SZMCR v Minister for Immigration
[2008] FMCA 1538
•28 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1538 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal finding on “the whole of the evidence” that the applicant was not a genuine Falun Gong practitioner – whether the Tribunal breached s.91R(3) of the Migration Act 1958 (Cth) considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.91R |
| SZJGV v Minister for Immigration [2008] FCAFC 105 |
| Applicant: | SZMCR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 799 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 12 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Burwood, pro bono publico |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 799 of 2008
| SZMCR |
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 decision was handed down on 18 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant claimed persecution in China on the basis of her asserted practice of Falun Gong. The following statement of background facts is derived from the applicant’s written submissions filed on 6 August 2008.
The applicant, a citizen of the People’s Republic of China (PRC), born 23 September 1972, arrived in Australia on a visitor visa from that country on 17 June 2007.
On 9 July 2007 she applied for a protection (Class XA) visa which was refused by the delegate on 30 August 2007. On 2 October 2007 the applicant applied for review of the delegate’s decision to the Tribunal. The Tribunal affirmed the delegate’s decision in the decision handed down on 18 March 2008.
On 4 April 2008 the applicant filed an application to the Federal Magistrates Court claiming inter alia jurisdictional error pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
The Findings and Reasons of the Tribunal record that it observed that the applicant had some knowledge of Falun Gong but little knowledge of its philosophical basis given that the applicant had claimed to have practised both in China and Australia.[1]
[1] CB 106.3
The reasons state:
The Tribunal accepts from the evidence she gave in the hearing and photographic evidence that the applicant has practised Falun Gong in Australia since she arrived in Australia.
The Tribunal commented that the applicant’s lack of evidence at the first hearing of attending Falun Gong sessions contrasted with her bringing photographs of her participating in demonstrations against the Chinese government in Australia to the second hearing.
The Tribunal goes on to state:
The Tribunal accepts that the applicant has practised Falun Gong in Australia but from the Tribunal observation of her paucity of knowledge of fundamental Falun Gong philosophy the Tribunal finds she is not a genuine practitioner. The Tribunal rejects her explanation…
The Tribunal records her claim that, were she to return to China:
…there is a real chance that the Chinese authorities would detect her practice of Falun Gong and she would be detained for reasons of her beliefs. She claims that this is so because she claims she openly practices Falun Gong in Australia and has evidenced this in photographs and will continue to practice Falun Gong beliefs in private if she returns to China.
The Tribunal then states:
The Tribunal finds on the whole of the evidence before it that the applicant is not a genuine Falun Gong practitioner. The Tribunal finds, furthermore, that any practice the applicant has performed in Australia and any knowledge she had gained thereby has been initiated in order to assist her refugee claims and pursuant to Regulation 91R(3) (sic) must be disregarded.
The application
The applicant relies upon a show cause application filed on 4 April 2008 which asserts a breach of s.91R(3) of the Migration Act in the following terms:
1. The Tribunal found that “She is not a genuine practitioner.” The Tribunal fell into jurisdictional error in making the finding.
2. The Tribunal found that “further more, that any more the applicant has performed in Australia and any knowledge she had gained thereby has been initiated in order to assist her refugee claims and pursuant to Refugee 91R(3) (sic) must be disregarded.” The Tribunal fell into jurisdictional error in making the finding.
3.The Tribunal misconstrued s.91R(3) of the Migration Act, giving rise to jurisdictional error.
I conducted a show cause hearing in this matter on 7 July 2008. As a result of that hearing, among other things, I ordered that the Minister show cause why the applicant should not be granted relief in relation to the question of whether the Tribunal breached s.91R(3) of the Migration Act in light of the Full Federal Court decision in SZJGV v Minister for Immigration [2008] FCAFC 105.
Evidence and submissions
The only evidence I have before me is the court book filed on 8 May 2008.
The applicant relevantly submits as follows:
The Tribunal records that its findings with regard to the applicant are based on the ‘whole of the evidence’[2]. That evidence included her explanation for the preparation of her protection visa application, her differing stated professions, her knowledge of the philosophy of Falun Gong, her conduct in Australia and her practice of Falun Gong in China.
