SZMTI v Minister for Immigration - [2009] FMCA 984

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 984

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 425

Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356

Applicant:

SZMTI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1258 of 2009

Judgment of:

Barnes FM

Hearing date:

16 September 2009

Delivered at:

Sydney

Delivered on:

16 September 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr J A C Potts

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1258 of 2009

SZMTI

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 made on 30 April 2009 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 February 2008 and applied for a protection visa in March 2008. In essence he claimed to have a well-founded fear of persecution on the basis that he was a Falun Gong practitioner.
The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. The Tribunal put information to the applicant pursuant to s.424A of the Migration Act 1958 (Cth). The Tribunal as originally constituted affirmed the decision of the delegate. That decision was quashed by consent orders of this court made on 2 December 2008. After the remittal to the Tribunal as reconstituted a further hearing invitation was extended to the applicant. The applicant attended such a hearing. It is that reconsideration that is the subject of these proceedings.
In its reasons for decision the Tribunal set out at length the claims made by the applicant in connection with his protection visa application, at the hearing conducted by the Tribunal as originally constituted and at the second Tribunal hearing. The Tribunal also referred to material provided by the applicant in support of his claims including statutory declarations from persons stating they were Falun Gong practitioners in Australia who had seen the applicant at certain activities.
In its findings and reasons the Tribunal summarised the applicant’s claims to fear persecution in China as a Falun Gong practitioner. He claimed that he first started to practise Falun Gong in December 2004 when introduced to it by his mother-in-law because he suffered ongoing pain from a heel problem. He claimed he used a DVD and book given to him by his mother-in-law to practise Falun Gong each evening after returning home from his work as a chef.
The applicant claimed that on 17 February 2007 two police officers and a representative of the local neighbourhood committee had come to his home between 11 pm and midnight, questioned him about Falun Gong and told him that someone had reported that he practised Falun Gong. He had denied this, but they had started to search the house. He claimed that they found his Falun Gong book and CD that he had hidden in his wife’s handbag upon hearing a knock on the door.
The applicant claimed that he was detained that evening, beaten and mistreated at the police station and that under questioning he admitted to the practice of Falun Gong. The applicant’s brother allegedly paid a bribe to his friend, a “Director”, to secure the applicant’s release on the morning of 18 February 2007. His brother was said to have paid a further amount to ensure that the matter did not escalate to a “higher level” and to have the applicant’s information deleted from the records. The applicant claimed that he had to sign an undertaking that he would not continue to practise Falun Gong.
The applicant claimed that thereafter police officers and a representative from the neighbourhood committee used to come to his home once a week to check up on him, ask him questions and look around his house to see whether he had any books there. He said that he did not return to work after release from detention and gave a number of reasons for this including his injury, his pursuit of the practice of Falun Gong, his ability to practise Falun Gong to deal with his injury being affected by visits by the PSB and his efforts to find possibilities to go overseas including travelling to another town to seek an agent. He claimed that he and his wife lived on money they obtained when they sold their house.
The Tribunal found that it had a number of concerns with the applicant’s evidence and was not satisfied that he had given truthful evidence about his life and experiences in China. It found certain aspects of his evidence implausible and that he had given inconsistent evidence. It set out details of its concerns, including that the applicant had given inconsistent evidence about the length of his alleged detention in 2007 (whether it was for 24 hours or a lesser period), that he had given confused evidence about his actual residential addresses in China up until the time he left China and that there had been some variation in his claims in relation to when the family residence was sold. The Tribunal also expressed some concerns about the applicant’s claims about why he did not work as a chef after he was released from detention.
Importantly, the Tribunal had regard to the fact that at the hearing the applicant had said that when the police entered his home he had hurriedly hidden the CD and the book in his wife’s handbag where they located it, but that the police did not question his wife about the material. The Tribunal recorded that it had sought an explanation for the failure to question his wife and that the applicant’s explanation was that his wife was “not suspected because the information that the PSB had received was that the applicant was the one who practised Falun Gong”. However, as the Tribunal had put to the applicant at the hearing, it found it implausible that on finding such evidence in his wife’s handbag the police would not at the very least have questioned her. It was not persuaded by the applicant’s explanation for this failure.
