SZMVY v Minister for Immigration
[2009] FMCA 662
•8 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVY v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 662 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424, 424AA, 424A, 441A |
| Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515 SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 |
| Applicant: | SZMVY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2694 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 8 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | DLA Phillips Fox |
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 2694 of 2008
| SZMVY |
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 2 September 2008 and handed down on 23 September 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 March 2007 and applied for a protection visa in January 2008. In a statement accompanying her protection visa application the applicant claimed to fear persecution on the basis that she was a Falun Gong practitioner in China. She set out in her statement a number of adverse consequences and events that she claimed she had suffered as a result of being known by the authorities as a practitioner of Falun Gong, including a warning and dismissal from her employment in 1999, a warning from the police in 1999 and an escape from a police chase during a Falun Gong meeting in 2000, at which time her arm was seriously wounded by broken glass thrown by a policeman. She also claimed she was arrested and detained in 2004 and bailed with the assistance of her boyfriend who helped her arrange to come to Australia. She claimed her boyfriend and son had suffered adverse consequences because she was a Falun Gong practitioner. She claimed she practised Falun Gong in Australia and participated in activities.
The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. The applicant was invited to and attended a Tribunal hearing. She provided the Tribunal with a number of supporting documents and supporting statements.
The Tribunal also wrote to the applicant on 30 July 2008 confirming that during the hearing the applicant had been given particulars of information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review, that she had been given additional time to comment on or respond to the information and advising her of particulars of the information as advised during the hearing.
The applicant responded on 27 August 2008 with written comments and some further supporting statements and documentation.
In its reasons for decision the Tribunal set out at length the applicant's claims made in connection with the protection visa application and at the Tribunal hearing. The Tribunal reasons for decision are the only evidence before the Court of what occurred at the Tribunal hearing. It is apparent from that account of the hearing that the Tribunal raised with the applicant a number of issues of concern relevant to her application, in addition to sending her a letter setting out the particulars of the information of concern.
In its findings and reasons the Tribunal summarised the applicant's claims to fear that if she returned to China she would suffer harm because of her Falun Gong practice, that she began practising Falun Gong in 1997, that she was dismissed from her work in 1999 and participated in a Falun Gong meeting in 2000 during which she was wounded when a policeman threw a piece of broken glass at her, that she later worked and had a restaurant and practised Falun Gong in the restaurant, that thereafter she was caught and detained and subsequently returned to work and then came to Australia.
The Tribunal found that at the hearing the applicant could not provide plausible explanations for much of her evidence and also that she had provided inconsistent testimony in relation to her Falun Gong practice in Australia. The Tribunal detailed its concerns in relation to particular aspects of the applicant's evidence, including matters raised with her in relation to her experience when participating in a Falun Gong conference in 2000. It found that she could provide no plausible explanation as to why she had been able to outrun a policeman in the particular circumstances she described and concluded that the applicant was not recalling an event which had in fact occurred. It found that she was not credible.
The Tribunal also had regard to the applicant's claims about the periods she worked at particular times and the inconsistency between such claims and income certificates provided in information lodged with her student guardian visa application (the visa on which she travelled to Australia). It discussed the applicant's response to its concerns in that respect, but found that she had been unable to provide any plausible explanation for the discrepancy between her salary and her claims about periods of work. This led the Tribunal to find she was not a credible witness, that she was not absent from her employment in 2005 as claimed and that her alleged detention and subsequent illness for over two months in 2005 did not happen. The Tribunal referred to supporting statements that the applicant had provided from two named witnesses, but found that given the income certificates in relation to the applicant's earnings during the periods in issue, as well as its concerns with the applicant's credibility, it did not place any weight on those untested statements.
The Tribunal also had regard to inconsistencies in the applicant's statements in her student guardian visa application and at the hearing in relation to her employment (and whether she was dismissed in 1999). It did not accept the applicant's explanation that her friend filled in (or the later claim that he changed details in) the visa application form and was not satisfied that she had lost her employment in 1999. While considering the supporting statement from her friend, given its overall impression of the applicant, the Tribunal did not place any weight on this untested statement. The Tribunal was not satisfied that the applicant practised Falun Gong in China or that she suffered from any of the alleged harm.
