SZNEE v Minister for Immigration
[2009] FMCA 354
•23 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNEE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 354 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal not required to uncritically accept applicant’s claims – findings open to Tribunal on what was before it – applicant seeking impermissible merits review – choice and interpretation of country information for Tribunal – no obligation on Tribunal to seek additional information or make further enquiries – no failure to comply with s.424A – Tribunal made factual finding that conduct in Australia had not occurred – s.91R(3) not engaged – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 36(2), 424, 427, 420, 422B, 424A, 91R(3) |
| SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 |
| Applicant: | SZNEE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 125 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 April 2009 |
| Date of Last Submission: | 23 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Appearing for the Respondents: | Ms E Warner-Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 20 January 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 125 of 2009
| SZNEE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application made on 20 January 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 December 2008, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
Background
The respondent has filed a bundle of documents in this matter (“Court Book – “CB”) from which the following background may be discerned.
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 16 June 2008 and applied for a protection visa on 25 June 2008 (application with annexures reproduced at CB 1 to CB 30). The Minister’s delegate refused this application on 9 August 2008 (decision record reproduced at CB 40 to CB 45). The applicant applied for review to the Tribunal on 8 September 2008 (application for review reproduced at CB 46 to CB 49).
Claims to protection
The applicant claimed to fear persecution in China on the grounds of her practise of Falun Gong and her having hosted Falun Gong activities at her home, Falun Gong being a practice banned by the Chinese authorities. She claimed to have been “harassed” by the police.
Specifically, she claimed that she was forced to go to “study sessions” at the police station, that she was required to report to the police station daily, that the police threatened to detain her if she continued the practice, that the police had talked to her husband, and that the police continue to “upset her family”.
The applicant also claimed to fear people in the community who “looked at her in a different manner”, presumably after her practice of Falun Gong came to the attention of the authorities. She claimed that certain people attended at her place of work to “investigate and harass her,” and that employers “harassed and dismissed” her from her employment. She claimed that her daughter had a difficult time at school because of the police interest in her.
The delegate
The applicant was invited to attend an interview with the Minister’s delegate (CB 34). She did not attend. No explanation was given (CB 44.4).
In the relevant decision record, the delegate noted that the applicant’s claims were “very vague, unsubstantiated and general” (CB 44.8). From the delegate’s decision record, it appears that the delegate was unable to test her claims or to obtain details due to the fact that the applicant did not attend the hearing. In these circumstances, he was unable to reach the requisite level of satisfaction such that the protection visa must be granted. The application was therefore refused (CB 45).
The Tribunal
When the matter came before the Tribunal, it wrote to the applicant at the address for correspondence which she had provided to the Tribunal. This was by letters dated 9 September 2008 (CB 50) and 12 November 2008 (CB 58 to CB 59). Importantly, in addition to inviting her to a hearing, both these documents invited her to submit any information or other documents that she wanted the Tribunal to consider (CB 71).
While the first letter appears to have been returned to the Tribunal as unclaimed, there is nothing before the Court to show that the same occurred in relation to the second letter. No response was received by the Tribunal in relation to that second letter (CB 70.8 and CB 71.1).
But, in any event, the applicant did appear at a hearing before the Tribunal on 16 December 2008, where she gave evidence and presented arguments with the assistance of an interpreter in the Mandarin language.
The Tribunal’s decision record (which is before the Court by way of attachment to the applicant’s affidavit made 19 January 2009, and filed on 20 January 2009 together with the application, and by way of the bundle of relevant documents filed by the respondent) contains an account of what occurred at the hearing (at CB 71 to CB 74 and CB 76 to CB 77). It is the only account available to the Court. Despite being given the opportunity at the first Court date, the applicant has not provided any transcript of the Tribunal hearing.
Tribunal’s findings
It is plain from the Tribunal’s analysis that it found that the applicant was not “a witness of credit”, and was not a “truthful witness”. It found her evidence to be variously “inconsistent”, “confused” and “unsubstantiated” (CB 76.5). It gave reasons for these findings. It also found her knowledge of the principles and meaning of Falun Gong and “her inability to discuss Master Li’s [the founder of Falun Gong] book to any level to be highly inconsistent with her claim to have practised Falun Gong since 1997” (CB 77.7).
It rejected her claim to have ever been a Falun Gong practitioner or to have ever been seen as having been one (CB 77.8).
