SZMEO v Minister for Immigration & Anor
[2008] FMCA 1063
•8 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1063 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal decision – Chinese person claiming persecution for Falun Gong practice – disbelieved by Tribunal – credibility – allegation of bias - no jurisdictional error found. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZEPZ v The Minister for Immigration & Citizenship [2006] FCAFC 107 followed Minister for Immigration & Ethnic Affairs v Wu Shan Liang[1996] 185 CLR 259 referred to. SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 referred to SZJYA v Minister for Immigration & Citizenship [2008] FCA 911 referred to. |
| Applicant: | SZMEO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1024 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 July 2008 |
| Date of Last Submission: | 8 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1024 of 2008
| SZMEO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of China. By his application, he asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 13 March 2008 and handed that decision down on 25 March. The Tribunal affirmed the decision of a Delegate of the Minister for Immigration & Citizenship not to grant the applicant a protection (Class XA) visa.
The applicant now seeks orders from the Court to this effect:
(1)a declaration that the decision of the Refugee Review Tribunal was made in error of jurisdiction and is, therefore, null and void.
(2)an order in the nature of certiorari that the decision of the Refugee Review Tribunal be set aside.
(3)an order in the nature of mandamus that his application be remitted to a differently constituted Tribunal to be re‑heard according to the law.
I would comment at this stage that, in order to make the orders that the applicant seeks, the Court will need to be satisfied that the Tribunal decision is affected by jurisdictional error.
If the Court is satisfied that an order in the nature of mandamus should be issued, I am not persuaded that the Court should order that the Refugee Review Tribunal should be differently constituted. There is considerable doubt that the Federal Magistrates Court has the power to make an order relating to the constitution of the Refugee Review Tribunal, which is a function reserved for the Principal Member of the Tribunal.
In this regard, I follow the decision of the Full Court of the Federal Court in SZEPZ v The Minister for Immigration & Citizenship[1].
[1] [2006] FCAFC 107
In any event, the applicant has, in his application, set out seven grounds in which he alleges jurisdictional error.
The background to this matter is that the applicant arrived in Australia on 4 August 2007. A month later, on 4 September, he applied for a Protection (Class XA) visa. He accompanied his application with a typed statement in which he set out that he was seeking protection because of his practice of Falun Gong. He claimed that after he had become a Falun Gong practitioner he was dismissed from his employment and was, therefore, deprived of an income. He claimed to have been unemployed for several years.
He also claimed that a colleague of his, who was also a Falun Gong practitioner, had disappeared and had been detained and that he later found out that that person had died whilst in detention.
The applicant claimed to have continued to work even harder to spread Falun Gong and eventually, with assistance from friends and by payment of what appears to be a bribe, did obtain a passport and eventually obtained a visitor's visa and was able to come to Australia.
A copy of the applicant's typed eight‑page statement can be found at pages 27 to 34 of the Court Book.
The Department of Immigration & Citizenship wrote to the applicant, care of his migration agent, on 17 October 2007 inviting the applicant to attend an interview on 30 October 2007. The applicant clearly did so.
However, on 7 November 2007, the Minister's delegate refused to grant the applicant a Protection (Class XA) visa. The delegate considered the applicant's claims to be a Falun Gong practitioner and to have suffered persecution in China which resulted in his leaving China for Australia. However, the delegate was not satisfied that the applicant was a Falun Gong practitioner and set out a variety of reasons.
Whilst the delegate accepted that the persecution of Falun Gong practitioners occurs in China, the delegate was not satisfied that the applicant had engaged in the practice of Falun Gong. He went on to say:
Even if I was to accept that the applicant practised Falun Gong in China, he has not, and will not be practising for at least six months in Australia. This casts grave doubts regarding his continued practice[2].
[2] See Court Book at page 8
After the applicant's application for a visa was refused, he applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal received his application at its Sydney Registry on
14 December 2007. The applicant disclosed the name and address and telephone numbers of his migration agent and the Tribunal wrote to the migration agent on 17 December acknowledging receipt of the application.
The Tribunal wrote again on 15 January 2008. This letter was headed 'Invitation to Comment on/ Respond to Information in Writing'. In that letter the Tribunal invited the applicant to comment on, or respond to, information that the Tribunal considered would, subject to any comments or responses that the applicant made, be the reason, or a part of the reason, for affirming the decision that was under review.