The Tribunal also found other aspects of the applicant’s claims implausible, in particular his claim that the bribe allegedly paid by his brother to the PSB was adequate to secure his release and to wipe his record clean, but only insofar as he managed to remove information which would have seen the matter escalated to a higher level, while at the same time PSB officers (who the Tribunal presumed were working at a lower level below the director) apparently would retain an interest in the applicant on the basis that he had signed an undertaking prior to his release.
Further doubts were said to be cast on the veracity of his evidence by the fact that during the period from February 2007 until February 2008 when the applicant left China, he had applied for and been granted a new passport without difficulty. While the applicant referred to the assistance of his brother he was not able to provide specific information in this respect and the Tribunal concluded that the passport was issued in the normal manner and through routine procedures and that this supported the finding that the applicant was not of adverse interest to the authorities at this time. The Tribunal also noted that throughout the period after February 2007 until February 2008 the applicant was at liberty to travel at will to another town in China.
The Tribunal concluded on the basis of inconsistencies in relation to significant events in the applicant’s past experiences in China that it was not satisfied that the applicant was ever a Falun Gong practitioner in China. On this basis the Tribunal did not accept that he was located at his home in January or February 2007 by the PSB and the residential committee or accused of being a Falun Gong practitioner. It did not accept his claims about detention, mistreatment, that his brother secured his release by payment of a bribe or that he signed an undertaking that he would not practise Falun Gong.
The Tribunal therefore also rejected the applicant’s claim that he was visited and harassed by the PSB and the neighbourhood committee from February 2007 until February 2008. While it accepted that the applicant left his employment in 2007, it was not satisfied that he lost his job because of his detention or for any reason associated with Falun Gong. It found instead that he left his employment of his own volition and in order to travel to another town to locate an agent to facilitate his travel to Australia, which he had told the Tribunal was the destination of his choice.
The Tribunal reiterated that it found that the applicant lacked credibility, that he was not a Falun Gong practitioner and that therefore it did not accept he suffered the harm he had claimed. It found that he would not practise Falun Gong if he returned to China and hence found there was not a real chance that he would suffer persecution in the reasonably foreseeable future in China for the reason that he was a Falun Gong practitioner.
The Tribunal addressed the applicant’s claims about his activities in Australia, accepting that he had attended Falun Dafa study sessions at a location in Burwood. It referred to the statutory declarations to this effect provided by the applicant, but noted that this was six months after he arrived in Australia and two months after the first Tribunal hearing.
It also accepted that the applicant had attended a Falun Gong practice site at Campsie although not with any frequency or regularity. It referred to photographs that he provided to the first Tribunal and accepted that he had participated in a rally organised by the Falun Dafa Association on 3 May 2008. However the Tribunal had regard to s.91R(3) of the Act which provides that:
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.
The Tribunal reiterated that it had found that the applicant was not a Falun Gong practitioner in China. It found that he had attended study sessions and had practised Falun Gong in Australia and attended activities organised by the Falun Dafa Association for the purpose of strengthening his claim to be a refugee. Further, since the applicant had not satisfied it that his conduct was otherwise than for the purpose of strengthening his claim to be a refugee it disregarded such conduct pursuant to s.91R(3) of the Act.
The Tribunal concluded that the applicant was not a genuine Falun Gong practitioner in China, that he would not seek to practise Falun Gong if he returned to China in the foreseeable future and that the chance was therefore remote that he would come to the adverse attention of the authorities for the reason that he was or was suspected to a Falun Gong practitioner. It found that he did not have a well-founded fear of persecution for a Convention reason if he returned to China.
The applicant sought review by application filed in this court on 25 May 2009. The application contains one ground in which the applicant claims to have been a Falun Gong practitioner since December 2004 and to have been detained and mistreated in January 2007 and released after his brother paid a bribe. It refers to what it describes as “… in the Decision of the RRT, the delegate said; “The Tribunal found that the applicant was not a Falun Gong practitioner in China.” and continues:
I think the delegate didn’t consider my true expirence (sic) of practice of Falun Gong in China. I think the delegate has bias towards my application of protection visa, which is a jurisdictional erroe (sic) while making his decision.
