SZNEV v Minister for Immigration
[2009] FMCA 384
•17 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNEV v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 384 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – breaches of ss.91R, 424A and 425 not proved – Court cannot conduct a review of the merits of the visa application. |
| Migration Act 1958, ss.91R, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451 SZHFE v Minister for Immigration & Citizenship [2006] FCA 648 SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211 |
| Applicant: | SZNEV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 201 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 April 2009 |
| Date of Last Submission: | 17 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 201 of 2009
| SZNEV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a Falun Gong practitioner. She alleges that while in China she practised in secret at a neighbour’s house and that this subsequently led to an arrest warrant being issued for her.
She claims to fear persecution in China because of her association with Falun Gong.
After her arrival in Australia on 27 June 2005, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 3 October 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 92 – 100). I now set out relevant factual allegations.
In a statement attached to her protection visa application, the applicant claimed that:
a)in 2004, she was introduced to Falun Gong by the aunt of her neighbour Ms Wang, who came from Gaoxiong City in Taiwan;
b)she attended her neighbour’s home in secret for five days to learn Falun Gong and after the aunt left, she practised by watching a demonstration CD;
c)by August 2004, the applicant no longer experienced stomach trouble although her husband was still sceptical about the effects of Falun Gong;
d)since her arrival in Australia she has continued to practise alone outdoors in the evening;
e)one day while visiting Chinatown she met many Falun Gong practitioners in a street parade. Her husband told her that there are Chinese agents who collect information about the practitioners’ activities and that the practitioners would be persecuted if they returned to China. He told her that she should not be involved in these activities or her family members in China would be in trouble and they would not be able to return to China. As a result, she only did her practice at home;
f)on 21 June 2008 the applicant spoke by telephone with her mother who told her that the authorities discovered that Ms Wang was a Falun Gong practitioner. Under torture from the local police, Ms Wang confessed she and the applicant were taught Falun Gong by Ms Wang’s aunt. Ms Wang was beaten and fined 10,000 Yuan. The applicant’s mother told the applicant that if she returned she would certainly encounter trouble from the local police; and
g)a friend of her husband said she could explain this to the Australian government to ask for protection to stay in Australia.
The applicant provided eight photographs in support of her application in which persons, including the applicant, were depicted practising Falun Gong, holding banners and attending a demonstration in Australia.
The applicant attended an interview with the minister’s department on 11 September 2008 and made the following additional claims:
a)her son went to Italy three years ago and remains there in hiding;
b)the police have been asking her parents where the applicant is because she was practising Falun Gong. She has had contact with her parents and they have not been arrested;
c)she was unable to provide more information about the philosophy of Falun Gong other than that she could do the exercises. She did not know anything about Master Li’s teachings;
d)since coming to Australia she practises in the morning and in the evening and has a recording she can use to help her movements. Her understanding of Falun Gong is that it is good for her health and made her feel better;
e)she came to Australia because the situation was becoming quite intense for Falun Gong practitioners and she was afraid she would be arrested;
f)she did not apply for protection promptly upon her arrival in Australia because at that time she was pretty healthy. The applicant’s husband stated that the police could not arrest them when they were in Australia. However, when Ms Wang was arrested they decided to apply for protection; and
g)because she is in Australia she was unable to provide any independent evidence other than her mother’s verbal report that Ms Wang had been arrested.
In her application for review of the delegate’s decision, the applicant provided the following documents:
a)a statement dated 18 April 2008 from Mei Lian Wang describing the applicant’s Falun Gong practice with a copy of her identity card attached;
b)a Public Security Bureau (“PSB”) arrest warrant and notice that the applicant be detained, dated 3 July 2008 and 20 June 2008 respectively;
c)an arrest warrant for Ms Wang headed PSB and dated 16 June 2008;
d)a document containing the details of six persons who can confirm the applicant is a fellow Falun Gong practitioner;
e)an undated photocopy of four photographs of the applicant and others practising Falun Gong; and
f)three letters from named persons describing the applicant’s participation in Falun Gong activities in Australia.
