SZMKL v Minister for Immigration
[2008] FMCA 1463
•28 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1463 |
| 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 – breach of one child policy – whether Tribunal failed to provide procedural fairness – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.91R(3) – relief withheld on discretionary grounds. |
| Migration Act 1958 (Cth) ss.91R, 422B, 424A, 424AA, 425, 474 |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 SZIYG v Minister for immigration and Citizenship [2008] FCA 1143 SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 |
| Applicant: | SZMKL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1550 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 September 2008 |
| Date of Last Submission: | 30 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms Baggett |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5000.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1550 of 2008
| SZMKL |
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 22nd May 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant asks the Court to make orders in the nature of certiorari and mandamus, specifically, she asks the Court to set aside the Refugee Review Tribunal’s decision and require the Tribunal to review her case again. She relies on the following grounds:
(1) “Jurisdictional error has been made” ; and
(2) “Procedural fairness has been denied. RRT did not take my evidence important.[1] I did not receive any letter from RRT to explain the doubts on which they refused me.”
[1] sic
Background
The Applicant arrived in Australia on 31st August 2007 and applied for a Protection (Class XA) visa on 12th October. In her application she claimed that she feared persecution from the Chinese government for a breach of China’s one child policy and also because she is a Falun Gong practitioner.[2]
[2] Court Book pages 18 and 19
A delegate of the Minister for Immigration and Citizenship refused the Applicant’s application for a protection visa on 4th January 2008. The delegate gave the following reasons:
I have considered the applicant’s claims and am not satisfied the applicant faces a real chance of persecution. The applicant’s claims are vague and lack any meaningful detail such that it is impossible to determine whether the applicant has encountered any mistreatment in the past, or undertaken any activity which might attract the adverse attention of the Chinese authorities should she now return to that country.
The applicant claims she has breached the One Child Policy, and indicates she is the parent of three children. Nevertheless, this Policy is a law of general application in China, and so falls outside the ambit of the Refugees Convention. The applicant has not claimed to have suffered any sanctions for breaching this policy. I therefore give no weight to this claim.
I have considered the applicant’s other claim of having practiced Falun gong in private. The applicant has provided no details of her practice of Falun Gong, nor has she claimed to have experienced any difficulties for this reason. I consider it is open for the applicant to return to China and continue her private practice of Falun Gong without facing a real chance of persecution, as she has done in the past. I am not therefore satisfied the applicant will experience harm or mistreatment for this reason on return to China.[3]
[3] Court Book 43
The Applicant applied to the Refugee Review Tribunal on 11th February 2008 for review of that decision. She nominated her migration agent, Weiming Qian of Eternity International (Aust) Pty Ltd as her adviser for the purpose of the review and authorised recipient for correspondence.
Application for Review by the Refugee Review Tribunal
The Tribunal wrote to the Applicant on 25th February 2008, and again on 26th February, inviting her to attend a hearing on 3rd April. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in Mandarin. On 19th May 2008 the Applicant’s migration agent forwarded three photographs to the Tribunal and requested that they should be considered as part of the application for review.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 19th May 2008 and handed the decision down on 22nd May. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal Decision Record can be found in the Court Book at pages 85 to 101.
In its decision the Tribunal considered the Applicant’s claims from her protection visa application and set out a summary of the Applicant’s evidence to the Tribunal at the hearing on 3rd April 2008.[4] The Tribunal considered independent information about the philosophy and practice of Falun Gong, the treatment of Falun Gong practitioners in China since 1999, and the Chinese Government’s One Child Policy.
[4] Court Book 88 - 92
The Tribunal’s Findings and Reasons
The Tribunal expressed itself to be satisfied that the Applicant was a national of the People’s Republic of China and assessed her claims against that country.
The Tribunal noted that the Applicant claimed to have left China because the Chinese Government would persecute her for a breach of the One Child Policy and she practices Falun Gong in private.