The Full Court stated in SZJGV in relation to SZKBK at [30] ‘Had the Tribunal made its findings in relation to the appellant’s conduct in Australia, then applied s.91R(3) and thereafter paid no regard to that conduct in its reasons, it would not have fallen into error’.
The evidence of the Tribunal’s reasons supports the proposition that the Tribunal considered the applicant’s conduct in China and Australia to make findings ‘that the applicant is not a genuine Falun Gong practitioner’.
This was so the Tribunal states as ‘The Tribunal accepts that the applicant has practised Falun Gong in Australia but from the observation of her paucity of knowledge of fundamental Falun Gong philosophy the Tribunal finds she is not a genuine practitioner.’
Having relied on the whole of the evidence to make its finding that the ‘applicant is not a genuine Falun Gong practitioner’ the Tribunal then applied s.91R(3) and made a finding ‘furthermore’ that ‘any practice the applicant has performed in Australia and any knowledge she had gained thereby has been initiated in order to assist her refugee claims and pursuant to Regulation 91R (3) must be disregarded’.
The Tribunal breached s.91R(3) by paying regard to the applicant’s conduct in Australia in determining whether she was a refugee. The section requires that the applicant’s conduct in Australia is to be disregarded in making the determination.
The Tribunal’s written record evidences that the applicant’s conduct in Australia was considered along with her conduct in China to make a finding after which her conduct in Australia was purportedly disregarded.
[2] CB 106.10
The Minister makes the following submissions in relation to the asserted breach of s.91R(3):
The critical statement of principle appears at [22] of the Full Court’s decision as follows:
22 We accept the Minister’s submission that s 91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application. If it has occurred then consideration must be given to the requirements of s 91R(3). We do not understand the appellants to contend otherwise. Their submissions do, however, overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account "at all" in deciding the application. As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account. Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision maker from having regard to "any conduct" engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s 91R(3).
Thus, in SZJGV s.91R(3) operated to prevent regard being had to the applicant’s conduct in Australia when making a factual finding upon whether the applicant had practised Falun Gong in China in the past. It also operated in SZKBK to prevent regard being had to the applicant’s conduct in Australia when making a factual finding upon whether the applicant would practice Christianity in China in the future. In SZJXO it operated to prevent regard being had to the applicant’s conduct in Australia when making a finding of fact concerning the level of involvement the applicant would have in Falun Gong in the future.
The effect of s.91R(3)(b) is that conduct does not have to be disregarded if the applicant satisfies the [Tribunal] that it was engaged in otherwise than for the purpose of strengthening the applicant’s refugee claims. Thus, in accordance with the reasoning in SZJGV, the [Tribunal] must first make a finding of primary fact about what conduct the applicant has engaged in in Australia. It then must consider whether the conduct must be disregarded. “Conduct” does not have to be disregarded if the [Tribunal] is satisfied that it was engaged in “otherwise” than for the purpose of strengthening the applicant’s claims to refugee status. This means that once a primary finding of fact is made that the applicant has engaged in “conduct” in Australia the [Tribunal] can still have regard to all the evidence, including that conduct, for the purposes of assessing its satisfaction as to whether it was engaged in otherwise for the purposes of strengthening the applicant’s claims. Consistent with the reasoning in SZGJV the [Tribunal] ought to be able to have regard to the whole of the applicant’s evidence for this purpose. It is only once the [Tribunal] considers that it is not satisfied that the conduct was engaged in otherwise than for the purpose of strengthening the applicant’s claims that it necessarily must disregard the conduct.
The Issue
In this case, The [Tribunal] found at [court book] CB 106.6 that the applicant had practiced Falun Gong in Australia but that because of the paucity of her knowledge of fundamental Falun Gong philosophy she was not a genuine Falun Gong practitioner. This then led it to find that that the applicant’s knowledge of Falun Gong was information that was deliberately acquired for the purposes of the review. For reasons explained above, having regard to the applicant’s conduct in Australia when making this finding is permitted by s.91R(3) of the Act. However, the [Tribunal] did not expressly refer to s.91R(3) at this point.