Flowing from these findings, it did not accept that the applicant was “harassed, forced into daily study groups and constantly monitored” by the police or that she was photographed by the Chinese authorities or those working for the Chinese authorities (CB 77.9).
Based on its finding that the applicant’s claims and evidence lacked credibility and that she had never been a Falun Gong practitioner, it also did not accept her explanation for having been able to depart China without difficulty. Namely, that she agreed with the authorities not to practise Falun Gong (CB 78.1), or that she bribed someone to arrange for her passport (CB 78.2).
It also found that the applicant did not “observe” Falun Gong activities while in Australia (CB 77.6).
Application to the Court
The application to the Court, as I indicated to the applicant, is somewhat deficient as to particulars. The applicant put forward two grounds in her application:
“1. The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal made error in this finding.
2. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry ourt [sic – “out”] its statutory duty.”
The Court also has before it the applicant’s affidavit of 19 January 2009, in which the applicant also asserts:
“1. I was denied procedural fairness in connection with the making of the decision …”
There is a second ground in the affidavit, which replicates ground one to the application.
In written submissions, the applicant also sets out a number of matters. Although some aspects are not clear, it appears that she also complains that:
1)The Tribunal failed to consider whether she would continue to practice Falun Gong on return to China and whether, in these circumstances, there was a real chance that she would be persecuted.
2)The Tribunal did not act fairly, pursuant to s.420 of the Act.
The Court also has the Minister’s formal Response and written submissions. These did not address the applicant’s submissions, which were filed later, and not in accordance with orders made at the first Court date. [No objection was taken, however.]
Hearing before the Court
At the hearing before the Court, the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms E Warner Knight appeared for the first respondent.
When provided with the opportunity at the hearing to make submissions, the applicant stated that she had nothing further to say.
I understood this to mean that she was content to rely on the written documents put before the Court.
Given what appeared to be the very general and unparticularised grounds in the application, I confirmed with the applicant that she had had the benefit of legal advice from a lawyer on the panel of the Court’s legal advice scheme.
Following an explanation of the distinction between the role of the Tribunal and the role of the Court, and the necessity of finding a jurisdictional error in the Tribunal’s decision (at least) in order for the applicant to be successful before the Court, the applicant responded by stating that she was not able to return to China and that she had been advised by her family that the PSB (which I understand to mean the Public Security Bureau in China) was “looking for her”, and that that her family had been given some sort of “summons”.
Consideration
Ground one
Turning first to the matters stated in the application to the Court. The first ground in the application asserts that the Tribunal was not satisfied that the applicant fell within the definition of “refugee” as it is understood in the Refugees Convention, and that the Tribunal made error in this finding. I understood this to mean that the Tribunal was wrong in making this finding. If the applicant sought to say that the Tribunal was wrong in the way that it went about making its finding, then no particulars or details have been provided to support that allegation.
The relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” as set out in the UN Refugees Convention. In these circumstances (that is, if the Tribunal reaches that level of satisfaction), a protection visa must be granted.
The legislative regime to which I refer requires a positive state of satisfaction as to whether Australia has protection obligations to the applicant, and mandates a refusal decision if that state of satisfaction is not reached. (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] – [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] – [5], Minister for Immigration andMulticultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In performing this task, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims or evidence. I note, in this regard, what was said by the Federal Court in Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
It is very plain in the current case that the Tribunal clearly did not consider the applicant to be a witness of truth, and rejected the very foundation upon which the applicant’s claims were based. That is, that she was a Falun Gong practitioner or was perceived as such. These findings, and other relevant findings, were open to the Tribunal on what was before it, and for which it gave reasons (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (see particularly at 558 to 59), W148/00A v Minister forImmigration and Multicultural Affairs (2001) 185 ACR 703 at [64] to [69] per Tamberlin and RD Nicholson JJ).
In these circumstances, a finding of adverse credibility is a finding of fact within jurisdiction and is for the Tribunal to make as the finder of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J).
Given what is plainly to be read in the Tribunal’s decision record and, indeed, in the absence of any particularity, this ground does not rise above a request for the Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).
Ground two
In the second ground to the application, the applicant asserts that the Tribunal did not “refer to any independent information”. This, with regard to the Tribunal’s decision record and the material in the Court Book, is factually incorrect. The Tribunal specifically stated in its decision record that it: “had regard to … other material available to it” (CB 70.3) and that it provided extracts of material under the heading “Independent Country Information” in relation to “Passport procedures” and “Exit procedures”. (CB 74 to CB 76.3).