The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner. This was due to the fact that the Applicant was able to demonstrate little knowledge of Falun Gong, although she was able to perform some of the five Falun Gong exercises. The Tribunal also found that the Applicant did not have any understanding of the philosophy of Falun Gong. In addition, the Tribunal found the Applicant’s evidence about her practice of Falun Gong “vague and lacking in credibility”.[5]
[5] Court Book 97
The Tribunal went on to note that the Applicant claimed not to have suffered any consequences as a result of her practice of Falun Gong but:
…she is now frightened that her practice of Falun Gong in Australia will become known to the authorities in China. The applicant claims that the authorities in China will learn of her being a Falun Gong practitioner because people from her home town practice at Parramatta Town Hall.[6]
[6] Ibid
The Tribunal noted the photographs that the Applicant provided after the hearing and the Applicant’s evidence that she had only started to attend Falun Gong at Parramatta a few weeks before the hearing, although she had arrived in Australia at the end of August 2007. The Tribunal stated:
However, the Tribunal is of the view that the applicant only began attending the Falun Gong practice at Parramatta Town Hall after she was invited to appear before the Tribunal, in order to strengthen her claims to be a refugee. The Tribunal put to the applicant that it has serious concerns that she only attended Falun Gong practice in Parramatta Town Hall in order to strengthen her claim to be a refugee. The applicant denied that this was true but was unable to provide a credible explanation as to why she only began attending the Parramatta Town Hall 2 weeks prior to appearing before the Tribunal.[7]
[7] Court Book 97
The Tribunal also noted that the photographs that the Applicant provided after the hearing showing herself practising Falun Gong at Parramatta were dated 29th January 2008, 2 months prior to the date of the hearing. The date was inconsistent with the date the Applicant claimed to have started Falun Gong practice at Parramatta.
The Tribunal then referred to s.91R(3) of the Migration Act and found:
The Tribunal is satisfied that the applicant only attended the Falun Gong practice at Parramatta Town Hall in order to strengthen her claim to be a refugee and the Tribunal has therefore disregarded this conduct.[8]
[8] Court Book 98
What the Tribunal then did was to consider the Applicant’s claim that her attendance at Parramatta Town Hall would become known to the authorities in China or that she would be perceived by the authorities as a Falun Gong practitioner, because there were fellow practitioners from her home town at the Parramatta Town Hall. The Tribunal found:
However, the applicant provided no detail or elaboration as to why she has such a concern and the Tribunal finds her claim that fellow practitioners from her home town might somehow notify the Chinese authorities of the applicant’s Falun Gong practice to be far fetched and fanciful.[9]
[9] Ibid
Having found itself not satisfied that the Applicant was a Falun Gong practitioner, the Tribunal then considered the Applicant’s claim to fear persecution as a result of the breach of China’s One Child Policy. The Applicant had given evidence that after she and her husband had their third child they had to pay a fine. When they did not pay the fine her husband was detained but after the Applicant borrowed the money to pay the fine he was released.
The Tribunal considered the Independent Country Information that showed that it was common for fines to be issued to couples who were in breach of the One Child Policy and found that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Refugees Convention. The Tribunal found:
The Tribunal is of the view that the law regulating China’s one child policy is a law of general application. The Tribunal is satisfied that the intent of the law is not discriminatory and is to achieve a legitimate object in China, being population control. The Tribunal is satisfied that the law does not discriminate against any group and is not enforced selectively or in a discriminatory way. The Tribunal does not accept that the fine was corruptly issued and is satisfied that the applicant has paid the fine many years ago and has not been subjected to any further penalty or harm.[10]
[10] Court Book 99
The Tribunal was satisfied that the Applicant would not face any punishment or harm on her return to China for breach of the One Child Policy.
The Tribunal then considered the Applicant’s claim that she was in severe financial hardship, that she was distressed because of this and had threatened suicide. The Tribunal did not accept that there was any nexus between the Applicant’s poor financial situation, her distress and her threats of suicide on the one hand and any Convention reason on the other.