The letter set out particulars of the information upon which the applicant's comments or responses were sought. That information related to the applicant's reasons for applying for protection in the statement attached to his application lodged on 4 September 2007, his statements at the departmental interview on 30 October 2007, independent country information about Falun Gong, including its exercises and the crackdown on Falun Gong in China, and the availability of fraudulent documentation in China.
The letter then set out why the information was considered to be relevant and invited the applicant to provide comments or a response by 29 January 2008.
A copy of the Tribunal's letter, which was clearly written to comply with the requirements of s.424A of the Migration Act, can be found in the Court Book at pages 66 to 74.
The applicant replied by means of a two‑page statement faxed to the Tribunal on 29 January. A copy of that statement appears at pages 75 to 76 of the Court Book. The Tribunal wrote to the applicant's migration agent on 30 January 2008 inviting the applicant to appear at a hearing on 19 February. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
His migration agent also attended the hearing.
Those details are set out in the RRT hearing record, a copy of which appears at pages 80 to 81 of the Court Book. The applicant provided his passport which was photocopied by a Tribunal officer.
The Tribunal signed its decision on 13 March and handed it down on 25 March 2008. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. A copy of the Tribunal record can be found in the Court Book at pages 95 to 111.
The decision record sets out the claims and evidence from the Department's file, including the applicant's protection visa application and his departmental interview. The Tribunal referred to the contents of the s.424A letter sent to the applicant on 15 January 2008 and the applicant's response dated 29 January 2008.
The Tribunal also set out a summary of the applicant's Tribunal hearing on 19 February. The Tribunal considered independent country information about Falun Gong and the crackdown on Falun Gong in China. The Tribunal also considered country information about the ease of obtaining all kinds of fake documents in China. The Tribunal's findings and reasons are set out on pages 108 to 111 of the Court Book.
The Tribunal found, on the basis of the applicant's passport, that he was a citizen of The People's Republic of China. However, the Tribunal was not satisfied that the applicant was a genuine and committed Falun Gong practitioner. It set out its reasons why it formed that view, which included the fact that the applicant was not able to name the five Falun Gong exercises and was not able to demonstrate three of them.
The Tribunal found aspects of the applicant's claims difficult to accept and found it implausible that if he were a genuine and committed Falun Gong practitioner that he would not have continued his practice of Falun Gong soon after his arrival in Australia. The Tribunal did not accept the applicant's comments and explanation of why he was not practising Falun Gong in Australia. The Tribunal referred to inconsistencies in the applicant's evidence on a variety of matters.
The Tribunal then made these comprehensive findings which go directly to the applicant's credibility:
Given the findings above, the Tribunal finds that the applicant is not a witness of truth and has not given a truthful account of his past experiences in China, in particular the circumstances relating to his practice of Falun Gong and the events which led to his departure from China and his claims for protection.
Given the findings above, the Tribunal does not accept that the applicant was, or is, a genuine and committed Falun Gong practitioner. The Tribunal does not accept that the applicant has practised Falun Gong in China or Australia. The Tribunal does not accept that the applicant has come to the adverse attention of the Chinese authorities as a result of his claim to practise Falun Gong or for any other Convention reason.
The Tribunal does not accept that the applicant was dismissed from his employment in April 2004 or experienced problems relating to his contract in 2001 because of his practice of Falun Gong or his political performance more generally. The Tribunal does not accept that the applicant was detained by the authorities in September 2004 because of his practice of Falun Gong.
In light of the independent evidence that fraudulent documents can be very easily obtained in China, the Tribunal places no weight on the documentary evidence claimed to be from the Tie Ling Municipal PSB confirming his detention[3].
[3] See Court Book at page 110
The Tribunal was not satisfied that the applicant held any genuine or well‑founded fear of harm for convention reason should he return to China and affirmed the decision not to grant the applicant's Protection (Class XA) visa.
The applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 22 April 2008. He sets out seven grounds which I shall summarise:
(1)the Tribunal failed to carry out its statutory duty because it failed to comply with the provisions of s.424A of the Migration Act in that it failed to give particulars of information from the departmental file and the Tribunal file which it did not put to him for comment.
(2)the applicant claimed the Tribunal failed to give him important information completely and clearly during the hearing, which had been used as the reasons or part of the reasons for affirming the decision that was under review.
(3)the Tribunal failed to ensure that the applicant understood why independent country information was relevant to the review.
(4)the applicant claimed it was impossible for him to have a fair chance to comment on independent information before the Tribunal affirmed the decision.
