SZNAC v Minister for Immigration
[2009] FMCA 372
•29 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 372 |
| 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 the requirements of s.91R(3) of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A; 424A(3)(a); 424A(3)(b); 424A(3)(ba); 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 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 SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451 SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 |
| Applicant: | SZNAC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3174 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 April 2009 |
| Date of last submission: | 20 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Ms K. Whittemore, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3174 of 2008
| SZNAC |
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 14 October 2009 and handed down on 4 November 2009.
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 28 March 2008 having departed legally as part of a travel group on a passport issued in his own name and a sub-class 676 visa.
On 4 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 11 June 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 16 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 14 October 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 2 December 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 (“the Convention”).
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 the Chinese government and authorities as well as discrimination from employers in China by reason of his practice of Falun Gong.
The Delegate’s decision
On 11 June 2008, 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 Convention.
The Tribunal’s review and decision
On 16 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided his passport and three photos in support of his review application.
On 28 July 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 18 September 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 18 September 2008, the Applicant gave evidence at the hearing 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 the solicitor for the First Respondent in his written submissions as follows:
“Proceedings before the Tribunal
5. On 16 July 2008, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 40 – 43.
6. By a letter dated 28 July 2008, the Tribunal validly invited the applicant to attend a hearing on 18 September 2008, to give oral evidence and present arguments in support of his case: CB 44 – 45.
7. The Tribunal decision contains a record of matters discussed at the hearing: CB 63 – 69. The applicant confirmed the claims made in his statement to the Department and elaborated on them: CB 63 [26] – 66 [35]. He also claimed to have practiced Falun Gong in Australia at Regents Park and Burwood and to have participated in Falun Gong rallies at Darling Harbour and in Chinatown: CB 66 [42] – 67 [43].
8. The Tribunal questioned the applicant about his knowledge of Falun Gong and what the practice meant to him: CB 66 [36] – [41]. Finally, the Tribunal put independent country information to the applicant about the PRC authorities’ treatment of Falun Gong practitioners post 1999 and its concerns about various inconsistencies this gave rise to in his claims, as well as various concerns it had about his claims generally: CB 67 [44].
9. The Tribunal affirmed the delegate’s decision on 4 November 2008. On the basis of adverse credibility findings, the Tribunal rejected that the applicant was a Falun Gong practitioner in the PRC or that he was of any adverse interest to the Chinese authorities: CB 71 [59] and 72 [61]. The Tribunal did not consider that the applicant displayed the level of knowledge of Falun Gong reasonably expected of a practitioner of 12 years standing (CB 70 [54]) and found that he was unable to provide a persuasive or credible account of his personal Falun Gong experience. The Tribunal found the applicant’s evidence to be superficial (CB 70 [55]), vague, non-responsive and evasive (CB 70 [57]) and commented that when these concerns were raised with the applicant, his explanations were implausible (CB 70 [57]) and inconsistent with country information: CB 71 [58].
10 . The Tribunal accepted that the applicant participated in a number of rallies in Sydney in support of Falun Gong and that he had practised Falun Gong in Australia. However, given its finding that the applicant was not a Falun Gong practitioner in China, the Tribunal was not satisfied that these activities were undertaken by the applicant for a purpose other than to strengthen his claim to be a refugee. In compliance with s.91R(3), the Tribunal properly disregarded the applicant’s conduct in Australia when assessing whether he had a well founded fear of persecution: CB 71 [60].[1]
11. The Tribunal therefore concluded that it was not satisfied that the applicant was owed protection obligations and affirmed the delegate’s decision: CB 72 [62]. The Tribunal’s adverse credibility findings were open to it for the reasons given and as findings of fact that fall exclusively within the jurisdiction of the Tribunal to make, should not be disturbed by the court. ”
[1] SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451at [22].
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 9 February 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. The Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit. However, no amended application or evidence was filed by the Applicant. On 17 April 2009 the Applicant filed written submissions.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services.
At the commencement of the final hearing before this Court, the Applicant confirmed that he relied on the grounds contained in the application filed on 21 December 2008.
The grounds of the application are expressed to be as follows:
“1. The RRT decision was affected by jurisdictional error in that it made findings on no reasonable basis.
Particulars: The RRT found the applicant was able to demonstrate some knowledge of some aspects of Falun Gong, but it also found that this was at a superficial level and could easily have been learned for the purpose of thye (sic) application.
The applicant claims that his knowledge about Falun Gong is not superficial and he gave correct answer to all questions asked by the Tribunal.
2. The Tribunal incorrectly applied S91R(3) of the Act.
Particulars: The applicant is an active Falun Gong practitioner and he has participated in various Falun Gong activities in Australia. The applicant claims that he does not engage in these conducts for the purpose of his visa application.”
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 confirmed that he had not filed any other documents in support of his application to this Court, other than the written submissions filed on 17 April 2008.
Ground 1
Ground 1 alleges that the Tribunal had no reasonable basis for its factual findings.
In support of Ground 1, the Applicant submitted that the Tribunal had not believed that he was a refugee, whereas the Applicant assured the Court that he was a refugee. The Applicant also made orally a further complaint for the first time that the Tribunal had not given the Applicant an opportunity to respond to its concerns.
The Court raised with the Applicant the fact that he had not filed any transcript of the Tribunal hearing in support of his application, despite having been directed to do so on 9 February 2009. The directions made on that occasion explained to the Applicant that if he wished to rely on a transcript of the hearing before the Tribunal he would need to have a transcript prepared and verified by affidavit. The directions also informed the Applicant that, if his evidence was to include tapes of the Tribunal hearing, he must give notice to the First Respondent and the Court that he intended to do so.