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 therefore not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit on 17th June 2008. She has not filed an amended application or a written outline of submissions.
The Applicant attended Court and made oral submissions. In answer to a question from the Bench as to why the Applicant claimed to have been denied procedural fairness, the Applicant said that she did not receive a letter. She was referring to the letter from the Department of Immigration and Citizenship dated 4th January 2008 notifying her of the refusal of her application for a visa. This letter was returned unclaimed to the Department on 14th February 2008.[11] However, the Applicant was able to apply to the Refugee Review Tribunal on 11th February so she was not disadvantaged.
[11] Court Book 45
The Applicant told the Court that she could not return to China because of her practice of Falun Gong. She complained that the Tribunal did not give her an opportunity when some other people had to her knowledge been successful in their applications for refugee status.
The solicitor for the Minister, Ms Baggett, submitted that the Tribunal had offered to give the Applicant more time to respond to the concerns that it had expressed about her claim.[12] The Tribunal had complied with the requirements of s.424AA of the Migration Act.
[12] Court Book 91
As to the Applicant’s first ground, the assertion that jurisdictional error had been made, Ms Baggett submitted that the Applicant had provided no particulars of this ground so it was so vague as to be incapable of meaningful response.
As to the Applicant’s second ground, the assertion of a denial of procedural fairness and a failure by the Tribunal to write to the Applicant, presumably under the provisions of s.424A of the Act, Ms Baggett submitted that there was no evidence of any failure by the Tribunal to consider any of the Applicant’s evidence and the Tribunal Decision Record does not indicate that any item of evidence had been overlooked. In any event, the ground of failure to take into account a relevant consideration can only be made out where the Refugee Review Tribunal fails to take into account a consideration which it is bound under the Act to consider (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd[13]).
[13] (1986) 162 CLR 24
As to whether the Tribunal failed to write to the Applicant inviting her to comment on its reasons for affirming the decision, Ms Baggett submitted that there was no obligation under s.424A to do so (SZBYR v Minister for Immigration and Citizenship[14] at [18]). Again, it was submitted, s.425 of the Act does not require the Tribunal to deliver a running commentary upon what it thinks about the evidence that is given (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[15]at [48]).
[14] (2007) 235 ALR 609; [2007] HCA 26
[15] (2006) 228 CLR 152; [2006] HCA 63
Ms Baggett further submitted that the delegate’s decision put the entirety of the Applicant’s account in issue. However, the Tribunal’s Decision Record suggests that the issues that were determinative of the Applicant’s application were raised at the hearing and the Applicant had an opportunity to respond to those issues (see SZBEL at [33]-[43]).
At the hearing, the question arose about the way the Tribunal dealt with the evidence of conduct in Australia which the Tribunal disregarded under s.91R(3) of the Migration Act. The Tribunal dealt with this matter at paragraphs [62] and [63] of its decision[16]. Both parties were given the opportunity to present further submissions on this point, but only the Minister did so.
[16] Court Book 98
The Minister submitted the Tribunal concluded that the Applicant was not at any time a Falun Gong practitioner and she only attended Falun Gong practice at Parramatta in order to strengthen her claim to be a refugee. This consideration related not to the Applicant’s disregarded conduct but to whether the Chinese authorities would perceive the Applicant to be a Falun Gong practitioner upon her return to China. The Minister submitted that this case can be distinguished from the situation in SZJGV v Minister for Immigration and Citizenship[17], especially in relation to Applicant SZJXO at [28], where the Tribunal had concluded that the Applicant’s contacts with Falun Gong in Australia formed a reason for finding that the applicant would not have any significant involvement with the movement if he returned to China (see SZIYG v Minister for Immigration and Citizenship[18]at [22]).