The [Tribunal] then considered the position of the applicant should she return to China as a person who had been engaged in Falun Gong activities in Australia. The [Tribunal] makes no finding on this issue at this point as, at the base of CB 106, the RRT repeats its earlier stated conclusion that the applicant was not a genuine Falun Gong practitioner. This time it states that this was based upon the whole of the evidence. It then says it is disregarding the applicant’s practice of Falun Gong in Australia and any knowledge she gained thereby under s.91R(3) of the Act.
In the following paragraph the [Tribunal] then returns to its consideration of the applicant’s “initial refugee claims prior to her arrival in Australia”.
While the [Tribunal’s] reasoning process has been fragmented, it is tolerably clear that the passage at the bottom of CB 106-107 follows on from the [Tribunal’s] earlier consideration of the applicant’s Falun Gong practice in Australia. At this point the [Tribunal] now applies the terms of s.91R(3) to its earlier findings. It is submitted that the [Tribunal’s] intention was to explain that it need not find whether or not the applicant’s Falun Gong practice in Australia would lead to the applicant being persecuted in China in the future because it was required to disregard that conduct by s.91R(3) of the Act.
From this point on there is no reason to consider that the [Tribunal] was having any regard to the applicant’s conduct in Australia. The [Tribunal] then moves to consideration of other aspects of the applicant’s evidence. In this consideration it can be inferred that the [Tribunal] was not having regard to the applicant’s conduct in Australia.
When the [Tribunal’s] reasons are understood in this way there has been no failure comply with s.91R(3) as explained by the Full Court in SZJGV.
Discretion
If, contrary to the above submission, the Court finds that there is a jurisdictional error then the first respondent submits that relief should be withheld as it did not affect the outcome. The error was favourable to the applicant (see SZJHG v Minister [2007] FMCA 2050 at [47]). If the [Tribunal] had assessed the applicant’s claim to be a Falun Gong practitioner, without that knowledge acquired in Australia, then the applicant’s case was even weaker (her knowledge was thereby even more deficient than the [Tribunal] would expect of someone of her history of practice). This follows because the [Tribunal] found that her knowledge had been wholly acquired in Australia. Accordingly her case was doomed to failure for the reasons given by the [Tribunal].
In SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 the Full Court refused relief where a technical breach was asserted (use of an incorrect postcode when serving notices). They did so without even determining whether there was a jurisdictional error. They made the following observations:
14 The circumstances that may attract an exercise of discretion adverse to an applicant are discussed in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [56]-[57]. As Mr Lloyd commented in his written submissions:
In the circumstances of that case, [Aala] this discretionary ground was not available because the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome...
There the prosecutor had not had the opportunity to advance evidence that he had wanted to advance. That is very different from the present case.
15 See also Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam at [38] where Gleeson CJ observed that there the appellant had suffered no practical injustice and no procedural unfairness. A lack of practical injustice was also the basis for an exercise of the discretion to refuse relief in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [56]-[57]. See also SZJSP v Minister for Immigration and Citizenship at [28]-[29] where Madgwick J remarked at [29]:
To set aside the Tribunal’s decision and require reconsideration of the appellant’s claims de novo would be, ... to allow the triumph of mere technicality over substance ....
In oral submissions, counsel for the applicant submitted that relief should not be withheld in the exercise of discretion on the basis that there was, for the purposes of considering the exercise of discretion, no relevant distinction to be drawn between this case and the cases considered by the Full Court in SZJGV. Counsel for the Minister submitted that no relevant distinction was there to be made on the basis that any error in this case was not to the applicant’s detriment in the disposition of the case. Counsel for the Minister drew my attention to the decision of the Federal Court in SZLWI v Minister for Immigration [2008] FCA 1330, in particular at [35] and the decision of this Court in SZMAN v Minister for Immigration & Anor [2008] FMCA 1351. Counsel for the Minister sought to distinguish cases involving breaches of s.91R(3) from cases involving a breach of the code of procedure by the Tribunal involving procedural fairness considerations that were dealt with by the Full Federal Court in SZIZO v Minister for Immigration [2008] FCAFC 122.
Consideration
I accept in general terms the Minister’s submission identifying the issues arising from the decision of the Full Federal Court in SZJGV. There is no doubt in this case that the Tribunal was alive to its responsibilities under s.91R(3) because they were raised with the applicant at the hearing conducted by the Tribunal[3].
