SZMJF v Minister for Immigration

Case •

[2008] FMCA 1608

•

9 September 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1608
MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his membership of Falun Gong – allegation of bias – privative clause – no reviewable error.
Migration Act 1958 (Cth), ss.91R, 424A, 425, 474
SAAP v Minister for Immigration & Multicultural Affairs [2005] HCA 24
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, 18
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBBF v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 358
Applicant: SZMJF
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1452 of 2008
Judgment of: Scarlett FM
Hearing date: 9 September 2008
Date of Last Submission: 9 September 2008
Delivered at: Sydney
Delivered on: 9 September 2008

REPRESENTATION

Solicitors for the Applicant: In person
Counsel for the Respondents: Mr Mitchell
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the First Respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1452 of 2008

SZMJF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. The applicant is a citizen of People's Republic of China.  He asks the Court to review a decision of the Refugee Review Tribunal that was handed down in 6 May 2008.  The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a Protection (Class XA) Visa.  By his amended application filed on 12 August 2008 the applicant seeks the following:

    i)A writ of certiorari to quash the decision of the Refugee Review Tribunal;

    ii)A writ of mandamus directed to the Tribunal requiring it to hear and determine the application of the applicant according to law;

    iii)A writ of prohibition against the 1st respondent, the Minister for Immigration & Citizenship to prevent any action being taken by the Minister in reliance upon the Tribunal decision.

  2. I have explained to the applicant that in order to make the orders which he seeks the Court must first be satisfied that the Tribunal decision is affected by jurisdictional error.   The applicant sets out two grounds in his amended application which may be summarised as:

    i)That the Tribunal did not consider that the applicant's activities in support of Falun Gong in Australia would put him in further danger on is return to China;

    ii)That the Tribunal failed to comply with the requirements of s.424A of the Migration Act in respect of information that was the reason, or part of the reason, for affirming the decision.

  3. The applicant relies on the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural Affairs[1].   I note that the decision contains an incorrect citation in the amended application.

    [1] [2005] HCA 24

Background 

  1. The background to this matter is that the applicant arrived in Australia on 3 October 2007.  He applied for a Protection (Class XA) Visa on 12 November in that year.  He applied on the basis that he was a Falun Gong practitioner and claimed in a statement in support of his application for a visa that he had become interested in Falun Gong in 1998.  After Falun Gong was banned in 1999 the applicant claimed that he was investigated by the police, detained and suffered both physical and mental torture.

  2. He claimed to have been arrested again in May 2007 and whilst he was detained his wife borrowed a large sum of money from relatives and friends to pay bribery money to the police to secure the applicant's release.  The applicant claimed that after being released he obtained a visa to come to Australia but owes a lot of money and is in deep debt.  He claims to fear persecution on his return to China.

  3. A Delegate of the Minister considered his application but refused the application on 8 February 2008.  The application was refused on the basis that whilst the Delegate accepted that many Falun Gong practitioners had suffered persecution in the form of arrest and detention and physical and mental mistreatment and had been sentenced to imprisonment or had been sent to labour camps or had even been tortured to death the applicant's knowledge of the practice and concepts and history of Falun Gong did not support his claim to have been a member.

  4. The Delegate found aspects of the applicant's claim to be implausible and noted that he had not provided any documentary evidence to support his claims.  Accordingly the Delegate was not satisfied that the applicant is or ever was a practitioner of Falun Gong or that he would be of any future interest to the Chinese authorities if he were to return to China[2].

    [2] See Court Book at page 38 -39

Application to the Refugee Review Tribunal   

  1. The applicant then applied to the Refugee Review Tribunal for a review of the Delegate's decision.  The Tribunal received his application for review on 15 February 2008.  No additional documents were provided in support of the applicant's application for review. 

  2. The Tribunal wrote to the applicant on 3 March 2008 and invited him to attend a hearing to take place on 7 April.  The applicant attended the hearing on 7 April 2008 and gave evidence with the assistance of an interpreter in the Cantonese language.  He had requested a Cantonese interpreter in his response to hearing invitation sent into the Tribunal[3].  The applicant provided his Chinese passport for the Tribunal in support of his claims.  The Tribunal signed its decision on 16 April 2008 and handed that decision down on 6 May.

