SZMNO v Minister for Immigration
[2008] FMCA 1563
•27 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMNO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1563 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was entitled to have regard to the Applicant’s conduct in Australia without making a specific finding as to the purpose of the Applicant’s conduct – whether the Refugee Review Tribunal complied with s.91R(3) of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36; 36(2); 65(1); 65(2); 91R; 91R(3); 91S; 424A; 424A(1); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 474; pt.8 div.2 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 219 ALR 27 |
| Applicant: | SZMNO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1834 of 2008 |
| Judgment of: | Emmett FM |
| Hearing dates: | 6 November 2008 and 18 November 2008 |
| Date of last submission: | 18 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Mr C. Thorpe, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1834 of 2008
| SZMNO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 June 2006 and handed down that same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 2 February 2008 having departed legally on a passport issued in his own name and an ADS Tour Group (class TR-676) visa valid until 22 February 2008 which he breached by absconding from his ADS tour group and remaining onshore.
On 13 February 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 21 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 26 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 12 June 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 16 July 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by Chinese officials for his practice of Falun Gong. The Applicant claimed that he was targeted by police in 2007, was arrested and held in custody. The Applicant claimed he was interrogated for three days and suffered mental and physical persecution.
The Delegate’s decision
On 21 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate found the Applicant’s claims to be vague, in general terms and without essential details such as dates and events. The Delegate also found that the Applicant was not of interest to authorities in China because he was able to legally depart China on a passport in his own name without difficulty.
The Tribunal’s review and decision
On 26 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application other than his travel documentation. On 12 June 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 14 April 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 16 May 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence before the Tribunal in which the Applicant expanded upon his written claims.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by Mr Potts, counsel for the First Respondent, in his written submissions as follows:
“7. The Tribunal accepted that the applicant was from China, and was a truck driver there.[1] Other than that, the Tribunal did not accept any further aspect of the applicant’s claims.[2]
[1] CB at 78 at [52] and [55].
[2] CB at 78 at [56].
8. The Tribunal found that:
i) although the applicant knew there were five main Falun Gong exercises and could name them, he could not demonstrate the exercises, and did not know that the fifth exercise was performed in the seated position;[3]
[3] CB at 78 at [57].
ii)although he knew the three word key ethical formula of Falun Gong (“Truth, Goodness and Forbearance”) he only provided a limited answer as to what this formula had meant to him, in that his health had improved;[4]
iii) he had difficulty answering questions about the Falun and stated he did not know enough about it;[5]
iv) according to independent information from a Dr Penny, a genuine Falun Gong practitioner should be able to perform the five main exercises confidently; know the main scripture of Zhuan Falun; and be able to talk about their experiences with Falun Gong; and given the applicant’s responses, they indicated that he was not a genuine Falun Gong practitioner;[6]
v) the applicant had raised for the first time at the hearing, a claim that he had distributed Falun Gong CDs, however, because this claim was a significant one, the Tribunal would have expected it to be raised at the first opportunity, and because it was not, the Tribunal found that the applicant had manufactured it at the hearing to enhance his claims;[7]
vi) the applicant’s oral evidence about the nature of his practice of Falun Gong in the PRC was inconsistent with his inability to demonstrate the exercises;[8]
vii) the applicant was not a Falun Gong practitioner in the PRC;[9]
viii) the applicant did not practice Falun Gong in Australia;[10]
ix) by obtaining a replacement PRC passport in Australia, the applicant indicated that he did not have any subjective fear of returning to the PRC;[11]
x) as a result of the findings above, the applicant’s evidence was not credible and it did not accept his claims;[12] and
xi) accordingly it was not satisfied that he was a refugee.[13]”
[4] CB at 79 at [58].
[5] CB at 79 at [59].
[6] CB at 79 at [60].
[7] CB at 79 at [61].
[8] CB at 79 at [62].
[9] CB at 79 at [62].
[10] CB at 79 at [63].
[11] CB at 79 at [64].
[12] CB at 79 at [65].
[13] CB at 80 at [68].
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The Applicant confirmed that he relied on the grounds contained in an amended application filed on 9 September 2008. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
The grounds of the amended application are expressed to be as follows:
“1. The Tribunal failed to refer to proper independent information for the consideration of my application for a protection visa. The Tribunal failed to consider my application with sufficient evidence to support the decision of my application.
2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant declined to make any submissions in support of either of his grounds or in support of his application generally.
Ground 1
Ground 1 states that the Tribunal failed to refer to “proper independent information” in considering the Applicant’s review application. The Applicant was unable to tell the Court what was the “proper independent information” he contended was not referred to by the Tribunal because he said his friend wrote the grounds of his application and he was unable to say anything further about them.
A fair reading of the Tribunal’s decision makes clear that the Tribunal did refer to independent country information in making its decision. The independent country information to which a tribunal chooses to refer is a matter for that tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). Neither the Applicant nor a fair reading of the decision record suggests that there was any independent country information given by the Applicant to the Tribunal to which it failed to have regard.
The Tribunal identified with particularity the independent country information to which it had regard. Ultimately, the Tribunal did not accept that the Applicant was a genuine Falun Gong practitioner because he was unable to demonstrate the Falun Gong exercises and his knowledge of Falun Gong generally was not sufficient to satisfy the Tribunal that he was a genuine Falun Gong practitioner.
To the extent that ground 1 also complains that the Tribunal did not have sufficient evidence to support its decision, a fair reading of the Tribunal’s decision does not support such a contention. The Tribunal repeated in full the Applicant’s written claims and summarised the Applicant’s oral evidence given to it at the hearing. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary in its decision record of the oral evidence given by the Applicant and his witness.