While there were some inconsistencies in her claims, the Tribunal accepted that the applicant had attended some Falun Gong classes in Australia and had been involved in certain activities, but was unable to accept that she had been practising for the periods claimed given her inability to repeat at the hearing an earlier written claim she had made in relation to the extent and place at which she practised in Australia. It noted the absence of evidence supporting her claims that photos of her activities had been exposed in the media and on the internet and found that there was nothing to suggest that her activities were other than because of her own conduct. Even though the Tribunal accepted that the applicant had engaged in some Falun Gong activities and events in Australia, it was not satisfied that she had engaged in those activities otherwise than for the purpose of strengthening her refugee claims and this led the Tribunal to disregard this conduct in determining whether she had a well-founded fear of persecution.
The Tribunal found, given the applicant's overall lack of credibility in relation to events in China, that she was not a genuine Falun Gong practitioner, did not attempt to practice Falun Gong in China and that none of the events she claimed occurred as a result of her practice in China had in fact occurred. The Tribunal repeated that it accepted that she had engaged in some Falun Gong activities in Australia, but that it was not satisfied that she did so otherwise than for the purpose of strengthening her refugee claims and hence that it had disregarded that conduct in determining whether the applicant had a well‑founded fear of being persecuted.
The Tribunal concluded that the applicant was not a genuine Falun Gong practitioner and did not face a real chance of serious harm for a Convention-related reason if she returned to China.
The applicant sought review by application filed in this Court on 20 October 2008. The only grounds in the application are that the Tribunal did not make the right decision and that the applicant is a genuine Falun Gong practitioner. However these grounds take issue only with the merits of the Tribunal decision. Merits review is not available in this Court, as I endeavoured to explain to the applicant.
In oral submissions the applicant claimed that she provided a lot of explanation to the Tribunal, but that the Tribunal member would not listen and that no matter how much more she wanted to say, the Tribunal member would not listen and would not believe explanations she provided. Insofar as the applicant takes issue with factual findings of the Tribunal or its adverse credibility finding, that does not establish jurisdictional error. Credibility findings are a matter for the Tribunal and it has not been established that the findings were not open to the Tribunal on the material before it for the reasons that it gave.
I raised with counsel for the first respondent the possibility that the applicant's contentions might be seen as raising a claim of actual or apprehended bias on the part of the Tribunal beyond the fact that the applicant was concerned that the Tribunal did not believe her. It is well established that it is a rare and exceptional case in which bias on the part of the Tribunal will be established simply by reference to the Tribunal reasons for decision (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]). This is not such a case. There is nothing in the Tribunal reasons for decision to establish either actual or apprehended bias on the part of the Tribunal. Nor is the Tribunal account of what occurred in the Tribunal hearing such as to establish actual bias or to give rise to an apprehension of bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. In particular, the fact that the Tribunal did not believe the applicant is not such as to give rise to an apprehension of bias.
The applicant also suggested in oral submissions that she had provided a lot of documents to the Tribunal and claimed that she did not think that the Tribunal had looked at these documents. I asked her to clarify her concern in this respect. She was not able to draw my attention to particular documents, other than referring to the fact that she had provided a written submission to the Tribunal. I take this to be a reference to the fact that the Tribunal invited the applicant to respond to its concerns and gave her the opportunity to do so in writing and that the applicant provided a response to the Tribunal letter.
However it is apparent from the Tribunal reasons for decision that the Tribunal considered the applicant's explanations in relation to matters such as the events in 2000, her income certificates, her employment and events in Australia, those being the matters raised in the letter after the hearing and addressed in the applicant's statement. The fact that the Tribunal did not accept or find plausible the applicant's explanations does not establish that the Tribunal failed to have regard to an aspect of the applicant's claims or that it failed to consider an issue in a manner such as to constitute jurisdictional error.
In written submissions counsel for the first respondent addressed three other issues that might be seen to arise on the material before the Court, notwithstanding that none of these issues were raised by the applicant.
First, it was contended that to the extent that the Tribunal might be said to have been minded to rely on information within the meaning of s.424A of the Migration Act 1958 (Cth), it met its obligations under the Act in the manner in which it put these issues to the applicant both in the course of the hearing and thereafter. It appears from the letter of 30 July 2008 that these matters may have been raised in the hearing consistent with the operation of s.424AA of the Act, but in any event, the Tribunal complied with s.424A of the Act in the manner in which it put these matters to the Applicant in the letter of 30 July 2008 (and see s.424A(2A)).