As stated above, the Applicant did not provide any evidence 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 and the exchanges it had with the Applicant at the hearing.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims. The Tribunal then explored the Applicant’s claims with him in some detail. The Tribunal also noted the difficulties that it had in eliciting responses from the Applicant to its questions. The Tribunal noted the Applicant’s eventual responses. The Tribunal noted in some detail the aspects of Falun Gong practice that it explored with the Applicant. The Tribunal stated that it had regard to the three photographs provided to it by the Applicant of the Applicant attending rallies in Darling Harbour and Chinatown about a month prior to the Tribunal hearing.
The Tribunal noted that it read to the Applicant the independent country information to which it had regard from the United States Department of State, Country Report on Human Rights Practices 2007 on China. The Tribunal noted the Applicant’s responses to that information. The Tribunal also noted matters of concern that it put to the Applicant about his evidence, particularly those aspects of his evidence that were inconsistent with the independent country information before it and noted the Applicant’s responses.
At the conclusion of the Tribunal hearing, the Tribunal asked the Applicant whether there was anything he wished to add. The Tribunal noted that the Applicant responded by recounting his earlier claims.
In the circumstances, the Applicant’s complaint that he was not given an opportunity by the Tribunal to respond to concerns that the Tribunal had about his evidence is not made out.
In relation to the allegation in Ground 1 that the Tribunal had no reasonable basis for its findings, for the reasons below, a fair reading of the Tribunal’s decision record does not support such an allegation.
The Tribunal found the Applicant’s evidence to be internally inconsistent as well as inconsistent with country information. The Tribunal also noted that it had “major concerns” about the level of knowledge of Falun Gong displayed by the Applicant in circumstances where the Applicant claimed that he had been a practitioner of 12 years standing. The Tribunal noted that it considered the Applicant’s evidence of his knowledge and practice of Falun Gong “very carefully” and gave details of the lack of knowledge displayed by the Applicant at the hearing. The Tribunal found the Applicant’s knowledge of Falun Gong to be “at a superficial level and could easily have been learned for the purpose of the application.”
Ultimately, the Tribunal comprehensively rejected the Applicant’s claims of being a Falun Gong practitioner in China and the Applicant’s claims of having been identified as such by Chinese authorities. The Tribunal comprehensively rejected the Applicant’s claims of having been investigated, detained and tortured as a suspected Falun Gong practitioner in China. The Tribunal did not accept that the Applicant left China because he feared or faced persecution in China as a Falun Gong practitioner.
The Tribunal accepted that the Applicant had engaged in Falun Gong activities in Australia “such as attending demonstrations, practice groups and study sessions”. However, the Tribunal was not satisfied that such conduct was engaged in other than to strengthen the Applicant’s refugee claims. The Tribunal noted that accordingly it must disregard such conduct pursuant to s.91R(3) of the Act.
The Tribunal was not satisfied that the Applicant has a well-founded fear of persecution for a Convention related reason were he to return to China now or in the reasonably near future.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. 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 applied the correct law to its findings in reaching its conclusion that the Applicant was not a person to whom Australia has protection obligations under the Convention.
Otherwise Ground 1 seeks 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).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 alleged that the Tribunal incorrectly applied s.91R(3) of the Act.
In support of Ground 2, the Applicant submitted that he had engaged in Falun Gong rally activities and practice in Australia not solely for the purpose of his application.
The Tribunal, having not been satisfied that such conduct was engaged in other than for the purposes of strengthening the Applicant’s refugee claims, noted that it must therefore disregard such conduct in considering whether the Applicant had a well-founded fear of persecution for a Convention related reason. A fair reading of the Tribunal’s decision record makes clear that the Tribunal did in fact disregard that conduct in considering whether the Applicant had a well-founded fear of persecution for a Convention related reason. In doing so, the Tribunal complied with s.91R(3) of the Act.
As referred to above, the Tribunal’s findings in respect of the Applicant’s conduct in Australia were open to it on the evidence and material before it and for the reasons it gave.
The Tribunal’s approach to the Applicant’s claims of conduct in Australia was consistent with the principles as espoused in SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451.
Otherwise Ground 2 also seeks merits review which this Court cannot undertake.
Accordingly, Ground 2 is not made out.
Further Claims
In his written submissions the Applicant made a further complaint in the following terms:
“The RRT failed to comply with S424A of the Act. The RRT found the applicant’s evidence were implausible, inconsistent and appeared to be made up on the spot. (CB 70-71 at 57). The RRT found significant aspects of his account to be inconsistent with country information. (CB 71 at 58) The RRT failed to invite the applicant to comment on such inconsistencies.”
This complaint is misconceived in that the only information to which the Tribunal had regard was the information provided to it by the Applicant and country information. Such information is specifically excluded from the obligations of s.424A of the Act by reason of s.424A(3)(a),(b) and (ba).
The reason for the Tribunal affirming the decision under review was its adverse credibility findings in respect of the Applicant’s claims following its analysis and evaluation of the evidence and material before it. Such thought processes of the Tribunal are not information that enlivens the obligations of s.424A of the Act. (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [17]–[21]).
Otherwise, the Tribunal complied with its statutory obligations in making its decision, including the conduct of its review.
Accordingly, this complaint is not made out.
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 at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then 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 should be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 29 April 2009
[2]Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham(2000) 168 ALR 407 at [67].
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