    [3] See Court Book at page 48

  3. A copy of the Tribunal decision record can be found in the Court Book at pages 61 through to 76.  The Tribunal set out the applicant's claims and evidence from the following sources:

    i)Information on the Department's file;

    ii)Independent Country Information about Falun Gong and the treatment of Falun Gong practitioners in China and also on passport and exit procedures from the People's Republic of China.

  4. The Tribunal considered in some detail the applicant's evidence to the Tribunal at the hearing and set out in a number of paragraphs not only the applicant's claims but details of the Tribunal's questioning of the applicant about certain aspects of the applicant's claims that the Tribunal found difficult to accept.  The Tribunal in its findings and reasons found that the applicant was a national of China and based that finding on the applicant's passport issued by the People's Republic of China.

  5. Whilst the Tribunal accepted that the treatment of some people involved in the Falun Gong movement in China would involve serious harm and systematic and discriminatory conduct the Tribunal found that that state of affairs in general was not sufficient as such to find that the applicant is a person to whom Australia has protection obligations under the Refugee Convention. The Tribunal did not accept the applicant's claims.  The Tribunal made certain findings relating to the applicant's credibility in saying:

    The Tribunal found the applicant a reluctant witness unable to give meaningful responses to the Tribunal's questions for the reasons set out below the Tribunal is not satisfied that any of the applicant's material claims to invoke protection obligations in Australia are true[4].

    [4] See Court Book at page 74

  6. The Tribunal went on to consider the applicant's claims to have begun practising Falun Gong in 1998 and found that he had a minimal knowledge about Falun Gong and noted that the applicant stated that he had not performed the Falun Gong exercises since his arrival in Australia.  The Tribunal rejected the applicant's claims that he was or ever had been a Falun Gong practitioner and found that he did not hold a genuine belief in, or a commitment to, Falun Gong.

  7. The Tribunal considered the applicant's claims about arrest and detention and found those claims to be "confused, contradictory and lacking relevant details"[5]. The Tribunal considered in some details the applicant's claims but rejected the applicant's account as implausible and noted that in certain key areas the applicant was unable to give the Tribunal meaningful details about an important part of his case.  The Tribunal then went on to consider the applicant's claims of activities in Australia saying:

    The applicant claims that he has attended Falun Gong demonstrations in China Town but was so vague about these events and his role in them that the Tribunal does not accept that the applicant was involved in these events or even attended them[6].

    [5] See Court Book at page 74

    [6] See Court Book at page 75

  8. The Tribunal then went on to consider the question of future harm to the applicant and noted the applicant's claim that he would not practise Falun Gong if he were to return to China.  I note that a word has been left out of paragraph 52 but it is quite clear from the context that the word that has been left out is the word "applicant".  The Tribunal found itself satisfied that the applicant would not practise Falun Gong, not because he feared persecution but because he had no commitment to Falun Gong or belief in it.

  9. The Tribunal went on to find that because it did not believe that the applicant was ever arrested or detained for his Falun Gong activity, it would follow that the applicant's wife would not have to pay bribes to effect the applicant's release, and went on to say:

    If the applicant owes money to friends and relatives it is not for the reason claimed therefore the Tribunal is not satisfied any harm he fears as for a convention related reason.

  10. The Tribunal was not satisfied that the applicant has a well founded fear of persecution for a Convention related reason or any other reason and affirmed the decision not to grant the applicant a Protection (Class XA) Visa.

Application for Judicial Review 

  1. The applicant commenced proceedings for judicial review in this Court by means of an application and an affidavit in support filed on 5 June 2008. He filed an amended application on 12 August 2008 setting out the grounds to which I have referred.

  2. He claimed in his first ground that the Tribunal did not consider that what he had done in Australia to support Falun Gong and the activities in which he had participated in Australia would put him in further danger on his return to China.  He reiterated that claim in a statement that he made to the Court.  The applicant had the statement written down in Chinese and asked the Court for permission for the interpreter to read that statement out.  I gave that permission and the interpreter read out the statement.