There is nothing before the Court to show that the applicant submitted to the Tribunal any “independent information”, if what is meant by the term is something other than independent country information. I note that the applicant was put on notice by the Tribunal’s letters (CB 55, CB 56, CB 58 and CB 59) of the opportunity for doing so. Nor can I see in the material before me that the applicant asked the Tribunal to look at any other material.
If, by the use of the word, “refer” the applicant is asserting that the Tribunal did not consider other information that would have been beneficial to the applicant, I note that the choice and interpretation of country information is a factual matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] – [13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) at [81] – [84]).
If the applicant’s complaint is that the Tribunal should have sought out further, or additional, information, and that its failure to do so was a failure to carry out its statutory duty, then I note that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule. In short, and for the applicant’s benefit, the procedures that the Tribunal is required to employ, its obligations in terms of procedural fairness, are set out exhaustively in that part of the Act.
In particular, s.424 of the Act does not impose, or mandate, an obligation on the Tribunal to seek further information. Nor, for that matter, is it obligatory for it to make any further investigation pursuant to s.427.
In this regard, while it may be said that there is a duty to enquire in some circumstances (see, for example, W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432), in the absence of any such particular reason, as in this case, there is no general obligation for the Tribunal to make further enquiries (see, for example, VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27], WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [24]–[25], and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300 at [18]–[21]).
In all, therefore, this ground does not succeed.
Failure to consider future chance of harm
Amongst other things, the applicant complains in written submissions that the Tribunal did not consider whether she would continue to practice Falun Gong if she were to return to China and whether, as a result, she would face persecution.
Unfortunately for the applicant, this complaint is factually incorrect and, in my view, misconceived. It ignores the very clear finding made by the Tribunal that the applicant was not a Falun Gong practitioner in the past or at the time of the making its decision. In a very real sense, the Tribunal did not need to consider whether the applicant would “continue” to practice Falun Gong in China. It found that she had never engaged in any such practice, which (as I have already said) was a finding open to it on what was before it and is therefore not susceptible to review on its merits.
In these circumstances, it was plainly open to the Tribunal to find:
“Nor does the Tribunal accept that if the applicant returns to China now or in the reasonably foreseeable future, there is a real chance …” (see CB 78.5).
In short, the Tribunal did consider the applicant’s situation if she were to return to China. This complaint does not succeed.
Tribunal did not act fairly
In written submissions, the applicant also complains that the Tribunal did not act fairly pursuant to s.420 of the Act.
Again, without particulars or any real explanation, it is difficult to see exactly what it is that the applicant seeks to challenge.
If this is some complaint about a lack of procedural fairness, then I note again that this case is one to which s.422B of the Act applies, making the provisions of Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]- [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35). That is, the principles of procedural fairness that are to be applied in the applicant’s case.
Having regard to the various relevant provisions in that part of the Act, first, I cannot see that the Tribunal breached the obligations set out in s.424A(1).
The independent country information to which the Tribunal referred fell within the exception in s.424A(3)(a) from the obligation in s.424A(1) (VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264, QAAC v Refugee Review Tribunal [2005] FCAFC 92).
Second, The applicant’s evidence to the Tribunal falls within the exception in s.424A(3)(b).
Third, information contained in the protection visa application to which the Tribunal referred comes within the exception contained within s.424A(3)(ba) (SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751, SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693).
Further, inconsistencies in the applicant’s claims, and evidence, and any adverse views taken of the inconsistencies are not “information” for the purposes of s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]).
Nor can I see error, with regard to s.425 of the Act. The applicant was invited to a hearing before the Tribunal. I note that by letter dated 1 October 2008 the applicant was invited to a hearing to be held on 10 November 2008, on that date, the hearing was postponed at the initiative of the Tribunal.
However, the Tribunal sent a second letter dated 12 November 2008 to the applicant in relation to a rescheduled hearing date of 16 December 2008. The applicant attended on that date. This letter, in itself, complied with all the relevant statutory requirements for the provision of the invitation, the giving of notice, and relevant notice periods. I have in mind ss.425, 425A, 441A(4)(c), reg.4.35D(b). There was also the statement of the matter as set out in s.426A (see CB 58).
I cannot see that any other part of the procedural code was breached.
