SZMOF v Minister for Immigration
[2009] FMCA 348
•8 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMOF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 348 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether no evidence or breach of s.425. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 |
| Applicant: | SZMOF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1913 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 8 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2009 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1913 of 2008
| SZMOF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal signed on 3 June 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 2007 and applied for a protection visa. In a statement accompanying her protection visa application she claimed to fear persecution in China as a Falun Gong practitioner. She claimed that she had been gaoled between December 2004 and October 2005 for attending a demonstration against the government. She also claimed that while in gaol she was beaten and mistreated because she refused to denounce Falun Gong, and placed in solitary confinement and further mistreated when she practised Falun Gong. She claimed that after she was forced to pledge that she would not practise again she was released.
The applicant claimed to fear that she would be put in gaol again if she insisted practising Falun Gong and that there was no point giving up Falun Gong because she knew there was nothing wrong with it. She claimed her father suggested that she sell her house to raise money to bribe a government official to issue a passport and to help her to apply for a visitor visa to come to Australia.
A delegate of the first respondent refused the application for a protection visa. The applicant sought review by application lodged with the Tribunal on 10 January 2008. She attended a Tribunal hearing with the assistance of a Mandarin interpreter. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) inviting her to comment on information the Tribunal considered would, subject to any comments she may make, be the reason or part of the reason for affirming the decision under review. That letter put certain inconsistencies to the applicant (to which I will return), which the Tribunal indicated may lead it to find that she was not generally credible and was not telling the truth about being persecuted in her country. The applicant responded to the s.424A letter by letter received by the Tribunal on 1 April 2008.
In its reasons for decision the Tribunal outlined the claims made by the applicant in connection with her protection visa application and what occurred at the Tribunal hearing, in particular her claims that she had difficulties getting a passport as she had been sent to gaol, that she had to find the right person to bribe and that she had considered leaving China from 2005 but that it was impossible because she was in gaol. She is recorded as having told the Tribunal that she lived in the same rented accommodation from 1997 after she sold her house and that prior to coming to Australia she worked in a shop from 1976 but because of her Falun Gong she was “kicked out” by her employer from 2004.
The Tribunal recorded that at the hearing the applicant claimed that she retired officially in 2007 having supported herself financially after 2004 through her husband. The Tribunal discussed the preparation of the application for a protection visa and in which applicant claimed that she worked until 2006. She claimed that she did not want the person who prepared the application to know that she was “kicked out” of her job.
The Tribunal also recorded questioning of the applicant in relation to her practice of Falun Gong. When it asked her when she commenced her practice of Falun Gong the applicant stated that she was still working at the beginning and did not practise a lot because she was too busy. When asked again, she stated that she was aware of Falun Gong from 1999 but was too busy to practise. She then claimed that in 2000 she practised a little but did not practise continuously as she was too busy. She then said from 2000 to 2004 she generally practised each day in the morning with others, unless she was too busy.
The Tribunal recorded that it then asked the applicant what she did to practise Falun Gong and that she named the first four Falun Gong exercises. However she could not remember the name of the last exercise. She showed the Tribunal some of the exercises but could not draw the complete Falun Gong symbol when asked about it by the Tribunal, although she drew part of it. The applicant also claimed that she practised in Australia by herself. When asked how she managed to practise Falun Gong in China for the time she did until she came to Australia she told the Tribunal that she had to be careful not to be discovered and that she practiced by herself.
The Tribunal asked the applicant about where she lived, whether the authorities checked on her after her release in 2005, how she left China with a passport in her own name and whether she had any trouble exiting her country. The applicant claimed that the local community checked on her from time to time, that she had to report, that she paid a bribe and left China from a place other than Beijing.
The Tribunal also asked the applicant about her application for a visitor visa. She claimed that she had told the officials at the Australian embassy that she was retired with a pension and had worked from 1975 until July 2006, because if she had said she had no income she would not have given the visa.
The Tribunal recorded that it put to the applicant that she also claimed she worked until July 2006 in her protection visa application and asked her why she also put incorrect information in the protection visa application. The applicant claimed that she in fact retired in 2007.
