SZMIL v Minister for Immigration & Anor - [2008] FMCA 1422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1422

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – credibility – whether Tribunal failed to consider the applicant’s claims – whether Tribunal failed to consider independent information – whether Tribunal had an obligation to make its own inquiries – Tribunal is not required to disprove applicant’s claim for protection – Tribunal must be affirmatively satisfied that the applicant meets the criterion for a protection visa – allegation of bias – no evidence of bias – no breach of Migration Act 1958 (Cth) s 91R – no jurisdictional error.

PRACTICE & PROCEDURE – Applicant unrepresented, unable to speak English and illiterate in her own language – leave granted to file further submissions.

Migration Act 1958 (Cth) ss.65, 91R, 424, 424A, 425, 427

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 followed.
SZJGV v Minister for Immigration and Citizenship (2008) ALR 451; [2002] FCAFC 105 followed.
SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 followed.

Applicant:

SZMIL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1378 of 2008

Judgment of:

Scarlett FM

Hearing date:

3 September 2008

Date of Last Submission:

11 September 2008

Delivered at:

Sydney

Delivered on:

17 October 2008

REPRESENTATION

Applicant:

Appeared in person

Solicitors for the Applicant

Not legally represented

Counsel for the Respondent:

Mr Potts

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1378 of 2008

SZMIL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 24^thApril 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
By her amended application filed on 29^th July 2008, the applicant seeks the following orders:
(1)a writ of certiorari to quash the Tribunal decision;
(2)a writ of mandamus directed to the Tribunal requiring it to hear and determine her application according to law; and
(3)a writ of prohibition to issue to the first respondent, the Minister for Immigration and Citizenship, to prevent any action being taken in reliance upon the decision of the Tribunal.
The applicant claims that the Tribunal did not consider her claims, that it failed to refer to proper independent information, the decision was based on evidence and was induced by actual bias.

Background

The applicant arrived in Australia on 28^th July 2007. She applied for a Protection (Class XA) visa on 4^th September 2007, claiming a well-founded fear of persecution as a Falun Gong practitioner. A delegate of the Minister invited her to attend an interview on 23^rd October 2007. She did not attend the interview.
The delegate refused her application on 24^th October 2007, on the basis that the applicant had not substantiated her claims and the delegate was not satisfied that she was a genuine Falun Gong practitioner.
The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 26^th November 2007. No additional documentary claims were made with the application for review.

Application for Review by the Refugee Review Tribunal

The Tribunal wrote to the applicant on 6^th December 2007, inviting her to attend a hearing on 24^th January 2008. The Tribunal received a Response to Hearing Invitation on 12^th December 2007, in which the applicant indicated that she wished to attend the hearing and required the services of a Mandarin interpreter.[1]
[1] See Court Book at 60.
When the applicant attended the hearing, she told the Tribunal that she required the services of a Fujian interpreter. The Tribunal adjourned the hearing to the 5^th February 2008. The applicant attended the hearing on that day and gave evidence with the assistance of a Fuqing interpreter. She produced her Chinese passport at the hearing.
After the hearing, on 7^th February 2008, the Tribunal wrote to the applicant, seeking her comments on certain information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The letter, written to comply with s 424A of the Migration Act, set out information about matters that had been discussed at the Tribunal hearing and why the Tribunal considered it to be relevant. The Tribunal invited the applicant to comment in writing by 3^rd March 2008. Due to a clerical error, the letter was addressed to another person, at the applicant’s postal address.
The applicant replied to that letter, even though it had someone else’s name on it, in a letter dated 19^th February 2008, that the Tribunal’s date-stamp shows as having been received on 21^st February. In that letter the applicant stated:
I have been in different Falun Gong activities in Sydney after I came to Australia. I can not return to China any more. At the hearing I did not explain myself very well, I had not received much attention in China. I that you can take into account the above mentioned and consider my application favourably.[2]
[2] Court Book at 81
The Tribunal again wrote to the applicant, this time on 26^th February 2008. This letter addressed the applicant by her proper name. The letter referred to the applicant’s response and set out further information upon which the Tribunal sought the applicant’s comments. The letter sought the applicant’s comments by 20^th March 2008.
The applicant replied on 19^th March 2008, saying:
I provided some information from my initial information, what I mentioned at the statement should be the same as what I mentioned at my hearing, except some extra information I had not provided at the beginning.
I have been practicing Falun Gong here in Australia, I worry about my safety. I hope I can have protection from Australian Government.[3]
[3] Court Book at 85

