SZMRZ v Minister for Immigration
[2008] FMCA 1636
•5 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMRZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1636 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A(1) of the Act – whether the Refugee Review Tribunal complied with s.91R(3) of the Act – whether the Refugee Review Tribunal considered the Applicant’s claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A(1); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 474; pt.8 div.2 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 AOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 |
| Applicant: | SZMRZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2261 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 December 2008 |
| Date of last submission: | 5 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2008 |
REPRESENTATION
| The Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms Z. McDonald, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2261 of 2008
| SZMRZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX-TEMPORE
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 7 July 2008 and handed down on 29 July 2008.
The applicant claims to be a citizen of the People’s Republic of China and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 25 November 2007 having departed legally from Qingdao on a passport issued in her own name and a subclass 676 visa issued on 23 October 2007.
On 17 December 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 5 March 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 8 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 7 July 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 1 September 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 her protection visa application in which she stated that she feared persecution by the Chinese government by reason of her continued practice of Falun Gong.
The Applicant claimed to have commenced Falun Gong practice in 1998. She stated that after 20 July 1999, when Falun Gong was outlawed in China, she participated in peaceful protests in Beijing on two occasions and distributed Falun Gong materials. She stated she was “illegally imprisoned many times” and spent 6 months in detention, in May 2003 where she was “forced to accept re-education training.”
She said she would be “prosecuted” if she stayed in China, so she bribed a government official in the Zibo city government to obtain a passport.
Ultimately, the Applicant resiled from all these claims at the Tribunal hearing.
The Delegate’s decision
On 18 January 2008, the Delegate wrote to the Applicant inviting her to attend an interview on 31 January 2008 and inviting her to submit any further material in support of her claims before that date. The Delegate noted in her decision record that the Applicant did not attend the interview or attempt to re-schedule the interview.
On 5 February 2005, 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 Tribunal’s review and decision
On 8 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided some further materials in support of the review application, including photographs and her travel documents.
On 22 April 2008, the Tribunal wrote to the Applicant informing her 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 18 June 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence in which she resiled from her written claims and confined her claim of fear of persecution by reason only of being a Falun Gong practitioner in China since 2005.
The Tribunal noted that it discussed with the Applicant: her claims; her travel to Australia; the filing of her protection visa application; her residential history; her family; her plans before travelling to Australia; her practice of Falun Gong in China and Australia; her knowledge of Falun Gong; her father-in-law’s illness; the questioning of her parents by the police; her movements after she claimed she had been “dobbed in”; her husband’s absence at the Tribunal hearing; and, information that might be a reason for refusing her application.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by, Mr Smith, counsel for the First Respondent in his written submissions as follows:
“The Tribunal proceeded on the basis that the applicant had withdrawn the written claims made in support of her protection visa application and relied upon the evidence that she gave to it at the hearing in June 2008, that is, that she had been a practitioner since late 2005 and that a fellow practitioner detained by Police may have informed on her as a result of which the Police wish to question her. The Tribunal did not believe that she had taken up practice of Falun Gong in China or that she was suspected by the PSB of having done so. This was for 5 reasons: first, the serious ill treatment meted out to practitioners by the authorities suggested that it was unlikely that someone would commence practice and thus be subject to such ill treatment merely at the suggestion of a friend; secondly, it did not accept that she had studied Falun Gong material in China because she gave inconsistent evidence about that matter; thirdly, given the centrality of the book, Zhuan Falun to the practice of Falun Gong, the fact that the applicant had not heard of that book for over 2 years while practising in China led the Tribunal to doubt her claims; fourthly¸ she gave inconsistent evidence about where she had been living in China prior to her departure for Australia; and fifthly, she had given no corroborative evidence about her practice in China.
In respect of the applicant’s involvement in Falun Gong in Australia, the Tribunal found that it was not satisfied that she had engaged in those activities otherwise than for the purpose of strengthening her claim to be a refugee and therefore disregarded it.
For those reasons, the Tribunal concluded that the applicant had no well founded fear of persecution for a Convention reason and so affirmed the decision of the delegate.”
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 she had not filed an amended application or any evidence or submissions in support of her application, despite having been directed by this Court to do so.
The grounds of the application are expressed to be as follows:
“1. The Tribunal had bias against me and did not consider my application according to S91R of the Migration Act 1958.
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.
3. The Tribunal failed to consider the claims of my application. The decision was not supported by sufficient materials.”
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 her application generally. The Applicant informed the Court that a friend had written the grounds of her application and she was unable to make any meaningful submissions in support of her application.
She told the Court that she had recently practiced Falun Gong in Canberra, however, agreed that such practice had occurred after the Tribunal gave its decision. The Court explained to her that it could not be a legal mistake on the part of the Tribunal going to its jurisdiction for it to fail to consider claims she did not make or conduct that she had engaged in since the Tribunal gave its decision.