I note in that respect that that letter included an invitation to the applicant to comment on information contained in the student guardian visa application which the Tribunal had obtained from the Department, which might well be regarded as information within s.424A(1) of the Act. It also put to the applicant its concern about the lack of convincing detail and plausibility of certain aspects of her story and inconsistencies between her evidence and the contents of the earlier application. Hence, insofar as such matters might constitute “information” within s.424A(1) of the Act, they were raised with the applicant. It is not apparent on the material before the Court that the Tribunal failed to comply with the Migration Act in this respect.
The next issue addressed by counsel for the first respondent was the possible operation of s.91R(3) of the Act. Under s.91R(3) in determining whether a person has a well‑founded fear of being persecuted for a Convention reason, the Tribunal must disregard any conduct engaged in by the person in Australia unless 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.
It is possible that the perceived inconsistencies in the applicant's evidence about her activities in Australia could be seen as having contributed to the Tribunal's adverse view of her general credibility. However it is clear from the Tribunal reasons for decision that it addressed the applicant's evidence in relation to events in Australia in the course of making primary findings of fact as to whether or not the conduct she claimed she engaged in in Australia had occurred. In that context, assessment of her evidence about what she had done in Australia was part of the process of finding primary facts as considered by the Full Court of the Federal Court in SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515 at [22].
Having made such findings, the Tribunal then went on to find that it was not satisfied that the applicant had engaged in these activities otherwise than for the purpose of strengthening her refugee claims. That finding was made in light of the specific findings that the Tribunal made about the applicant’s evidence about the events in Australia, inconsistencies and inadequacies in that evidence and the fact that there was nothing before the Tribunal to suggest that those activities were anything other than because of her own conduct.
As the Tribunal was not satisfied by the applicant that she had engaged in those activities otherwise than for the purpose of strengthening her refugee claims, it disregarded that conduct in determining whether she had a well‑founded fear of being persecuted. This does not reveal that the Tribunal took into account activities in Australia in determining whether the applicant had a well‑founded fear of persecution in contravention of s.91R(3).
Finally, the application of s.424 was considered in relation to the fact that the Tribunal had asked the Department to provide it with the file for the applicant's earlier visa application, that is the student guardian visa application. It is apparent from the Court Book that the Tribunal contacted a liaison officer at the Department by email on 15 May 2008 requesting a Departmental file. The request is expressed generally as a request to the Department to provide “the following visa paper files” in connection with the review. The visa applicant and other identifying factors are then described.
Under s.424(1) of the Act the Tribunal may get any information it considers relevant. Under s.424(2), as it stood at the relevant time, the Tribunal may invite a person to give additional information. Where the Tribunal did extend such an invitation, certain requirements in relation to the method of making the invitation (in particular in accordance with the requirements of s.441A of the Act) applied under s.424(3).
However, consistent with the approach taken by the Full Court of the Federal Court in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407, the Tribunal's request to the Department to provide it with the file in relation to the student guardian visa application is not such as to give rise to the operation of s.424(2) and the need to comply with s.424(3). That is so primarily because the Tribunal's request was a request for documents rather than for information and, as the Full Court of the Federal Court decided in SZLPO, such a request for documents does not come within the scope of s.424(2) of the Act (see SZLPO at [110] – [114] and at [157]). I am satisfied that the Departmental file is a “document” or “documents” as distinct from “information” in the sense considered by the Full Court of the Federal Court in SZLPO.
It is therefore not necessary to determine the additional reason suggested by counsel for the first respondent that s.424(2) would not apply, that being the suggestion that, notwithstanding that the email was directed to a person described as the RRT liaison officer, in substance the request was directed to the Department and not to a natural person. While it was not necessary for the Full Court in SZLPO to determine whether the word "person" in s.424(2) meant only a natural person, the Court expressed the view that "person" did mean only a natural person. On that basis the request to the Department can be seen in substance as a request to an entity, being the Department, as distinct from a request made to a natural person in his or her own right. In any event, it was a request for documents rather than a request for information and on that basis s.424(3) and the obligations therein did not arise.
As no jurisdictional error has been established, the application must be dismissed. I will hear submissions in relation to costs.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $5,000. The applicant raised the fact that she had no money, no work permit and no ability to raise that money. However the applicant's lack of funds is not in the circumstances of this case, a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. I consider that the amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 15 July 2009
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