The Refugee Review Tribunal Decision

The Tribunal handed its decision down on 24^th April 2008, affirming the decision not to grant the applicant a Protection (Class XA) visa.

The Tribunal’s Findings and Reasons

The Tribunal accepted that the applicant was outside her country, the People’s Republic of China. It noted her claim that she had suffered harm in China as a practitioner of Falun Gong. However:
The Tribunal did not find the applicant to be a credible witness for the reasons set out below.[4]
[4] Court Book 102
The Tribunal set out these reasons:
·    The applicant could not say how she practiced Falun Gong;
·    She did not say anything about the five exercises;
·    She did not know anything about the principles of Falun Gong; and
·    Although she claimed to be illiterate, she should, as a person who claimed to have been a practitioner since 1996, had some knowledge of Falun Gong principles and practice.
The applicant made a general claim that there was no freedom in the People’s Republic of China, but that claim was general and lacking in detail. She produced no evidence or information as to the harm she might face.
The Tribunal found:
On the above evidence and findings and for the above reasons the Tribunal finds that the applicant is not a truthful witness and her statements both to the Department and to the Tribunal lack credibility…
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in her country, PRC, because of her political opinion, her imputed political opinion, her membership of a particular social group, her religion or her imputed religion, or for any other Convention reason, Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if she returns to PRC.[5]
[5] Court Book 103
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if she were to return to China and was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.

Application for Judicial Review

The applicant commenced proceedings in this Court on 25^th May 2008. She filed an amended application on 29^th July 2008. In her amended application the applicant relies on these grounds of review:
(1)The Tribunal failed to consider the claims of my application. The Tribunal did not consider the activities I have participated in Australia, and my practice of Falun Gong will cause further persecution to me on my return to China.
(2)The Tribunal failed to refer to proper independent information for the consideration of my application.
(3)The Tribunal’s satisfaction that I am not a refugee was not based on evidence and materials. The decision was biased.
(4)The Tribunal did not know the situation in China well enough to make a decision on my application. The decision was induced by actual bias of the officer.
The applicant did not file a written outline of submissions.