Ground 1
Ground 1 is not supported by particulars, evidence or oral or written submissions.
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
The Applicant was directed on 8 October 2008 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 14 November 2008. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing. As stated above in these Reasons, no evidence was filed by the Applicant.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, the allegation of bias or apprehended bias is rejected.
To the extent that ground 1 refers to s.91R of the Act, such assertion by itself is meaningless.
To the extent that the Applicant claimed to have engaged in conduct in Australia, the Tribunal had regard to s.91R(3) of the Act. The Tribunal accepted that the Applicant had participated in Falun Gong related activities in Australia. However, the Tribunal was not satisfied that the Applicant engaged in those activities other than for the purposes of strengthening her claims to be a refugee. In accordance with s.91R(3) of the Act, the Tribunal disregarded such conduct.
In the circumstances, ground 1 is rejected.
Ground 2
Ground 2 asserts that the Tribunal failed to comply with s.424A of the Act. Ground 2 is not supported by particulars, evidence or oral or written submissions.
At the heart of the Tribunal’s decision was its adverse credibility findings in respect of the Applicant’s evidence to have been a Falun Gong practitioner in China.
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 of the oral evidence given by the Applicant. (AOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21])
A fair reading of the Tribunal’s decision record makes clear that the Tribunal identified with particularity the oral evidence given by the Applicant. Further, to the extent that the Applicant resiled from her written claims, the Tribunal noted that it did not draw adverse inferences about her credibility from the fact that her oral evidence markedly differed from her statement provided in support of her protection visa application. In particular, the Tribunal noted that the Applicant resiled from her claims to have been involved in “pro-Falun Gong political activism” in China and to have been detained by the police in China.
The Tribunal noted the Applicant’s new claims that she had become involved in Falun Gong practice in China in late 2005 and that police may wish to question her because a fellow practitioner had been detained and may have informed on her.
The Tribunal rejected the Applicant’s claims of having practiced Falun Gong in China or of being suspected by the Chinese Public Security Bureau to have practiced Falun Gong in China.
The Tribunal’s findings, 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).
In the circumstances, part of the reason the Tribunal affirmed the decision under review was because of its rejection of the Applicant’s evidence. Those thought processes of the Tribunal and its assessment of the Applicant’s credibility are not “information” that enliven the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). Otherwise, such information was provided by the Applicant to the Tribunal for the purposes of her review and is therefore excluded from the obligations of s.424A(1) of the Act by reason of ss.424A(3)(b) or (ba) of the Act.
To the extent that the Tribunal had regard to independent country information before it that Falun Gong was “branded an illegal cult by the Chinese authorities” in 1999, such information is not specifically about the Applicant and is just about a class of persons of which the Applicant claims to be a member. Such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
Accordingly, ground 2 is rejected.
Ground 3
Ground 3 asserts that the Tribunal failed to consider the claims made by the Applicant in her application and that the Tribunal’s decision was not supported by “sufficient materials”. Ground 3 is not supported by particulars, evidence or oral or written submissions.
The Court asked the Applicant what were the claims that she said the Tribunal failed to consider. The Applicant responded that the Tribunal failed to consider her claim of having hidden on an island in China before coming to Australia.
However, a fair reading of the Tribunal’s decision makes clear that the Tribunal had specific regard to the various claims made by the Applicant to the Tribunal at the hearing about where she lived and slept before she left China. In particular, the Tribunal noted the Applicant’s evidence that at one point in her evidence she said she had “stayed at her sister’s house, for which she had a key, on the island”.
Ultimately, part of the Tribunal’s reasons for its adverse credibility findings were the inconsistencies in the Applicant’s evidence about where she lived at various times and where and when she may have been in hiding. As stated above in these Reasons, those findings were open to it on the evidence before it and for which it gave reasons.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered in detail all the Applicant’s claims arising from her oral evidence. The Tribunal put to the Applicant concerns it had about her evidence and noted her responses. In particular, the Tribunal noted that it told her that the inconsistencies as to where and when she was living in particular places may be a reason for refusing her application and invited the Applicant to comment or respond orally or in writing. The Tribunal noted that the Applicant “chose to respond immediately and orally”. As stated above in these reasons, no transcript was provided to this Court and, in the circumstances, the Court accepts as accurate the Tribunal’s decision record.
To the extent that ground 3 alleges that the Tribunal’s decision is not supported by sufficient materials, a fair reading of the Tribunal’s decision does not support such an assertion. As stated above in these reasons, at the heart of the Tribunals decision was its adverse credibility findings in relation to the Applicant’s oral evidence.
Otherwise, ground 3 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, 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 sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 5 December 2008