SZNFF v Minister for Immigration
[2009] FMCA 502
•27 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 502 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal complied with 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(1); 424A(1)(a); 424A(3)(b); 424A(3)(ba); 424AA; 474; pt.8 div.2 |
| SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 |
| Applicant: | SZNFF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 241 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 May 2009 |
| Date of last submission: | 21 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2009 |
REPRESENTATION
| Applicant appeared on her own behalf |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Mr B. O’Brien, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 241 of 2009
| SZNFF |
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 9 January 2009 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 10 July 2007 having departed legally from Baiyun airport on a passport issued in her own name and a Student Guardian (TU-580) visa issued on 14 June 2007.
On 29 July 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 8 October 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 30 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 9 January 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 2 February 2009, 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
In her protection visa application the Applicant claimed to be a Falun Gong practitioner and to have suffered persecution from Chinese authorities. She claimed she had been detained for 10 days where she “suffered badly”. The Applicant claimed the Chinese authorities would persecute her for her practice of Falun Gong in Australia.
The Delegate’s decision
On 16 September 2008, the Applicant attended an interview with the Delegate.
On 8 October 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 the Applicant’s claims to “lack credibility” and found the claims to be “fabricated”. The Tribunal found the Applicant’s claims to be “vague, lacking in specific details and unconvincing”. In particular, the Delegate noted that the Applicant was previously in Australia from 2 July 2006 for four months before returning to China without seeking protection. Further, the Tribunal noted that, when the Applicant returned to Australia 10 July 2007, she did not make an application for a protection visa until 29 July 2008, more than 12 months later and two days before her Student Guardian (TU-580) visa was about to expire.
The Delegate found that the Applicant does not have a genuine fear of harm and that there is not a real chance of the Applicant suffering persecution for a Convention reason if she were to return to China in the reasonably foreseeable future.
The Tribunal’s review and decision
On 30 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 24 November 2008, the Tribunal wrote to the Applicant informing her 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 8 January 2009 to give oral evidence and present arguments.
On 8 January 2009, the Applicant gave evidence at the hearing before the Tribunal at which the Applicant expanded upon her written claims. A witness who claimed to be a fellow Falun Gong practitioner in Australia also gave evidence before the Tribunal.
On 19 December 2008, the Applicant sent further documents to the Tribunal in support of her review application, including a document from Ms L from Surry Hills, New South Wales. That document stated that, in April 2008, the Applicant approached Ms L “unexpectedly” and asked her to teach the Applicant how to practice Falun Gong. Ms L’s document also stated that she took the Applicant to buy the book “Zhuan Falun”. Ms L also stated that the Applicant would go with her each Sunday to Darling Harbour in Sydney to take part in group Falun Gong practice and distribute a Falun Gong newspaper.
The Tribunal considered the information provided by the Applicant at her interview with the Delegate and explored her claims with her further at the hearing. The Tribunal put to the Applicant matters of concern that it had about her claims and noted her responses. The Tribunal also had regard to evidence given by a witness called by the Applicant, Mr Z. The Tribunal’s decision record stated that Mr Z gave evidence that he first met the Applicant in March 2008 when he began attending Falun Gong practice sessions at Darling Harbour. Mr Z told the Tribunal that the Applicant had told him she had been practicing Falun Gong for “quite a while”.
The Tribunal also identified country information to which it had regard in relation to the practice of Falun Gong in China and the attitude of the Chinese authorities to Falun Gong.
The Tribunal rejected the Applicant’s claims of ever having been a Falun Gong practitioner in China and that she was detained in China for reasons associated with Falun Gong. The Tribunal also rejected the Applicant’s claims that Chinese authorities had been harassing her daughter in China and visiting her home for reasons associated with Falun Gong.
The Tribunal found the Applicant’s claims to the Delegate to be inconsistent with her oral evidence to the Tribunal and inconsistent with the written statement of Ms L.
The Tribunal was not satisfied that the Applicant’s Falun Gong activities in Australia from March 2008 were engaged in otherwise than to strengthen her claims to be a refugee. The Tribunal stated that it disregarded that conduct in considering whether the Applicant has a well-founded fear of persecution in China for a Convention-related reason.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter.
On 4 March 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 she intended to rely was verified by affidavit.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Court also provided to the Applicant, headed in her own language, a contact list of providers of legal assistance and interpreting services. The Applicant has participated in the Court’s legal advice scheme.
At the commencement of the hearing, the Applicant confirmed that she had not filed any further application, evidence or submissions.