(5)the Tribunal failed to observe its obligations under s.425 of the Migration Act at the hearing and should be entitled to give oral evidence but he claimed that his ability to do so was either deprived from him or restricted because he was often interrupted by the Member or the interpreter.
(6)the applicant claimed that he did not file further submissions after the hearing because it was very risky for him to have evidence of persecution transferred to Australia from China.
(7)
the applicant reiterated that it was true that he suffered persecution in China because of his Falun Gong involvement.
He claimed that several of his friends in a similar situation as his had been granted refugee status in Australia. He was treated differently by a different Tribunal member. He feels that he was treated unfairly by the Tribunal.
The applicant has not filed any written outline of submissions but attended Court. He was offered the opportunity to make oral submissions but indicated that he had nothing further to say. The Minister for Immigration & Citizenship has filed a written outline of submissions and Ms Griffin, the solicitor appearing for the Minister, made oral submissions.
The applicant was given the opportunity to reply to those oral submissions. He said that some information he gave to the delegate at his departmental interview was misinterpreted by the interpreter provided and that he tried to mention this fact to the Tribunal member at the hearing. He complained, however, that the Tribunal member did not answer that complaint directly. He said that when he tried to explain to the Tribunal matters about Falun Gong, the Tribunal member interrupted him to say 'Don't tell me all the philosophy'. So the applicant said that he just answered 'Yes' or 'No' to the Member's questions.
The Minister for Immigration & Citizenship submitted that the Tribunal did comply with the requirements of s.424A of the Migration Act and did consider the applicant's replies and comments which were provided.
As to the claim that the Tribunal failed to give the applicant important information during the hearing which was information that had been used as the reason, or part of the reason, for affirming the decision, the Minister submits that the Tribunal was not bound to do so at the hearing because it had already done so in its s.424A letter. In any event, the Tribunal gave the applicant an opportunity to respond orally to the issues raised in the letter.
In reply to ground 3, the Minister submits that the Tribunal was under no obligation to notify the applicant of independent country information because of the exception operating in s.424A(3)(a) referring to Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCA FC 264.
In any event, however, the Tribunal did set out that information in its s.424A letter.
As to the applicant's fourth ground, complaining that it was impossible for him to have a fair chance to comment on the independent country information, the Minister submits there is no obligation on the Tribunal to provide the applicant with that opportunity but did so anyway in the s.424A letter.
As to the applicant's claim that the Tribunal failed to observe its obligations under s.425 of the Act but was often interrupted by the Member and the interpreter, the Minister submits that the applicant was provided with a hearing in accordance with s.425, was made area of all the live issues before the Tribunal and was given an opportunity to respond[4].
[4] See SMBL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] 81 ALJR 515
The Minister further submitted that it did not demonstrate a failure to comply with s.425 of the Act by reasons of interruption to the hearing. The applicant had to establish that, as a result of those interruptions, he was effectively precluded from taking part in the hearing[5]. The Minister submits there was no evidence to support that.
[5] See Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553 at [37]
As to the applicant's sixth ground, that he did not file further submissions after the hearing because of the risk of having evidence of persecution transferred to Australia from China, the Minister submits that the Tribunal was not required to assist the applicant in making his case, but the applicant was asked whether he wished to provide any further information or evidence in relation to his claims but he replied that he did not.
As to the seventh ground where the applicant reiterates his claim he suffered persecution in China and expresses a grievance that several of his friends have been granted refugee status but he had been treated differently and claims that he had been treated unfairly, the Minister submits that a disagreement with the Tribunal's decision does not amount to an error of law and it is not the function of this Court to engage in merits review, referring to Minister for Immigration & Ethnic Affairs v Wu Shan Liang and Others[6]. Insofar as the applicant was alleging bias or bad faith, it was well settled that any allegation of bias must be distinctly made and clearly proved[7]. But there was no evidence that this had been done.
[6] [1996] 185 CLR 259
[7] See SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Accordingly, the Minister submits that no jurisdictional error has been made out.
In oral submissions Ms Griffin referred to the fact that the Tribunal is not required to put to the applicant independent country information or material that the applicant gave in the process leading to the review under sections 424A(3)(a) and B(a) of the Act.
It is further submitted that there was no breach of s.425 and, even though there were circumstances, as set out in the decision of Rares J in SZJYA v Minister for Immigration & Citizenship[8], where notwithstanding an applicant's failure to provide a transcript of the Tribunal hearing, there may be circumstances where it is unclear from the decision record as to whether or not relevant issues had been put to the applicant, Ms Griffin, however, submitted that the Court should distinguish SZJYA on the facts as the Tribunal had clearly put the issues to the applicant.
