tribunal’s conclusion[5]:
For the reasons given above the Tribunal does not accept that there is a real chance that if the applicant returns to china now or in the reasonably foreseeable future that he will be persecuted for reasons of his association with Falung Gong. There is no evidence available to the Tribunal which would lead it to conclude that the Chinese authorities would identify the applicant as a Falun Gong member, much less an activist while in Australia (which he was not). Furthermore, he would travel back to China on a valid passport. Therefore, the Tribunal does not accept that there is a real chance that he will be persecuted for a Convention reason if he returns to China now or in the foreseeable future.
[5] CB 72
In my view, the Tribunal was considering the applicant’s conduct, namely his claimed association with Falun Gong in Australia, at this point. The Tribunal’s conclusion cannot be linked solely to the question of his knowledge of Falun Gong. It extends to how that knowledge was gained, namely by the accepted association with Falun Gong practitioners at Campsie. It is unfortunate that the Tribunal fell into error in attempting to be fair to the applicant by considering a possible sur place claim. The error was to the applicant’s benefit, not his detriment. This state of affairs might call for a consideration of whether the Court should, in the exercise of its discretion, withhold relief notwithstanding the existence of jurisdictional error. However, apart from the fact that the Federal Court has cautioned against the exercise of discretion against an applicant in these circumstances[6], I cannot rule out the possibility that a different Tribunal might reach a different view on the applicant’s credibility in relation to his claimed association with Falun Gong in China. It is also possible that a different Tribunal might take a different view on whether the applicant had a sur place claim.
[6] SZIZO v Minister for Immigration [2008] FCAFC 122 at [92]-[97]
The applicant is entitled to a lawful decision on his claims. The Tribunal fell into error in its failure to apply s.91R(3) properly or at all. The applicant should receive relief in the form of the constitutional writs of certiorari and mandamus.
As to costs, the applicant was not legally represented and has not incurred any legal costs. He has paid application and setting down fees totalling $769. He should be reimbursed those fees by the Minister.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 August 2008
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