The applicant appeared before the Tribunal on 9 December 2008 to give evidence and present arguments. She made the following additional claims:
a)she went to Indonesia in 2002 to visit a special doctor who could treat her medical condition, stomach discomfort and dizziness, but she did not receive a positive result. She also said that she no longer suffers from these conditions because of her Falun Gong practice;
b)the PSB went to her parents’ home on 3 July 2008 looking for the applicant and conducted a search. They returned a few days later, told her parents that there would repercussions if they did not hand her over and insisted they pay money. They pushed the applicant’s father and he was taken to hospital;
c)in late September or early October 2008 the applicant’s mother told the applicant about the documents, which the applicant subsequently provided to the Tribunal, and forwarded them to her in Australia. The applicant also said that her mother did not tell her about the documents before that because she did not want to worry her;
d)before the end of 2007 she did not realise that she could practise Falun Gong in public in Australia. She joined a practice site in Campsie at the end of June or July 2008 and she attends morning sessions and also Thursday night study sessions. On Saturday and Sundays she sometimes goes to Burwood; and
e)when the Tribunal asked her how she was able to obtain the statement from Ms Wang, the applicant replied that she phoned her mother in October or November 2008. Her mother checked with Ms Wang’s family who said that Ms Wang’s husband had found a statement written for the applicant in a drawer.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although the Tribunal accepted that the applicant became involved with Falun Gong practitioners in Australia in about July 2008, it found that the applicant was not a credible or reliable witness on some key aspects of her claims, noting that:
i)the applicant claimed she became a Falun Gong practitioner in 2005 and had to practise in secret in China, however, she did not approach other Falun Gong practitioners in Australia until approximately 3 years after her arrival here. The Tribunal noted that genuine and sincere Falun Gong practitioners contact other practitioners in Australia almost immediately upon their arrival and become involved in practice sites and activities and it did not accept her explanation that she did not know that she could practise publicly in Australia;
ii)the Tribunal found that it was unlikely that the applicant’s daughter, who had been in Australia for many years, would not have been aware of the public practice of Falun Gong in Australia;
iii)during her interview with the delegate on 11 September 2008 the applicant said she could not provide any independent evidence relating to Ms Wang’s arrest, however, in her application for review of the delegate’s decision she provided documents purporting to be an arrest warrant and PSB notice relating to her and a PSB arrest warrant pertaining to Ms Wang dated in June 2008. The Tribunal was not satisfied that these documents were genuine, that the applicant is wanted by Chinese authorities or that Ms Wang was detained in China. The Tribunal found that these documents were provided to strengthen the applicant’s claim to be a refugee;
iv)the applicant stated in her protection visa application that her mother had told her that Ms Wang had confessed that her aunt had taught her and the applicant Falun Gong practice and that the applicant would encounter trouble from the local police if she returned. However, at the Tribunal hearing the applicant said her mother did not tell her anything about the applicant’s troubles;
v)the Tribunal noted the witness statement purportedly from Ms Wang dated 18 April 2008 but accorded it no weight, finding it unconvincing that a person would prepare such a statement out of the blue in anticipation that it might be needed at some future time. The Tribunal found that the statement was prepared to attempt to strengthen the applicant’s case before it; and
vi)the applicant claimed that she and her husband travelled to Australia in 2005 because of her involvement in Falun Gong but did not apply for a protection visa until three years later because they knew nothing about refugee applications. The Tribunal was not satisfied that the applicants were not aware that they could lodge a protection visa application;
b)in light of these matters, the Tribunal did not accept that the applicant was a Falun Gong practitioner in China, that she is a Falun Gong practitioner in Australia, that Ms Wang was arrested and detained, that the authorities seek to detain or arrest the applicant or that they attended her parents’ home enquiring as to her whereabouts;
c)the Tribunal disregarded the applicant’s practice of Falun Gong in Australia on the basis that it was not satisfied that she had engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee; and
d)given the credibility problems with the applicant’s evidence, the Tribunal did not give any weight to the statements and photographs provided in support of her application.
Proceedings in this Court
The grounds of the application commencing these proceedings contained two grounds and were pleaded as follows:
(a)The Tribunal made jurisdictional errors when considered my application for a protection visa. the [sic] Tribunal failed to consider my application according to S91R of the Migration Act 1958.
(b)The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the seasons [sic] for affirming the decision. I am not given an opportunity to explain my case.
Today in submissions the applicant also alleged that the Tribunal had been unfair.
Breach of s.91R
The allegation that the Tribunal breached s.91R of the Act is unparticularised and thus lacks substance. Even so, it is appropriate in circumstances where the applicant is unrepresented that the Court considers what issues this allegation raises.