[8] [2008] FCA 911
In dealing with the seven grounds in the application, it should be borne in mind that the Tribunal rejected the applicant's claim on credibility. The Tribunal was not satisfied that the applicant was a witness of truth. Credibility is a factual finding. Factual findings are matters for the administrative maker: in this case, the Member of the Refugee Review Tribunal. So long as there is evidence upon which a factual finding is open to be made, it is not the function of the Federal Magistrates Court, on judicial review, to interfere.
In my view, it was open to the Tribunal to make credibility findings or a finding of adverse credibility about the applicant as the Tribunal had heard the applicant's evidence at the hearing, had considered the applicant's documentation and had considered the substance of the applicant's claims and the applicant's responses to matters put by the Tribunal to the applicant in its extensive s.424A letter of 15 January 2008 and also orally during the hearing.
Dealing with the applicant's claim of a breach of s.424A of the Migration Act, it is clear that the Tribunal did comply with s.424A.
It wrote an extensive letter to the applicant setting out information, explaining why it was relevant and seeking comments or a response. Some of that information, such as independent country information, or information that the applicant had supplied, need not have been put under the provisions of s.424A because it was excluded under subs.424A(3) (a), 3(b) or 3(b)(a). The applicant had complained that what was not put to him, amongst other things, was 'The Tribunal also has had regard to the material contained in the Tribunal file including the application for review'. That clearly is covered by s.424A(3)(b).
In any event, the Tribunal put this material to the applicant.
The applicant was given an opportunity to reply, and did reply, and the Tribunal considered that reply. There is no breach of s.424A of the Migration Act.
As to ground 2, the applicant appears to be complaining that the Tribunal did not comply with the requirements of s.424AA of the Migration Act. It does not appear to me that that claim can be made out. As Ms Griffin, who appeared for the Minister, pointed out to me, the Tribunal put a number of matters to the applicant during the hearing for his comment. They can be found at pages 104 and 105 of the Court Book. In particular, at page 105 there are seven separate sets of matters put by the Tribunal to the applicant where the applicant stated that he had no further information to provide on that particular issue. It is noteworthy that the Tribunal also records:
The Tribunal asked the applicant whether he wished to provide any further information or evidence in relation to his claims. The applicant stated that he did not[9].
[9] See Court Book page 105
In my view, the Tribunal decision record indicates quite clearly that the Tribunal put a significant number of issues, being issues from the applicant's own evidence, that, amongst other things, might be the reason or part of the reason for affirming the Tribunal decision, for his comment or explanation or response and the applicant indicated that he had no further information to provide.
The information had largely been put to the applicant before the hearing, in any event, in the Tribunal s.424A letter. In my view, the applicant's ground 2 fails.
The applicant's ground 3 claiming that the Tribunal failed to ensure that the applicant understood why the independent country information was relevant to the Tribunal is just not factually correct. It is clear from page 105 of the Court Book in particular that the Tribunal had done exactly that. Ground 3 fails.
Ground 4, similarly complaining that it was impossible for him to have a fair chance to comment on the independent country information before the Tribunal affirmed the decision, failed for two reasons.
One: the independent country information was put to the applicant before the hearing in the Tribunal s.424A letter of 15 January.
Two: significant issues from the independent country information were put to the applicant during the hearing. In my view the applicant was afforded ample opportunity to comment on that material.
The applicant claims in ground 5 that the Tribunal failed to observe its obligations under s.425 of the Act because he was interrupted at the hearing by the Member and by the interpreter. There is no evidence of that. The Tribunal decision record suggests the reverse, if anything. The Tribunal decision record shows the applicant having a number of questions put to him and not taking the opportunity to provide any further information but stating that he had no information to provide.
The applicant has not filed any affidavit setting out examples of how he was interrupted by the Tribunal or by the Member. It is noteworthy that not only did the applicant attend the hearing, so too did his migration agent, one Grace Chen who is recorded as being present at the hearing. It would have been open both to the applicant and Ms Chen to depose to affidavits complaining about the behaviour of the Tribunal Member if the Member, or the interpreter, had kept interrupting the applicant so he did not get a fair chance to give his account. That opportunity was not taken.