[17] [2008] FCAFC 105
[18] [2008] FCA 1143
The Minister submits that even if a breach of s.91R(3) were established the Court should exercise its discretion to refuse relief (see SZLWI v Minister for immigration and Citizenship[19] at [44] and [45]). It would be appropriate to decline relief on discretionary grounds because no injustice has occurred (SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs[20] at [50]-[53]; M v Minister for Immigration and Multicultural Affairs[21] at [38]; SZKGF v Minister for Immigration and Citizenship[22] at [13]-[16]).
[19] [2008] FCA 1330
[20] [2006] FCA 449
[21] (2006) 155 FCR 333
[22] [2008] FCAFC 84
Conclusions
The Applicant relies on two grounds of review. Ground 1 claims that jurisdictional error has been made and provides no particulars. Clearly, without more, this ground cannot succeed.
Ground 2 claims that procedural fairness was denied, the RRT did take the Applicant’s evidence “important” and the RRT did not send the Applicant a letter seeking comment on adverse information. Section 422B of the Migration Act applies. Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.
There is no breach of s.424A of the Migration Act. The Tribunal decided the review on the Applicant’s evidence and a consideration of Independent Country Information. In any event, the Tribunal put matters to the Applicant during the hearing and offered her the opportunity of an adjournment in order to respond to those matters:
The Tribunal asked the applicant if she wants more time to respond to the concerns that the Tribunal has expressed. The applicant said that all she wants to say is that if the visa is granted it will save her life. She has worked since she was very young that she has never had any money and her parents are still working despite their age. The Tribunal again asked the applicant if she wanted an adjournment so that she had some time to think about whether she wanted to make any further response to the Tribunal’s concerns. The applicant stated that she did not want an adjournment.[23]
[23] Court Book 91
In my view, the Tribunal was clearly using the procedure set out in section 424AA of the Act, even though there was no need to do so. There is no breach of s.424A.
What needs to be considered is whether the Tribunal fell into jurisdictional error by a breach of s.91R (3) of the Act. The Tribunal dealt with this issue at paragraphs [62] and [63] of its decision, stating:
[62]Section 91R (3) provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. The Tribunal discussed with the applicant at hearing its concerns that the applicant only attended Falun Gong practice at Parramatta Town hall in order to strengthen her claim to be a refugee. The lack of knowledge that the applicant displayed at hearing regarding Falun Gong leads the Tribunal to not be satisfied that the applicant is, or has been, a Falun Gong practitioner. The Tribunal is satisfied that the applicant only attended the Falun Gong practice at Parramatta Town Hall in order to strengthen her claim to be a refugee and the Tribunal has therefore disregarded this conduct.[24]
[24] Court Book 98
At this stage, the Tribunal has clearly complied with s.91R(3). As the Full Court of the Federal Court has made clear, s.91R(3) can only sensibly be applied once primary findings of fact have been made SZJGV at [22]).
However, the Tribunal went on to state:
[63]The Tribunal is also not satisfied that the applicant’s attendance at Parramatta Town Hall would become known to the authorities in China or that she would be perceived by the authorities as a Falun Gong practitioner. The applicant expressed concern the Chinese authorities would become aware that the applicant had practised Falun Gong because there are fellow practitioners from her home town at the Parramatta Town Hall practice. However, the applicant provided no detail or elaboration as to why she has such a concern and the Tribunal finds the claim that fellow practitioners from her home town might somehow notify the Chinese authorities of the applicant’s Falun Gong claim to be far fetched and fanciful.[25]
[25] Court Book 98
This is a situation to which the Full Court adverted in SZJGV at [22]:
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.
How, then, does this apply in the present case. The Applicant claimed that:
a)She is a Falun Gong practitioner;
b)She attended Falun Gong practice at Parramatta Town Hall; and
c)As a result, she will be persecuted by the authorities if she returns to China.
