SZNBE v Minister for Immigration
[2009] FMCA 437
•8 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 437 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there was information before the Refugee Review Tribunal that enlivened s.424A(1) of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424AA; 424A; 424A(1); 474; pt.8 div.2 |
| SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 |
| Applicant: | SZNBE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3254 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 May 2009 |
| Date of last submission: | 7 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Nair |
| Counsel for the Respondent: | Mr Y. Shariff |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3254 of 2008
| SZNBE |
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 12 November 2008 and handed down the same day.
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 13 April 2008 having departed legally from Beijing on a passport issued in his own name and a visitor visa.
On 17 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 14 July 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 1 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 12 November 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 9 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 Chinese authorities by reason of his practice of Falun Gong. The Applicant claimed that in July 1999 he went with others to Beijing to ask for “freedom of belief”. The Applicant claimed he was mentally and physically mistreated during “brainwashing classes” and forced to sign documents stating he had given up Falun Gong. The Applicant claimed that in July 2005 he was detained for three days and beaten and after his release was subject to “supervision”.
The Applicant expanded upon these claims in a further statement dated 14 June 2008 sent by his migration agent to the Department.
The Delegate’s decision
On 14 July 2008, the Applicant attended an interview with the Delegate where he discussed his claims.
On 14 July 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 Delegate found that the Applicant had “fabricated his account of events in China relating to his Falun Gong activities and the harm suffered.” The Delegate found that the Applicant’s claims lacked veracity and that there was “no credible evidence that the Applicant was a Falun Gong practitioner in China”.
The Tribunal’s review and decision
On 11 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 August 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 9 October 2008 to give oral evidence and present arguments.
The Tribunal noted that it had before it the Department and Tribunal files relating to the Applicant, material referred to in 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 counsel for the First Respondent in his written submissions as follows:
“2.1 The Tribunal’s decision record sets out the applicant’s claims (CB 122[22]-124[27]), the evidence that the applicant gave at the Tribunal hearing (CB 126[29]-132[64]) and the written submissions that he made to the Tribunal after the hearing (CB 132[65]).
2.2 The Tribunal accepted that the applicant was a citizen of China (CB 134[69]), but otherwise rejected his claims. In rejecting the applicant’s claims, the Tribunal was not satisfied:
(a) as to the credibility of the applicant’s claims to have been a Falun Gong practitioner: CB 134[72] and 136[82];
(b) as to the credibility of the applicant’s claim of continuing to protest against the ban of Falun Gong in an area near Tiananmen Square: CB 134[74]-135[75];
(c) as to the applicant’s general credibility (CB 135[76]), the findings were reinforced by:
(i) false information that the applicant had provided in his protection visa application which included fictitious names and dates of birth for his wife and children (CB 135[77);
(ii) the Tribunal’s finding that it was not satisfied that the false information provided by the applicant was not designed solely to deceive Australian authorities: CB 135[78];
(iii) the Tribunal’s finding that it was not satisfied that the applicant could have been unaware of the information provided to Australian authorities or that the applicant did not make false claims even if this was done through his migration agent: CB 136[80]; and
(iv) inconsistencies in the applicant’s evidence: CB 136[82].
2.3 In addition, the Tribunal did not accept that a letter from a person claiming to be the applicant’s neighbour had in fact been written by that person: CB 136[83]. It also found that the dominant purpose of the applicant commencing and carrying on Falun Gong activities in Australia was other than to strengthen his claims to be a refugee, as a result of which this conduct was disregarded pursuant to s91R(3) of the Migration Act 1958 (Cth) (the Act).
2.4 Further, the Tribunal was not satisfied that the Chinese authorities knew about the applicant’s protection visa application and did not accept that the applicant would be at any risk of harm if he were to return to China: CB 137[86]-[88].
2.5 Having considered all the information before it, the Tribunal was not satisfied that there was a real chance that the Applicant would suffer persecution for any Convention related reason should he return to China: CB 137-138[89]. ”
The proceeding before this Court
The Applicant was represented before this Court by Mr Radha Nair, of counsel. The First Respondent was represented by Mr Shariff, of counsel.
On 23 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 Court also referred the Applicant to the Court’s legal advice scheme. The Applicant has participated in the Court’s legal advice scheme. On 9 April 2009, an amended application was filed on behalf of the Applicant.