[3] CB 103
In its finding and reasons, commencing at CB 105, the Tribunal began by making adverse credibility findings against the applicant based upon her unreliability as a witness. The Tribunal considered the applicant’s knowledge of Falun Gong and her conduct in Australia in the following terms[4]:
The Tribunal observes from oral evidence that the applicant has some knowledge of Falun Gong but little knowledge of its important underlying and fundamental philosophical content - especially for someone who claims to have practised in China (PRC) and Australia. The Tribunal accepts from the evidence she gave in the hearing and photographic evidence that the applicant has practised Falun Gong in Australia since she arrived in Australia. She was able to give the Tribunal some detail about Falun Gong exercises and its relevant concepts. The Tribunal is aware from the applicant’s claims that she claims her practice began in China (PRC) and she claims she has attended Falun Gong sessions in Australia at a nearby park - spasmodically. At first she said she was not in possession of evidence to prove her involvement in Australia though she claimed to have attended a Falun Gong demonstration. She said in the first hearing that as a genuine practitioner she did not have to evidence her practice. Subsequently at the second hearing she submitted two photographs of herself participating in demonstrations against the Government of China (PRC). When asked to do so she was unable to identify the date of one of the occasions in the photographs at the second hearing. Her account of how she became involved in practising Falun Gong in China (PRC) was unusual in that she claimed in her statement that she practised in private and later in the hearing she claimed she practised in a private park owned by a Government official. This claim seemed implausible to the Tribunal as Falun Gong is a prohibited activity in China (PRC) and a criminal offence. The Tribunal is not satisfied with her claim that a Government official would provide the use of his premises for a blatantly criminal and dangerous (to his person and career) activity.
The Tribunal accepts that the applicant has practised Falun Gong in Australia but from the Tribunal’s observation of her paucity of knowledge of fundamental Falun Gong philosophy the Tribunal finds she is not a genuine practitioner. The Tribunal rejects her explanation for her lack of knowledge as being a dislike of reading and forgetfulness. The Tribunal also finds that her poor knowledge is deliberately acquired for the purpose of the review. The Tribunal characterizes her level of knowledge as that which could be absorbed readily from a casual acquaintance with Falun Gong belief and practice that the applicant manifested in her oral evidence.
[4] CB 106
It may be wondered why the Tribunal did not at that point make a finding pursuant to s.91R(3). The answers appears to lie (as was submitted by counsel for the Minister) in the Tribunal’s apparent view that it needed to consider the possibility of a sur place claim based upon the applicant’s conduct in Australia. The Tribunal went on to say in the following paragraph in the decision at CB106-107:
The Tribunal is aware that she has claimed that, were she to return to China now or in the reasonably foreseeable future, there is a real chance that the Chinese authorities would detect her practice of Falun Gong and she would be detained for reasons of her beliefs. She claims that this is so, because she claims that she openly practises Falun Gong in Australia and has evidenced this in photographs and will continue to practise Falun Gong beliefs in private if she returns to China (PRC). This claim was made despite her insistence in the first hearing when asked that her husband and child suffered adverse attention and her claim in the second hearing that they were no longer being persecuted by the PSB. She claimed that this change of situation by the PSB had come about because they had come to realize she was not a Falun Gong leader or organizer and that was “the end” of the matter (adverse attention to her husband and child). Yet mysteriously she claimed that despite it being “the end” of the matter she would continue to suffer adverse attention herself because she would practise Falun Gong privately in China (PRC) on her return. The Tribunal finds on the whole of the evidence before it that the applicant is not a genuine Falun Gong practitioner. The Tribunal finds, furthermore, that any practice the applicant has performed in Australia and any knowledge she had gained thereby has been initiated in order to assist her refugee claims and pursuant to Regulation 91R(3) must be disregarded[5].
[5] The reference to “Regulation” 91R(3) is an obvious error and nothing turns on it.