The Tribunal noted that at the hearing the Applicant raised for the first time a further claim of having distributed Falun Gong materials in China. The Tribunal explored with the Applicant the reasons why he had not made this claim either in his application for a protection visa or at the start of the hearing before it. The Tribunal found the claim to have been significant and therefore expected it to have been raised at the first opportunity. The Tribunal was not satisfied by the Applicant’s explanations and found that he had “manufactured the claim at the hearing in order to enhance his claims”.
The Tribunal also found the Applicant’s oral evidence to be internally inconsistent and found his evidence not to be credible. The Tribunal comprehensively rejected the Applicant’s claims of past persecution and of practice of Falun Gong in Australia.
The findings made by the Tribunal, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). The Tribunal’s conclusion that it was not satisfied that the Applicant has a well-founded fear of persecution for any Convention-related reason was based on the findings it made, having applied the correct law to those findings.
It is for the Applicant to satisfy the Tribunal that he meets the criteria required for being a refugee. In circumstances where the Applicant failed to satisfy the Tribunal that he meets the criteria required in s.36 of the Act, s.65(2) of the Act mandates that he must be refused a protection visa.
In the circumstances, there was sufficient evidence before the Tribunal to support its decision to affirm the decision under review.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 contends that the Tribunal breached s.424A of the Act. As stated above in these Reasons, this ground was not supported by particulars or written or oral submissions.
A fair reading of the Tribunal’s decision record makes clear that there was no information to which the Tribunal had regard that enlivened the obligations of s.424A(1) of the Act.
The information which formed the reason for the Tribunal affirming the decision under review was the evidence given to it by the Applicant and the independent information about a class of persons of which the Applicant is one. Such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b), s.424A(3)(ba) and s.424A(3)(a) of the Act.
Otherwise, the Tribunal’s evaluation of the material and evidence before it are its thought processes. Such thought processes are not information that enliven the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [18]).
Accordingly, ground 2 is not made out.
Other issues
An issue arose during the course of the hearing before this Court as to whether or not the Tribunal had complied with s.91R(3) of the Act in circumstances where it had regard to conduct by the Applicant in Australia in affirming the decision under review. Whilst the Applicant did not raise a ground in such terms either before this Court or in the amended application, the Applicant did refer to s.91R(3) in his initiating application as follows:
“The Tribunal had bias against me and did not consider my application according to S91R of the Migration Act 1958”.
In particular, the Tribunal accepted that the Applicant approached the Chinese Embassy in Australia for a replacement passport and found that, in doing so, the Applicant indicated that he did not have any subjective fear in returning to China. Relevantly, the Tribunal stated as follows:
“43. The Tribunal indicated that the applicant had obtained a passport from the PRC Embassy in Perth, which may indicate that he was no longer in fear of the PRC and no longer required the protection of Australia. The applicant responded that he definitely needed the protection of Australia.
…
65. The Tribunal finds on the basis of its finding above, that the applicant’s evidence is not credible and that it does not accept this and finds that the applicant in doing so indicated that he did not have any subjective fear in returning to the PRC.”
Section 91R(3) is as follows:
“(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the 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.”
While the Tribunal did accept that the Applicant obtained a replacement Chinese passport in Australia, it did not accept that the Applicant did so for the reasons given by the Applicant of “identification purposes”. The Tribunal found that, in obtaining a replacement Chinese passport in Australia, the Applicant indicated that he did not have any subjective fear in returning to China. Before making that finding, the Tribunal noted that it put that concern to the Applicant and noted that the Applicant responded “that he definitely needed the protection of Australia”. The Applicant’s response does not appear to be responsive to the Tribunal’s concern. As stated above in these Reasons, there is no evidence before this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, it was open to the Tribunal to find that the Applicant’s conduct in approaching the Chinese embassy for a replacement Chinese passport indicated that the Applicant did not have any subjective fear in returning to China.
A fair reading of the Tribunal’s decision record makes clear that the Applicant was not asserting that he approached the Chinese Embassy for a replacement passport for the purposes of strengthening his refugee claim. True it is that the Tribunal did not make a specific finding as to what the Applicant’s purpose was in approaching the Chinese embassy for a replacement passport.
However, what is relevant for the Tribunal to be satisfied about in terms of s.91R3(b) of the Act is that, before it can have regard to such conduct, it must be satisfied that such conduct was entered into other than for the purpose of strengthening the Applicant’s refugee claims. I accept the submission of counsel for the First Respondent that the only inference reasonably open on the face of the Tribunal’s decision record was that the Tribunal was satisfied that the Applicant’s conduct was engaged in for purposes other than strengthening his refugee claims.
Otherwise, the Tribunal did make specific findings about the Applicant’s evidence of conduct in Australia in accordance with the principles enunciated by the Full Court of the Federal Court of Australia in SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451 at [22].
Accordingly, the Tribunal was entitled to have regard to such conduct in its review and no breach of s.91R(3) was committed by the Tribunal.
Further, a fair reading of the Tribunal’s decision record makes clear that the Applicant did not make a claim to the Tribunal that his conduct in obtaining a replacement Chinese passport caused him to fear persecution if he were to return to China. Such a claim was not squarely raised by the Applicant and did not clearly arise on the evidence and material before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 219 ALR 27 at [60]).
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal: understood the claims being made by the Applicant; explored those claims with the Applicant; identified independent country information to which it had regard; and, explored with the Applicant concerns it had about his evidence and noted his responses. The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 27 November 2008
2
3
2