First, subss.(1) and (2) of s.91R direct how, in certain respects, the Convention is to be applied for the purposes of Australian domestic law. In particular, s.91R(1) provides that the Convention does not apply in relation to persecution for one or more of the reasons mentioned in Art.1A(2) of the Convention unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
Section 91R(2) gives examples of instances of “serious harm”.
Paragraphs 12, 14 and 16 of the Tribunal’s decision disclose that the Tribunal was aware of the contents of s.91R(1) and (2) and so it cannot be said that the Tribunal was unaware of the proper test to apply. However, the Tribunal was not required to consider such matters. In this case, the applicant’s factual allegations were rejected by the Tribunal on the basis that they were not credible. Having not accepted what the applicant said had happened in China or what she said she feared would happen were she to return, it was not called upon to apply the Convention test as modified by s.91R(1) and (2).
Also raised by the first allegation in the application is the issue of whether the Tribunal complied with s.91R(3) in that, having decided it was not satisfied that the applicant’s Falun Gong practice in Australia was undertaken otherwise than for the purpose strengthening her claim to be a refugee, it disregarded that conduct for all purposes: SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451. A review of the Tribunal’s decision, discloses that it did not have regard to that conduct contrary to the requirements of s.91R(3).
Although the Tribunal did make reference in its reasons to the applicant’s delay in seeking out Falun Gong practitioners following her arrival in Australia, it is questionable whether this amounts to a reliance on the applicant’s conduct in practising Falun Gong in Australia. However, if it is, I accept the first respondent’s submission that this delay was not advanced by the applicant in support of her claim and thus does not fall within the scope of s.91R(3): SZHFE v Minister for Immigration & Citizenship [2006] FCA 648 and SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211.
Consequently the first ground set out in the application commencing these proceedings is not made out.
Breach of s.424A
It is to be noted that in the second ground pleaded in the application the applicant alleges that the Tribunal failed to notify her of the reason or part of the reasons for affirming the decision. The section does not require that such matters be notified to an applicant. What s.424A(1) requires is that:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
However, such conclusions as the Tribunal drew from the information before it were not “information” as that word is understood by s.424A and were thus not required to be notified to the applicant pursuant to that section.
More generally in relation to s.424A, in this case the information relied upon by the Tribunal when reaching its decision was information provided by the applicant to the Tribunal for the purpose of her application for review, information provided in writing to the minister’s department, country information and other information held by the Tribunal as a result of its experience of considering claims by persons claiming to fear persecution in China because of their adherence to Falun Gong. Such information is of a class governed by s.424A(3) and thus falls within the exceptions to the operation of s.424A(1). This has the result that the Tribunal was under no s.424A(1) obligation to notify it to the applicant.
Fairness
In submitting that the Tribunal was not fair, the applicant pressed her allegation that she is a genuine Falun Gong practitioner and truly fears persecution should she return to China. However, this allegation is no more than an invitation to the Court to reconsider the Tribunal’s conclusions on the factual allegations advanced by the applicant at the Tribunal hearing and the Tribunal’s conclusions as to the merits of the applicant’s review application.
The Tribunal’s findings of fact in this matter cannot be reviewed by the Court in these judicial review proceedings. Decisions on matters of fact are reserved for the Tribunal, most particularly on questions of credibility which was the point on which this case turned. The Court’s role is to supervise the conduct of the Tribunal’s procedures and to ensure that the Tribunal conducts its hearing and reaches its decision in accordance with law. Its role is not to conduct a second hearing of the applicant’s application for a protection visa.
The applicant also submitted that at its hearing the Tribunal talked and talked and she could not say very much. This allegation is not borne out by the only relevant evidence before the Court which is the Tribunal’s decision record found in the Court Book, Exhibit A. It should also be observed that at para.61 of the Tribunal’s decision it is recorded that the Tribunal asked the applicant if she wished to say anything further. It is there recorded that she made certain additional comments.
Had the applicant wished to press this point it was open to her to have put before the Court a transcript of the Tribunal hearing to demonstrate that she had been denied her rights under s.425 to have a proper and meaningful Tribunal hearing. There being no evidence of that sort and the Tribunal’s decision giving no indication that the applicant was denied an opportunity to make her case or to put before the Tribunal such evidence and arguments as she wished it to have I cannot conclude that this allegation is made out.
Conclusion
For these reasons, I conclude that jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 28 April 2009
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