  3. In addition to the claim of the Tribunal not considering the applicant's activities in Australia which formed ground one of the application and the claim of a failure to comply with s.424A of the Migration Act the applicant in his statement made a number of other claims. Those claims included:

    a)That the Tribunal did not consider his case according to Immigration Law generally;

    b)That the Tribunal decision was affected by bias;

    c)That the Minister for Immigration & Citizenship rejected his claims based on assumptions;

    d)That the Tribunal did not follow the requirements of s.91R of the Migration Act;

    e)That the Tribunal rejected the application without providing any grounds or reasons and did not give any evidence in support of its rejection;

    f)The Tribunal did not consider that the applicant would suffer persecution on return to China;

    g)That the Tribunal had breached s.424A of the Migration Act;

    h)And, finally, that the applicant, for those reasons, did not receive a fair hearing from the Tribunal.

  4. On being asked from the Bench why he considered that the Tribunal was biased in giving its decision the applicant said that the Tribunal was biased because it did not give him a proper chance to give a response to the Tribunal's reasons for rejecting his application.

  5. Turning to the applicant's first ground, that the Tribunal did not consider the applicant's activities in Australia in support of Falun Gong which would lead him to face persecution on return to China I note that the Tribunal did indeed consider that very issue.  At para. 54 of the decision record the Tribunal said:

    The Tribunal asked the applicant if he had been involved in any Falun Gong activities in Australia and he gave an evasive response before admitting that he only stood in the street while Falun Gong demonstrations occurred but did not otherwise participate[7].

    [7] See Court Book at page 73

  6. In its Findings and Reasons the Tribunal said:

    The applicant claims that he has attended Falun Gong demonstrations in China Town but was so vague about these events and his role in them that the Tribunal does not accept that the applicant was involved in these events or even attended them[8].

    [8] See Court Book at page 75

  7. I am satisfied that the Tribunal did consider the matters that the applicant raised about his activities in Australia in support of Falun Gong and has dealt with that issue. The applicant's second ground is that the Tribunal failed to notify him in writing the reason, or part of the reasons, for affirming the decision and he was not given an opportunity in accordance with s.424A of the Migration Act to consider and comment on, or respond to, particulars of the information that was the reason, or part of the reason, for affirming the decision.

  8. The fact is that the Tribunal was under no obligation under s.424A of the Migration Act to do so because there was no information that formed the reason, or part of the reasons, for decision that would enliven an obligation under subsection 424A(1). The Tribunal rejected the applicant's case on credibility grounds and was therefore not obliged to put its appraisals of his credibility to him because its appraisals of his credibility and its views about his credibility was not information. See SZBYR v Minister for Immigration & Citizenship[9] at [18].

    [9] (2007) 235 ALR 609

  9. The information in any event came from the applicant himself and clearly fell within the exception contained in subsection 424A(3)(b) of the Migration Act. There was a reference at some length to Independent Country Information but that clearly was not specifically about the applicant or another person. It related to Falun Gong practitioners in general and people seeking passports and exiting from the People's Republic of China. This Independent Country Information clearly falls within the exception in subsection 424A(3)(a) of the Act and does not enliven any obligation under s.424A(1) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW[10].

    [10] (2004) 140 FCR 572

  10. The applicant claimed to the Court today that the Tribunal did not consider his case according to Immigration Law. The Tribunal set out its understanding of the relevant law in paras. 6 to 18 of its decision which can be found on pages 62 to 64 of the Court Book. That understanding of the relevant law included the effect of s.65 and s.36 of the Act. It included a detailed exposition of the definition of a refugee and some qualifications of Article 1A(2) of the Refugees Convention by s.91R and s.91S of the Act. In my view the Tribunal in its decision demonstrated an understanding of the essential requirements of the law necessary for the Tribunal to determine whether the applicant was a person to whom Australia has protection obligations under the Refugee Convention.

  11. I turn now to the question of bias. The applicant claims that the Tribunal was biased based on the fact that it did not give him an opportunity to make some submissions in reply, presumably as a result of the applicant's claim of a breach of s.424A of the Migration Act. There is, of course, no breach of s.424A and there is no evidence of bias. It is well established that an allegation of bias or bad faith is a serious matter involving personal fault on the part of the decision maker. It is an allegation that is not to be lightly made and must be clearly alleged and proved.