At the commencement of the hearing before this Court, counsel for the Applicant confirmed that the Applicant relied on the grounds contained in the amended application filed on 9 April 2009.
The grounds of the amended application are expressed as follows:
“Ground 1
The second respondent (“the Tribunal”) denied the applicant natural justice and procedural fairness pursuant to s.424A of the Migration Act 1958.
Particulars:
i) The Tribunal received information through a statement contained in the file of the Department of Immigration and Citizenship. This statement was from a travel agency in China reporting on the circumstances in which the applicant obtained a visa and how the applicant paid for his travel (CB 124).
ii) This was information caught by section 424A.
iii) The Tribunal did not exercise its discretion under section 424A.
iv) The Tribunal did not act in accordance with section 424A.”
At the heart of the amended application is an allegation that the Tribunal breached the requirements of s.424A of the Act.
Counsel for the Applicant submitted that the Tribunal had regard to certain information that was part of its reason for affirming the decision under review, which enlivened the obligations of s.424A(1) of the Act.
Counsel for the Applicant summarised the information as part of a letter dated 17 April 2008 sent to the Department, after the Delegate’s decision, from the China Women Travel Service (“the Letter”). The Letter stated, inter alia, that the Applicant was employed by an electrical company in China which paid for him to travel to Australia as a companion for the wife of a customer of the employer. I accept the submission of counsel for the Applicant that the Letter conveyed that information.
The Letter was not given to the Department or the Tribunal by or on behalf of the Applicant. Counsel for the Applicant submitted that the information in the Letter had the potential to be adverse to the Applicant because it undermined the Applicant’s claims that he fled from China because of his fear of persecution by Chinese authorities by reason of his Falun Gong practice and that he borrowed money to do so.
Counsel for the First Respondent agreed that the Tribunal did not give that information to the Applicant either in writing or in accordance with s.424AA of the Act. However, counsel for the First Respondent submitted that a fair reading of the Tribunal’s decision record disclosed that this information was not information that undermined, rejected or denied the Applicants claims to be a person to whom Australia owed protection obligations and was, therefore, not part of the Tribunal’s reasons for affirming the decision under review. Counsel for the First Respondent submitted that, in the circumstances, the obligations of s.424A of the Act were not enlivened.
The Tribunal referred to the information in the Letter in its decision record as follows:
“On the Department’s file is a statement from a travel agency in China, China Women Travel Service, reporting on the circumstances in which the Applicant obtained a visa. The writer states that the agency obtained documentation from another entity, Henan Youth Travel Service, and made its own enquiries. These included telephone calls to the Applicant’s stated employer, Henan Shangdian Electric Engineering Co. Ltd, in which an employee and the company President both confirmed the Applicant’s employment and travel plans. The agency also confirmed these details in calls to the Applicant and to family members of another person who was said to be planning to travel to Australia with him. The research established that the Applicant’s employer was paying for the Applicant’s travel to Australia. The writer also records that, after it was discovered that the Applicant had absconded from his tour group the agency contacted the President of his company and ‘worked hard to make him help us to contact Mr Wu and tried to make Mr Wu return to China.”
It is common ground that the Applicant told the Tribunal that his previous information about his identity in China and his wife and children was false. The Tribunal noted that the Applicant said that he had not paid money to fabricate documents or obtain wrong information, but to get a visa. The Tribunal noted that the Applicant denied that he had known that fabricated documents were being provided to support his visa application. The Tribunal noted that it put to the Applicant that it found his statement that he did not know his documents were fabricated hard to believe because the Applicant had told the Tribunal that it was very hard for Falun Gong practitioners to leave China and that was the reason he had to give false information. The Tribunal noted that the Applicant replied that he had paid a large amount of money because otherwise he could not have left China.
The Tribunal noted that the Applicant said that the information about his work unit, his family details and details of his employment were false, including that he worked for the employer referred to in the Letter. The Applicant said that he had been employed in China as a mechanic/welder.
Ultimately, the Tribunal rejected the Applicant’s claims ever to have been a Falun Gong practitioner in China or to have suffered harm for that reason based on its adverse credibility findings in respect of the Applicant’s evidence.