If the applicant is also seeking to complain that the Tribunal’s decision itself is not “fair”, again the applicant does not particularise why this is the case. If it is that she is simply aggrieved by the outcome then this amounts to a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
This Court does not have jurisdiction to determine whether the Tribunal’s decision (in the sense of the decision as the outcome of the process of the review) was “fair”. The Tribunal is required to provide fairness in the procedures that it employs and applies (see further below). But as to the outcome, it is as the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25] that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 per Brennan J).
As I have already stated, on what is before the Court, the Tribunal’s findings were findings of fact made within jurisdiction. This Court is unable to intervene, or for that matter, in any event, to see error in how the Tribunal has fulfilled its task.
I note that s.420(1) of the Act provides the following:
“The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
This must obviously be read in context of what I have already said previously about the Tribunal’s obligation to act fairly.
“Reasonable notice issue”
I note that in the applicant’s written submissions, there appears the title: “Reasonable notice issue”. What follows under that heading does not appear to explain what is meant by “reasonable notice”, nor how it is an issue in this case.
But if what is meant is that somehow the Tribunal should have put the applicant on notice as to the adverse view that it took of her evidence, then this is not a matter on which the applicant can seek to draw any reliance on s.420. Procedural fairness, as explained by the High Court in SZBEL in the context of s.425, requires the Tribunal to put the applicant on notice at the hearing of the issues that are determinative, or dispositive, of the review. That is, any such issues that do not arise as a result of the delegate’s decision.
As I have already stated, the only account of what occurred at the hearing is that provided in the Tribunal’s decision record. It is clear from that account that the applicant was given the opportunity to set out the factual basis of her claim. Clearly and relevantly, the Tribunal reports that it put to the applicant, and gave the applicant an opportunity to comment on, the inconsistencies and issues about which it was concerned (CB 73.4).
Further, the Tribunal put to the applicant the inconsistency between her evidence and the independent country information before it. Information that indicated that if she were of interest to the authorities, she would have had some difficulty in obtaining travel documents in her name and leaving the country on those documents. The Tribunal then reports that it asked for comment on the inconsistent evidence, and further pointed out to the applicant that she had claimed to have been harassed, fingerprinted, and forced to report daily to the local police from 1997 to 2008, and yet had travelled freely.
Then the Tribunal reports further that it explained its concern with the inconsistencies in the applicant’s oral evidence (CB 73.5 to CB 74.3).
The applicant would have had more than “reasonable notice” from the Tribunal as to the concerns that it had with the credibility of her evidence and her account. The Tribunal’s decision may indeed have not been in the applicant’s best interests, as is asserted in the submissions, but unfortunately for the applicant, the Tribunal’s obligation is not necessarily to act in the best interests of the applicant, however that may be expressed. The Tribunal’s obligation is to find that it either reaches, or does not reach, the requisite level of satisfaction such that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention.
Section 91R(3)
Given that the applicant was unrepresented before the Court, I did consider whether there may be jurisdictional error in the decision of the Tribunal for some other reason than the grounds contained in the applicant’s application or the complaints in the affidavit and submissions. In particular, given that the applicant had claimed to have engaged in certain conduct in Australia, I considered whether the Tribunal complied with what is required in s.91R(3).
In this regard, at CB 77.8, the Tribunal discussed the applicant’s lack of knowledge of Falun Gong. It further states:
“The applicant stated that she had not attended Falun Gong in Australia as she had no income. The applicant stated she had only observed Falun Gong. The Tribunal has already found the applicant is not a witness of credit therefore the Tribunal does not accept that the applicant observed Falun Gong activities.”
I note what was said in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [22]:
“We accept the Minister’s submission that s 91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application.”
In this case, the Tribunal has made a factual finding that the claimed conduct, that is, that the applicant had observed Falun Gong activities while in Australia, had not in fact occurred. This was open to it on what was before it. Accordingly, s.91R(3) was not engaged.
Conclusion
For the applicant to succeed before the Court, there would have to be jurisdictional error in the Tribunal’s decision. As I cannot find jurisdictional error on what is put forward by the applicant, nor otherwise, this application is dismissed.
Costs
The Minister presses costs. It is appropriate that a costs order be made. There is nothing before the Court, nor has the applicant been able to put anything before the Court, to argue against the making of such an order in the normal course of events. I will make the order.
As to the amount, I note that in the relevant Schedule to the Rules of this Court, an amount of up to $5,865 could have been sought in matters of this type. The Minister seeks an amount of $3,800. I am satisfied, bearing in mind the work that has been done by the Minister’s legal representatives in responding to the application, that in these circumstances, the amount is reasonable.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 26 April 2009
0
29
1