  12. The circumstances in which the Court will find an administrative decision maker such as a member of the Refugee Review Tribunal has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[11] at [43]-[44] where the Court approved a number of first instance decision including SCAA v Minister for Immigration & Multicultural & Indigenous Affairs[12] at [38]).

    [11] [2002] FCAFC 361

    [12] [2002] FCA 668

  13. The Full Court expressed similar views in SBBF v Minister of Immigration & Multicultural and Indigenous Affairs[13] at [16]. There is no evidence of bias in this case. The claim of bias must be rejected.

    [13] [2002] FCAFC 358

  14. There is no failure by the Tribunal to comply with the requirements of s.91R of the Migration Act. The Tribunal set out its understanding of the definition of a refugee in s.91R in paragraphs 11 to 18 of its decision.

  15. There is no breach of subsection 91R(3). The Tribunal asked the applicant about his activities in Australia and was not satisfied that the applicant had engaged in any. As such the Tribunal has not fallen into error in respect of any breach of s.91R.

  16. Turning to the applicant's claims that the Tribunal rejected his application without giving grounds or a reason, or even providing evidence, the fact is that the Tribunal did give reasons for rejecting the applicant's claims.  The Tribunal rejected the applicant's claims because it did not find those claims credible.

  17. It rejected on the basis of credibility the applicant's claims to have been a Falun Gong practitioner at all.  It rejected his claims to have been arrested and detained and it rejected his claims that his wife had borrowed large sums of money to pay bribes to secure his release.  The Tribunal noted the applicant's evidence that he did not think that he would be involved in Falun Gong activities or practice if he were to return to China either at the time of the hearing or in the future.

  18. It is not up to the Tribunal to find evidence to reject the applicant's claims.  The Tribunal has given the reasons for not accepting the applicant's claims and has not fallen into error in doing so. 

  19. The Tribunal did comply with its obligation under s.425 of the Migration Act. The Tribunal invited the applicant to attend the hearing where he was able to give evidence with the assistance of an interpreter in the Cantonese language which was the language that he requested.

  20. The Delegate had refused the application on the basis that the Delegate was not satisfied as to the credibility of the applicant's claim to be or ever to have been, a Falun Gong practitioner and because of the lack of plausibility of his key claims.  Those were the issues before the Tribunal and those issues were put to he applicant by the Tribunal at the hearing.  The Tribunal put its concerns to the applicant about aspects of his claim. In particular at paragraph 43 of its decision the Tribunal asked the applicant about his knowledge and practice of Falun Gong and noted the applicant's replies.  The Tribunal said:

    Asked if he knew the exercises the applicant claimed that he had not practised since came to Australia and had forgotten them.  The Tribunal put to the applicant that it seemed unusual that he would not take the opportunity to practice Falun Gong in Australia when he could do so in complete freedom.  The applicant claimed that he working from morning to night and did not have the time.  The Tribunal put to the applicant that it found it hard to accept that after almost 10 years of practice he would forget all of the exercises in just six months.  The applicant claimed that he had to work all day[14].

    [14] See Court Book at page 71

  1. The Tribunal put to the applicant its difficulty in accepting that the authorities in China would be interested in him given the fact that his lack of knowledge of Falun Gong was almost total and the Tribunal recorded this response:

    The applicant claimed that he did not know why they were interested in him but the authorities in China were unpredictable.[15]

    [15] ibid

  2. The Tribunal put other questions to the applicant about his claims and in my view made quite clear its difficulty in accepting the plausibility of the fundamental aspects of the claims. There is no breach of s.425, there is no breach of procedural fairness. I am not satisfied that the applicant has shown any jurisdictional error in the Tribunal decision and in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act.

  3. It follows that as a privative clause decision there is no basis upon which the Court can issue the writs of certiorari, mandamus or prohibition which the applicant seeks. Therefore the application will be dismissed with costs.

  4. I am satisfied that this is an appropriate matter for costs and that the amount sought, $5000, is an appropriate figure as it is a figure allowed by the scale. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  1 December 2008


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