She attended Court and made submissions with the assistance of a Fuqing interpreter. In answer to questions from the Bench as to why she claimed that the Tribunal Member was biased she said that she was not sure. She also said that, in respect of ground 2 of her application, that the Tribunal should have made its own inquiries about the circumstances in China.
The applicant told the Court that she could not read and produced a written statement in Chinese that had been prepared for her by someone else. The interpreter read out the statement.
The submission is that the Tribunal did not consider her issues according to s 91R of the Migration Act and did not consider her case according to independent information. The Tribunal was biased. It did not consider the usual procedures. It did not have sufficient information to make a decision.
The applicant further submitted that the Tribunal did not consider whether there was a real chance of persecution on her return to China. The Tribunal decision was not based on evidence but on a presumption. The Tribunal did not consider that she would be persecuted if she returns to China because she participated in Falun Gong activities in Australia.
The applicant said that she had participated in demonstrations in Australia. She told the Court she was not sure whether the demonstrations were related to Falun Gong activities.
Counsel for the Minister, Mr Potts, submitted that the applicant’s case before the tribunal had failed for a simple, yet fundamental, reason. The Tribunal did not believe her story. There was a complete disbelief of all of the factual elements of the applicant’s claim.
As to the applicant’s first ground, Mr Potts submitted that the Tribunal referred to each of the applicant’s claims in its reasons, at paragraphs [39], [40], [49] and [52] of its Decision Record. It dealt with all of those claims in its Findings and Reasons, in its rejection of the applicant’s claims that she had ever been a Falun Gong practitioner, whether in China or Australia.
Mr Potts further submitted that the Tribunal did consider what would happen if the applicant returned to China, at paragraph [60] of the decision.
As to the second ground of review, Mr Potts submitted that the Tribunal was under no obligation to refer to any of the independent information to which the applicant referred.
Dealing with the applicant’s third ground, Mr Potts submitted that the Tribunal was not required to be satisfied that the applicant was not a refugee and that it was for the applicant to satisfy the Tribunal that she was.
The applicant claimed that the decision was biased, but Mr Potts submitted that this was a bare assertion with no foundation in fact. Bias is a serious allegation and will rarely be established from the reasons for decision alone (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs[6] ).
[6] (2002) 194 ALR 749; [2002] FCAFC 361
Turning to the applicant’s fourth ground, Mr Potts submitted that there is no basis to object to the Tribunal’s decision just on the mere assertion that “somehow the situation in china was not sufficiently well known”. Further, the allegation that the decision was induced by actual bias was a wholly unsupported and unsupportable assertion.
Mr Potts dealt with the applicant’s claim made at the hearing that the Tribunal did not consider her case according to s 91R of the Migration Act, pointing out that the Tribunal set out a summary of the relevant law at paragraphs [13] to [15] of the Decision Record. He also referred the Court to the decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship and Anor[7] at [22], that s 91R(3) can only be applied once primary findings of fact have been made. If the Tribunal decides that conduct in Australia has not in fact occurred, there will be nothing to disregard.
[7] (2008) 247 ALR 451; [2008] FCAFC 105
Finally, Mr Potts submitted that there was nothing to show that the Tribunal had not followed normal procedures.
The applicant was somewhat at a loss to reply to the oral submissions made by counsel for the Minister. Taking into account that she was not legally represented, does not speak English and claims to be illiterate in her own language, I granted leave to file further written submissions. The applicant was given leave to file and serve a further submission by 18^th September and the Minister was given leave to file any supplementary submission by 25^th September 2008.
The applicant filed a written submission on 11^th September 2008, saying:
The Tribunal did not believe my claims because of their bias against me. The application was not considered according to Migration Law 1958.
I was misunderstood when I explained my application at the hearing. The Tribunal refused my application based on some incorrect information.
The information the Tribunal referred to was out to date, and irrelevant.
The decision to refuse my application was incorrect and was biased.
My case should be remitted to the Tribunal for reconsideration.
The Minister’s lawyers informed the Court that they would note be filing any submissions in reply and would rely on their earlier written submissions filed on 28^th August 2008.

Conclusions

It is clear that the Tribunal dismissed the applicant’s claims because it was not satisfied that the applicant was a credible or truthful witness.