The applicant did not file any evidence in support of his application or written submissions. When given the opportunity in the hearing today to make submissions he had nothing to say in support of his application and nothing to say in reply to the oral submissions for the first respondent. It is not clear whether the applicant is taking issue with the decision of the delegate of the first respondent or with the decision of the Tribunal.
However, even if bias were to be made out on the part of the delegate of the first respondent such as to invalidate that decision (a matter which it is not necessary to determine in these proceedings) the Tribunal had jurisdiction to review the matter on its merits even if there was an invalid primary decision. In effect, the applicant had elected to treat the delegate’s decision as valid by seeking and having merits review.
If the allegation is an allegation of bias, whether actual or apparent on the part of the Tribunal, neither actual bias in the sense considered in the Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 or apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 is made out on the material before the court.
Insofar as it is intended to be contended that there was actual bias in the sense of prejudgment or that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or argument may be presented, the heavy bias that an applicant who asserts actual bias must meet is not met in this case (see Jia Legeng and also see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). The only material before the Court as to the conduct of the Tribunal review is in the court book. It is apparent from the hearing record that the Tribunal as reconstituted invited the applicant to a second hearing which he attended with the assistance of a Mandarin interpreter. The Tribunal hearing commenced at 12.50 pm and did not end until 4.30 pm. It is apparent from this and also from the Tribunal’s detailed account of what occurred in that hearing that the hearing could not in any way be described as perfunctory. The Tribunal raised with the applicant its concern in a number of respects with his evidence and gave him the opportunity to respond.
Insofar as the applicant’s contention is that of apprehended bias from the perspective of the appropriately informed, fair-minded lay observer and whether such a person might reasonably apprehend that the Tribunal might not bring an impartial mind to resolution of the question to be decided, again this is not made out on the material before the court, including the Tribunal’s account of the hearing and its reasons for decision.
I note that it is open to the Tribunal to engage in vigorous testing of an applicant’s claims and that this does not establish bias. Indeed, even the expression of a preliminary view by the Tribunal raising issues with an applicant in the course of the hearing is not such as to establish apprehended bias from the perspective of the hypothetical fair-minded and informed person aware of the nature of the Tribunal’s review functions and proceedings (see Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 and cases discussed therein).
When one considers the Tribunal reasons for decision this is not a case in which it has been established that the Tribunal’s fact finding was conducted in such a manner as to lead to a reasonable apprehension of bias in the sense considered by Allsop J in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328. The fact that the Tribunal did not accept the applicant’s claim that he was a Falun Gong practitioner is not such as to establish either actual or apprehended bias. I note in that respect that only in a rare and exceptional case would bias on the part of the Tribunal be established simply by reference to the Tribunal reasons for decision (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356).
The ground relied on by the applicant is not made out.
Insofar as the application sought to take issue with the Tribunal’s findings of fact, fact finding is the function of the Tribunal. It has not been demonstrated that there were any errors in the procedure or decision of the Tribunal such as to constitute jurisdictional error. The Tribunal reached conclusions that were open to it on the material before it for the reasons which it gave, which led it to reject the applicant’s credibility.
Merits review is not available in this court and no jurisdictional error is established on the basis of the Tribunal’s adverse credibility findings. I note for the sake of completeness that I accept that, as submitted by counsel for the first respondent, there is nothing evident on the material before the Court to demonstrate any failure by the Tribunal to comply with its obligations under the Migration Act, in particular s.424A and s.425 (having regard to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63) or s.91R(3) of the Act.
The applicant’s disagreement with the Tribunal’s conclusions does not establish jurisdictional error. No jurisdictional error is apparent in the decision or procedures of the Tribunal. As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. Bearing in mind the nature of this case and other similar matters, the involvement of counsel, and the provisions of the Federal Magistrates Court Rules, I consider, doing as best I can on the material before me, that an appropriate amount for costs is the sum of $5,000.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 8 October 2009