The Tribunal recorded that it put to the applicant that the inconsistencies between what she put in her applications for the protection visa and the visitor visa on the one hand, and what she told the Tribunal on the other hand, may cause it to draw an adverse inference about her credibility. The Tribunal asked the applicant if she wanted more time to give it any further information about her case, given the importance of the inconsistencies in the information she had provided. It invited her to provide further comments or material in support of her case or to explain the inconsistencies.
The Tribunal subsequently wrote to the applicant under s.424A of the Act putting to her the inconsistencies between the contents of her application for a visitor visa and protection visa application and her evidence at the hearing. On 1 April 2008 she claimed in a reply to the Tribunal that her legal retirement age was supposed to be July 2006 and that after her release from detention she was unemployed, but that she decided to pay the labour insurance fee in the name of her employer so that she could get superannuation on reaching retirement age. She also explained that the amount shown as a pension on the bank records she had shown to get the visitor visa was not correct, as she had wanted to show she had enough money to support herself overseas.
The Tribunal summarised the applicant’s claims based on her Falun Gong practice and activities, including that she was in a protest demonstration against the government and wanted to spread Falun Gong, that she was detained and mistreated by the authorities, dismissed from her job and not paid by her employer after she was detained and that she had been checked on by local authorities after her release from detention. She claimed to fear further persecution and implicitly that she could not get protection because of her Falun Gong practice if she returned to China.
While the Tribunal acknowledged that independent country information supported in a general way the applicant’s claims about the persecution of Falun Gong practitioners by the authorities of the People’s Republic of China, it did not accept that the applicant was a genuine Falun Gong practitioner who had practiced Falun Gong in China or Australia or that she took part in Falun Gong activities as claimed. It therefore rejected her claims of past detention and mistreatment and her claims that she would be harmed or detained or had a well-founded fear of persecution should she return to China.
The Tribunal found against the applicant in relation to these matters because it did not accept that she was a witness of truth. It had regard to the fact that whilst she knew about Falun Gong exercises she had doubts about the fifth or last main exercise and could only draw part of the Falun Gong symbol. It was the Tribunal’s view that if the applicant had practiced Falun Gong for the period claimed, that is since 2000, she would have responded to the Tribunal’s questions about these matters without hesitation.
The Tribunal also had regard to the inconsistencies about the time the applicant’s employment ceased and the explanation she gave for putting false information in her visitor visa application. However it found that this did not explain why she also said she was working until July 2006 in her application for a protection visa. It had regard to her explanation, but also to the fact that at the hearing she told the Tribunal she retired in 2007. The Tribunal found the inconsistencies in the applicant’s oral evidence and between her oral evidence and what was contained in her protection visa application about her period of work caused it to conclude that she was not a witness of truth.
The Tribunal did not accept as true that the applicant was gaoled in China at any time and/or that she did not work in China after December 2004 for the reasons claimed. The Tribunal also found that it was not consistent with the applicant’s claim that she was of interest to authorities and that local authorities were checking on her before she left China, that she remained in China at her usual address with her family and left China on a passport in her own name issued in February 2007 as she had told the Tribunal at the hearing. The Tribunal did not regard as true that the applicant was or is of interest to authorities in China for the reasons claimed, that she had to pay a bribe to leave the country, or that the reason she left China from a more remote location was to facilitate her exit for the reasons claimed.
The Tribunal concluded that there was no plausible evidence before it that enabled it to conclude that the applicant was a genuine Falun Gong practitioner and would suffer persecution from the authorities, or anyone else in China, now or in the reasonably foreseeable future for any Convention reason. It affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 24 July 2008. She did not file a transcript of the Tribunal hearing or written submissions although she made oral submissions today to which I will return.
Dealing first with the grounds in the application, the first ground asserts that there was no evidence or other materials to justify the making of the decision. However in this case the Tribunal’s decision was based on its appraisal of the applicant’s claims having regard to the visitor visa application, the protection visa application and her oral evidence to the Tribunal. For the reasons it gave it found that the applicant was lacking credibility. It has not been established that the Tribunal’s assessment of this evidence was not open to it for the reasons it gave. In particular, it has not been established that the Tribunal made a finding that was critical step in its ultimate conclusion for which there was no evidence in support in the manner considered in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 or that there was no evidence in relation to a jurisdictional fact or essential preliminary in the decision-making process (see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302). Also see more generally the discussion by Greenwood J in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 in relation to the limits of the no evidence ground. As his Honour concluded at [32]:
A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
However the generally expressed contention in ground one of the application for review does not establish that this is such a case or that the Tribunal findings on credibility should on that basis be disturbed (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]).