The applicant did receive a copy of the recording of the Tribunal hearing. At page 89 of the Court Book there appears a copy of a letter dated 20 February 2008 addressed to the applicant's migration agent, enclosing a copy of the recording of the hearing that had been held the day before. It would have been possible for the applicant to have provided a transcript of the hearing or, even if it were relevant, to make an application to the Court that the recording of the hearing, or relevant parts of it, should be played in Court. This was not done.
I am not satisfied that the applicant has demonstrated that he was interrupted by anyone at the hearing. In my view, the evidence appears clear that s.425 was complied with. The Tribunal wrote to the applicant inviting him to attend a hearing. He attended the hearing, accompanied by his migration agent. He was provided with the services of a qualified interpreter in the Mandarin language, as was set out in the Tribunal's hearing record which appears at page 82 of the Court Book. The name of the interpreter is given. The record indicates that the interpreter is qualified in Mandarin at NAATI level 3.
The Tribunal rejected the applicant's claim for a protection visa on credibility grounds. The Tribunal was not satisfied that the applicant was a truthful witness. It was not satisfied about the credibility of his claims to have been a Falun Gong practitioner. This was what the delegate decided after the applicant had attended an interview with the delegate. The applicant had received a copy of the delegate's reasons when his application for a visa was refused. The applicant, therefore, should have been well aware of what the issues were.
Accordingly, I am satisfied that the Tribunal complied with the provisions of s.425 of the Act, that he was given the opportunity to give evidence and that he was aware of the live issues before the Tribunal and given an opportunity to respond. It would appear to me that the Tribunal's actions comply with the requirements set out by the High Court in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs[10]. The applicant's fifth ground fails.
[10] [2006] 81 ALJR 515
The applicant's sixth ground provides an explanation as to why he did not file a further submission after the hearing. That may or may not be so but it is not a ground that alleges jurisdictional error. The Tribunal, in any event, had asked the applicant if he wanted to provide further evidence or further information in relation to his claims and the applicant said that he did not[11]. The applicant's sixth ground fails.
[11] See Court Book at page 105
The applicant's seventh ground largely reiterates the applicant's claim that he is a refugee and complains that other friends of his in what he says were in a similar situation as his, had been given protection visas. He complains that he has missed out. The ground in that respect has no weight whatsoever.
Each claim for a visa must be considered on its own merits. It does an applicant no good at all to say 'Well, he or she claimed to be a Falun Gong practitioner and he or she got a visa'. The Tribunal was under no illusions about the fact that Falun Gong practitioners are persecuted and can be persecuted in China. However, in this case the Tribunal was not satisfied that the applicant was a Falun Gong practitioner. Whether the applicant's friends were genuine Falun Gong practitioners or not, if they were granted protection visas, the only inference is that the Refugee Review Tribunal was satisfied that they had shown that they had a well‑founded fear of persecution for a convention reason. In the applicant's case, the Tribunal was not so satisfied.
The other part of the applicant's claim is that he feels that he was treated unfairly by the RRT Member. If that is a claim of bias or bad faith, it has not been particularised and it is not supported by any evidence.
It is well established that an allegation of bias must be distinctly made and clearly proved. My attention has been drawn to the decision of Middleton J in SZHPD v Minister for Immigration & Citizenship [2007] SCA 157 where his Honour said at[22]:
There is no basis upon which I can conclude that the allegation of bias is distinctly made and clearly proved. Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69] per Gleeson CJ and Gummow J. There is simply no evidence to support such a contention.
In my view, that clearly sets out what is required, with the greatest of respect, and I note, although nothing at all turns on it, that SZHDP v Minister for Immigration was an appeal from a decision of mine.
It is also well established that allegations of bias or bad faith must be clearly made, clearly proved. It is a rare and extreme case where bad faith or bias will be established just from the Tribunal's reasons for decision[12]. In this case, there is no evidence of bias or bad faith.
[12] See SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FC 358 and also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361.
In my view, the applicant has not made out any case showing jurisdictional error on the part of the Tribunal. It appears to me, with respect, the Tribunal decision was a thorough decision where the Tribunal Member went to some trouble to comply with the requirements of s.424A and, indeed, s.424AA of the Migration Act. Certainly, my reading of the Tribunal decision discloses no arguable case for any jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Privative clause decisions are final and conclusive and not subject to declaration or orders in the nature of certiorari or mandamus which the applicant seeks. (See s.474(1) .
Accordingly, it follows that the application must be dismissed.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 28 July 2008
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