It comprehensively dismissed her claim to be, or ever to have been, a Falun Gong practitioner.
The applicant’s Ground 1 claims that the Tribunal failed to consider her claims and did not consider the activities in which she asserted she had participated in Australia. I am satisfied that the Tribunal did address all of the applicant’s claims, at paragraphs [39], [40], [49] and [52] of its decision[8].
[8] Court Book 98, 100 and 102
It is clear that the Tribunal specifically addressed the applicant’s claims about her activities in Australia:
At the hearing, the Tribunal asked the applicant if she practised Falun Gong in Australia and the applicant stated that she had been to the demonstration once or twice. The Tribunal asked the applicant what she did at the demonstration and she stated walked around.[9]
[9] Court Book 98
Again, at paragraph [52] of the Decision Record, the Tribunal stated:
She also claimed that she practises Falun Gong in Australia and she is worried about her safety.[10]
[10] Court Book 102
I am satisfied that the applicant’s Ground 1 has not been made out.
The applicant’s Ground 2 claims that the Tribunal failed to refer to proper independent information for the consideration of her application.
The Tribunal was under no obligation to make its own inquiries. It is true that s 424 of the Act provides that the tribunal may get any information that it considers relevant, but no obligation is placed upon it do so.
The applicant’s Ground 2 has not been made out.
The applicant’s Ground 3 claims that:
(a)the Tribunal’s satisfaction that the applicant was not a refugee was not based on evidence; and
(b)the decision was biased.
The Tribunal’s obligation under s 65 of the Act, standing in the shoes of the Minister, is to grant the visa if satisfied that the criteria for the visa have been met. If not so satisfied, the Tribunal must refuse the visa.
The applicant’s allegation of bias is neither particularised nor supported by any evidence. An allegation of bias is a serious matter involving personal fault on the part of the Tribunal Member. It should not be lightly made and must be clearly alleged and proved. The circumstances in which a Court will find that the Tribunal has not acted in good faith are rare and extreme, especially where all that the applicant relies on are the written reasons for decision (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs[11] at [43] and [44]; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs[12] at [16], per Tamberlin, Mansfield and Jacobson JJ). There is no evidence of bias.
[11] (2002) 194 ALR 749; [2002] FCAFC 361
[12] [2002] FCAFC 358
The applicant’s Ground 3 fails.
The applicant’s Ground 4 again alleges bias and claims that the Tribunal did not know the situation in China well enough to make a decision on her application.
There is no evidence of bias on the part of the Tribunal. The claim of a lack of knowledge of the situation in China is not a claim that goes to jurisdictional error. If anything, it is an attempt to argue with the Tribunal’s findings of fact, being an attempt at merits review. It is well establish that merits review is not available on an application for judicial review. If the applicant wished the Tribunal to consider factual matters relating to China, it was open to her to submit country information to the Tribunal.
The applicant’s Ground 4 fails.
The applicant claimed at the hearing that the Tribunal did not consider her case according to s 91R of the Act.
As counsel for the Minister submitted, the Tribunal stated at paragraphs [13] to [15] of the Decision Record that an applicant must fear persecution and then went on to set out what that meant, referring to

s 91R:
·    Persecution must involve “serious harm’;
·    Persecution implies an element of motivation on the part of those who persecute for the infliction of harm;
·    The persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.[13]
[13] Court Book 93
Counsel for the Minister also referred the Court to the decision of the Full Court of the Federal Court (Spender, Edmonds and Tracey JJ) in SZJGV v Minister for Immigration and Citizenship & Anor[14], where their Honours said at [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 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 para 9b) may have application. If it has occurred then consideration must be given to the requirements of s 91R (3).
[14] (2008) 247 ALR 451; [2008] FCAFC 105

In this case, the Tribunal comprehensively dismissed the applicant’s claims to be a Falun Gong practitioner on the grounds of credibility. There was no conduct in Australia to disregard under s 91R (3).
The applicant also claimed that the Tribunal did not follow normal procedures.
The Tribunal invited the applicant to a hearing under the provisions of s 425. On the first occasion, when the applicant expressed difficulty in giving evidence in Mandarin, the language in which her Response to Hearing Invitation had stated she would like an interpreter, the Tribunal adjourned the review under s 427(1) (b) so that an interpreter in the Fuqing dialect could be available.
The Tribunal put information in writing to the applicant for her comments under s 424A and considered her written response.
In short, the Tribunal did not deviate from the procedure set out by the Migration Act.
No jurisdictional error has been made out in the application, or the applicant’s oral and written submissions. The Tribunal decision is a privative clause decision as defined by s 474(2) of the Migration Act.

It is not subject to certiorari, mandamus or prohibition.
The application will be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 10 October 2008