Relevantly, in relation to the information referred to in the Letter, the Tribunal said as follows:
“My doubts as to the credibility of the Applicant’s claims are reinforced by the false information he provided in applying for his visa for Australia. This included giving fictitious names and dates of birth for his wife and children and fictitious details about his employer. On the latter point I am prepared to give him the benefit of the doubt by accepting that he was employed as a mechanic/welder by a company named Xin Yun Mechanic as he now claims, even though there is significant information to suggest that he was in fact employed by a company named Henan Shangdian Electric Engineering Co. Ltd.”
A fair reading of the Tribunal’s words, referred to immediately above, make clear that the Tribunal accepted the Applicant’s evidence of having provided false information about himself his wife and his children and false details about his employer. The Tribunal also accepted the Applicant’s evidence that he had been employed in China as a mechanic/welder rather than the information provided in the Letter that he was employed by an electrical company.
Counsel for the Applicant submitted that the language used by the Tribunal, that it gave the Applicant the benefit of the doubt in accepting that he was a welder, rather than employed as alleged in the Letter, was further qualified by the Tribunal’s acknowledgement that “there is significant information to suggest that [the Applicant] was in fact employed by a company named [HS] Electrical Engineering Co Ltd”
Counsel for the Applicant submitted that a fair reading of the Tribunal’s decision record makes clear that the information in the Letter was part of the reason for the Tribunal affirming the decision under review.
Counsel for the Applicant submitted that it is not only at the time of the reasons that one can infer whether or not the information alleged to enliven s.424A of the Act. In support of his submission, Mr Nair referred the Court to SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 where Gleeson CJ. Gummow, Callinan, Heydon and Crennan JJ said at [17] that the operation of s.424A(1) is to be determined in advance and independently of the Tribunal’s particular reasoning on the facts of the case.
Counsel for the Applicant referred to SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 (“SZLPJ”). In SZLPJ, Perram J at [16] held that the tribunal’s statement as to its present state of mind when it delivered its reasons was sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time. In SZLPJ, whilst the tribunal referred to information that had the potential to be adverse to the applicant, the tribunal stated that “the Tribunal has not in any way used this issue adversely to the applicants” (at [13]). Perram J stated at [16] as follows:
“[16] The Minister submitted that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 meant that the anterior time is not a single point in time, but in effect is all times which existed up until the moment of the Tribunal’s reasoning process. That may well be so. Ultimately the question is, what inferences can be drawn from the material which was available to the Tribunal. Here, it seems to me to be reasonable to draw the inference that the Tribunal did not at that earlier time or those earlier times, consider that the separate application would be the reason or a part of its reason for affirming the decision that is under review. That is, I accept that the statement about the Tribunal’s present state of mind made when it delivered its reasons is sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time.”
In SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 (“SZLJF”), Logan J cited Perram J’s comments at [16] in SZLPJ with approval. In SZLJF, the tribunal made a similar comment as in SZLPJ. It said that “the tribunal has not in any ways used this matter in an adverse manner to the applicant. The tribunal has assessed the applicant’s claims and evidence on their own merit”.
True it is in the case before this Court the Tribunal has not used such helpful and explicit words to support an inference that the information in the Letter was not part of its reasons for affirming the decision under review.
However, whilst I have serious doubts about whether the information in the Letter in fact had the potential to be adverse to the Applicant and undermine his claims, even if it were, a fair reading of the Tribunal’s decision record does not suggest that the Tribunal had regard to any of the information in the Letter, other than its assertion that the Applicant was employed by an electrical engineering company. However, in respect of that evidence, the Tribunal preferred the evidence of the Applicant that he had been employed as a mechanic/welder in China. In those circumstances, that information in the Letter cannot have been part the Tribunal’s reasons for affirming the decision under review.
Further, to the extent that the Letter stated that the Applicant’s employer was paying for his travel to Australia, a fair reading of the Tribunal’s decision record suggests that the Tribunal accepted the Applicant’s evidence that he had paid a very large sum of money to leave China. To that end, that information in the Letter that the electrical engineering company had paid for his letter was not part of the Tribunal’s reasons for affirming the decision under review.
Otherwise, there was no information in the Letter to which the Tribunal referred that was capable of undermining the Applicant’s claims to fear persecution in China by reason of being a Falun Gong practitioner.
In the circumstances, there was no information before the Tribunal that enlivened the obligations of s.424A(1) of the Act.
Accordingly, the grounds in the amended application are 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 the reasons it gave. 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 fifty three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 8 May 2009
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