The Tribunal found:
a)The Applicant is not a Falun Gong practitioner;
b)The Applicant attended Falun Gong practice at Parramatta Town Hall;
c)The Applicant only did so to strengthen her claim to be a refugee; and
d)The Applicant’s claim that she would be perceived by the Chinese authorities as a Falun Gong practitioner as a result of attending Falun Gong practice at Parramatta Town Hall was “far fetched and fanciful”.
The Tribunal found that the Applicant was not a Falun Gong practitioner because the Applicant displayed little knowledge of Falun Gong. That finding was open to the Tribunal on the evidence. It is a finding unconnected with the claim of having attended Falun Gong practice at Parramatta Town Hall. There is no jurisdictional error in that finding.
The Tribunal found that the Applicant did attend the Falun Gong practice at Parramatta, as she claimed. This was a primary finding of fact; the Tribunal was obliged to decide whether that conduct had occurred.
Having made that finding of fact, the Tribunal was then obliged to consider the requirements of s.91R(3). It did so. It found that the Applicant had only engaged in that conduct for the purpose of strengthening her claim to be a refugee. In other words, the Tribunal was not satisfied that the Applicant “engaged in that conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol”(s.91R(3)(b)).
Having made that finding, the Tribunal was required to disregard that conduct. The Tribunal stated that it “has therefore disregarded this conduct” at paragraph [62] of its decision.[26]
[26] Court Book 98
How, then, was the Tribunal to deal with the Applicant’s claim that because of this conduct she would be perceived by the authorities in China as a Falun Gong practitioner? The Tribunal had to deal with that claim. It was a claim made by the Applicant at the hearing:
The Tribunal asked the applicant why she believed she would be persecuted if she returned to China if she never had any problems there in the past. The applicant stated that she has heard that if she practised she would be caught and put into detention. The Tribunal put to the applicant that this had not happened to her before so why would it happen now. The applicant stated that now people in Australia know she practices Falun Gong and word would get back to her home town. People from her home town practise Falun Gong at Parramatta and they would spread the word to her hometown.[27]
[27] Court Book 90, paragraph [37]
What the Tribunal did was then to apply the “common sense:” approach by considering this claim and dismissing it as “far fetched and fanciful”. In doing so, the Tribunal has committed a technical breach of s.91R(3), because it did consider the conduct which it had just said it had disregarded. It was a contradictory finding.
The Tribunal found that the conduct had occurred. It then disregarded that conduct. It proceeded to find that the Applicant’s claim she would be perceived as a Falun Gong practitioner because of the conduct that the Tribunal had just disregarded was far fetched and fanciful.
In order to comply strictly with s.91R(3) the Tribunal needed to disregard the evidence of the conduct and then proceed to consider the Applicant’s claim without having regard to the very conduct that the Applicant said would expose her to a risk of persecution. The artificiality of this approach, leading to a “no evidence” finding, is in my view the logical result of applying s.91R(3).
With respect, the Full Court’s decision in SZJGV has exposed a defect in s.91R(3) that the legislature appears not to have considered. It may well be the case that s.91R(3) needs to be amended.
In the present case, however, the Tribunal found that the Applicant was not a Falun Gong practitioner and would not suffer persecution for that reason of for her claimed breach of the One Child Policy. Those were the Applicant’s primary claims and the Tribunal decided those claims by a process free from jurisdictional error.
The Applicant’s claim of a fear of persecution arising out of a perception that was a Falun Gong practitioner caused by her engaging in Falun Gong practice at Parramatta Town Hall, which the Tribunal was not satisfied was engaged in for any reason other then to strengthen her claim to be a refugee, was a secondary claim that arose at the hearing and was not part of the Applicant’s original claim for a protection visa.
The fact that the Tribunal dealt with the claim in a “common sense” way rather than a strictly technically correct way has not led to any injustice to the Applicant. In my view, the Court should find that there was a breach of s.91R(3) but exercise the Court’s discretion to withhold relief on the basis that no injustice has occurred.
The application will be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V .Lee
Date: 22 October 2008
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