The second ground asserts that the decision involved an important exercise of the power conferred by the Migration Act and Regulations and does not identify any possible jurisdictional error.
The third ground asserts that the named Tribunal member should not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter. On its face this ground does not identify jurisdictional error. Insofar as it is intended to assert that the Tribunal should have provided the applicant with a further hearing, no basis for such a claim is made out on the material before the Court, having regard to the extent and nature of the Tribunal’s obligation under s.425, in light of the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
Insofar as this ground may be seen as intending to assert actual or apprehended bias (notwithstanding that there was no clear allegation in that respect) neither actual or apparent bias is made out on the material before the Court in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. As was stated in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17]:
It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal.
Nor is the Tribunal account of what occurred in the Tribunal hearing such as to provide support for any such contention. I note in that respect that at the conclusion of the hearing the Tribunal brought inconsistencies to the attention of the applicant and explained their relevance and also asked the applicant if she wanted more time to give it any further information about her case given the importance of the inconsistencies in the information she had provided. It invited her to provide further comments or materials in support of her case or to explain the inconsistencies. This ground is not made out.
Grounds four and five in the application assert that the applicant fears persecution by reason of being a Falun Gong practitioner and repeat her claim that she was arrested and sent to gaol because she was a genuine Falun Gong practitioner. As I endeavoured to explain to the applicant, merits review is not available in this Court and these grounds do not identify any jurisdictional error on the part of the Tribunal.
In oral submissions the applicant took issue with the merits of the Tribunal decision, reiterating the truth of her claims and claiming that she could not return to China. She also contended that it was not fair for the Tribunal to judge her devoutness according to the accuracy of her diagram of the Falun Gong. However, as set out above, the Tribunal gave a number of reasons for its credibility findings, including its finding that the applicant’s knowledge in response to its questioning about Falun Gong exercises was not consistent with her claim that she had practiced Falun Gong for the period she claimed. Such findings were open to the Tribunal and do not establish jurisdiction error.
The applicant also took issue with the conduct of the Tribunal hearing, claiming that the Tribunal did not ask a lot of things that she wanted to tell, did not go through a lot of facts, and did not seriously act to ensure that she was able to say everything. There is no evidentiary basis in the material before the Court for any contention that the Tribunal failed in this way to comply with its obligations under s.425, in particular to raise dispositive issues or that it failed to give the applicant the opportunity she sought to provide information about her case and to make further claims. In that respect I note again, that at the conclusion of the hearing the Tribunal invited the applicant to provide further comments or materials in support of her case.
The Tribunal is not under a duty to elicit from an applicant further particulars, and there is nothing in the material before the Court from which it can be inferred that the applicant was not given the requisite opportunity to tell more of her story. Indeed the reverse appears to be the case from the Tribunal’s account of the hearing.
Finally the applicant claimed in relation to the Tribunal hearing that she did not know English. The material before the Court indicates that she had the assistance of a Mandarin interpreter. She also claimed she was scared at the hearing and only answered what was asked. While recognising that an applicant may find the context of a Tribunal hearing not such as to put her entirely at ease, the Tribunal’s account of what occurred in the hearing is not consistent with her claim that she did not have the opportunity to address and elaborate on her claims either at the hearing or thereafter. Insofar as the applicant suggested that she may have difficulties responding to the Tribunal as she did not have contact with the person who prepared her protection visa application, she did in fact respond to the Tribunal’s s.424A letter.
Jurisdictional error has not been established on any of the bases contended for by the applicant in her application and in oral submissions. As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the circumstances of the case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The applicant’s lack of satisfaction with the result of these proceedings is not a reason to depart from the normal principle. I consider that the amount of $3,500 is appropriate in light of the nature of this and other similar matters and having regard to the provisions of the Federal Magistrate’s Court Rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 23 April 2009
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