The applicant’s complaint is directed to the sentence in this paragraph that “the Tribunal finds on the whole of the evidence before it that the applicant is not a Falun Gong practitioner”. The applicant’s argument, as I understand it, is that by making a finding which was, on its face, dispositive of the whole claim based at least in part on the applicant’s conduct in Australia, the Tribunal breached s.91R(3) because the Australian conduct was not disregarded. It is noteworthy that following its finding pursuant to s.91R(3) the Tribunal proceeded to consider afresh whether the applicant’s claims were truthful. This additional (or supplementary) consideration was detailed and resulted in the following conclusion[6]:
The Tribunal also rejects the conclusion that she is a genuine and persecuted Falun Gong practitioner because this statement of belief must be juxtaposed with the Tribunal’s findings regarding the applicant’s unreliability as a witness and her knowledge of Falun Gong as presented in the hearing. When the full gamut of her unsatisfactory claims regarding her Falun Going beliefs are subjected to intense scrutiny, the applicant’s claims cannot be accepted by the Tribunal. Furthermore, the applicant is not regarded by the Tribunal as a witness of truth. The fact that she left China (PRC) unhindered further evidences that the China (PRC) authorities had no adverse interest in her because her claims to be a persecuted Falun Gong practitioner in China (PRC) are false. The Tribunal does not believe that, should she return to China (PRC) she will continue to practise Falun Gong privately as she claimed in the second hearing. The Tribunal is not satisfied that she has a well-founded fear of persecution for a Convention reason and the chance of the applicant being of adverse interest to the China (PRC) authorities (were she to return to China in the future) is remote.
[6] CB 109
The Tribunal’s decision is not a model of clarity. There is an intermingling of consideration of the applicant’s conduct in China and Australia and four findings about the genuineness of the applicant’s claims to be a Falun Gong practitioner[7]. In my view, there is potential for the Tribunal to fall into error in relation to its obligations under s.91R(3) in a number of ways. One way it may fall into error is to commit the kind of breach identified by the Full Federal Court in SZJGV by taking into account conduct in Australia for the purposes of the disposition of the claim as a whole, notwithstanding having made a finding pursuant to s.91R(3) that such conduct must be disregarded. It is also possible for a Tribunal to fall into error by, in effect, disposing of a claim in its entirety before making any finding pursuant to s.91R(3). Whether the Tribunal has fallen into any error depends upon the circumstances and a reading of the reasons for decision of the Tribunal as a whole. If, on a fair reading, conduct in Australia is taken into account to dispose of a claim generally prior to the making of a finding that such conduct must be disregarded, then error would be apparent notwithstanding an attempt by the Tribunal to repeat its disposition of the claims generally following the finding under s.91R(3). In such circumstances the mere repetition of consideration would be artificial and achieve nothing.
[7] see CB105, 106, 107, 109
On the other hand, it may be necessary for a tribunal to make an adverse credibility finding in fairly general terms and have regard to the applicant’s claims in relation to his or her country of origin in order to make a finding under s.91R(3). In my view, that is what has occurred here. The Tribunal had regard to the applicant’s claims in relation to her experiences in China as well as to her conduct in Australia and her knowledge of Falun Gong in order to consider whether there was any reason for her conduct in Australia other than to enhance her protection visa claims. The Tribunal concluded, on the basis of the whole of the evidence, that she was not a genuine practitioner and that, accordingly, there was no reason for her conduct in Australia other than to enhance her claims. While the contrary is certainly arguable, in my view the Tribunal’s statement in the passage quoted above at paragraph 19 that the Tribunal finds on the whole of the evidence before it that the applicant is not a genuine Falun Gong practitioner was not dispositive of the applicant’s claims as a whole. The Tribunal’s subsequent and detailed examination of those claims (without any regard to her conduct in Australia) was not merely repetitive of consideration prior to the finding pursuant to s.91R(3). The credibility finding in issue formed a legitimate part of the Tribunal’s consideration of the reason for the applicant’s conduct in Australia, having found the relevant facts.
I conclude on the facts of this matter that the Tribunal did not breach s.91R(3). I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision. The application must therefore be dismissed and I will so order.
As to costs, I see no reason to depart from the Court scale. I will order that costs be paid in the sum of $5,000 by the applicant to the Minister in accordance with the scale.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 November 2008
0
8
2