The grounds of the application filed on 2 February 2009 are as follows:
“1. The Tribunal found that s.91R(3) applied to the Applicant’s conduct in Australia. The Tribunal fell into jurisdictional error in making this finding.
2. The Tribunal failed to take into account or have regard to the applicant’s practice of Falun-Gong in Australia following her arrival in Australia. In the circumstances, the Tribunal fell into jurisdictional error.”
In her affidavit, filed in support of her application to this Court, the Applicant made the further allegation:
“The Tribunal member failed to give the Applicant in writing a letter to comment on the information orally after the hearing under the s424AA of the Migration Act”.
Each of the grounds and the allegation in her affidavit were 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 her application generally.
The Applicant declined to make any submissions in support of any of the grounds of her application or the allegation in her affidavit. The Applicant told the Court that the grounds had been written by a friend of her son’s, whose name she could not remember.
Ground 1 – s.91R(3)
Ground 1 makes the bare assertion that the Tribunal erred in finding that s.91R(3) applied to the Applicant’s conduct in Australia. Such assertion was not supported by particulars, evidence or submissions. The complaint makes no sense on its face and does not disclose an error capable of review by this Court. However, the Court has considered below whether the Tribunal complied with the requirements of s.91R(3) of the Act.
A fair reading of the Tribunal’s decision makes clear that the Tribunal accepted that the Applicant participated in Falun Gong practice sessions in Darling Harbour and in some demonstrations and other related activities in accordance with the Applicant’s evidence and that of her witness, Mr Z, and the written statement of Ms L.
The Tribunal then considered the Applicant’s purpose for that conduct. The Tribunal was not satisfied that the Applicant had been a Falun Gong practitioner in China or was involved in any Falun Gong related activities during her first visit to Australia in 2006, or for some nine months after arriving in Australia the second time. Having regard to those findings, the Tribunal was not satisfied that the Falun Gong activities engaged in by the Applicant from March 2008 onwards were otherwise than for strengthening her claims to be a refugee. The Tribunal then stated that it therefore disregarded that conduct in considering whether the Applicant has a well-founded fear of persecution in China.
That approach by the Tribunal to the Applicant’s claims of relevant conduct in Australia was consistent with the approach enunciated by the Full Court of the Federal Court of Australia in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (“SZJGV”). The Full Court made clear that, if an applicant claims that he engaged in conduct in Australia which caused the applicant to fear persecution if he were to return to his country of origin, the tribunal must decide whether or not that conduct occurred. If a tribunal finds that such conduct did occur, then s.91R(3) is engaged. The Full Court stated the following 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. If it has occurred then consideration must be given to the requirements of s 91R(3). We do not understand the appellants to contend otherwise. Their submissions do, however, overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account “at all” in deciding the application. As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account. Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision maker from having regard to “any conduct” engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s 91R(3).” [Emphasis added]
However, a fair reading of the Tribunal’s decision makes clear that the Tribunal identified four substantial reasons as to why it rejected the Applicant’s claims of having been a Falun Gong practitioner in China or having been detained by the Public Security Bureau because of a perception that she was a Falun Gong practitioner. The third of those reasons was based on the Applicant’s conduct in Australia in approaching Ms L to teach her Falun Gong. The Tribunal stated as follows:
“Thirdly, she claims that she had read the whole of Zhuan Falun, the key Falungong text, before her first visit to Australia, and that she continued to revisit it subsequently. That claim is not consistent with the evidence from Ms [L] in Surry Hills that it was only in April or May 2008 that [the Applicant] came to visit her “unexpectedly”, “asking me to teach her how to practice Falun Gong as she wanted to practice”. The author also wrote that she “took [the Applicant] to buy the book ‘Zhuan Falun’”. The two letters from this source clearly indicate to the Tribunal that the applicant presented herself to the author in 2008 as newly interested in Falungong, and not as a practitioner of long standing who was already highly familiar with Zhuan Falun. Similarly, the evidence of the witness was that he became aware of [the Applicant] as a practitioner in March 2008. There is no evidence at all that the applicant was a practitioner before early 2008, and the evidence from Ms [L] is compelling that [the Applicant] was not familiar with Falungong before that time. On that basis the Tribunal considers it highly implausible [the Applicant]’s claim that she was a practitioner in China or that she was detained for that reason.” [Emphasis added]
At first blush, it may appear that the conduct of the Applicant in approaching Ms L in Australia was conduct that engaged s.91R(3) of the Act. However, a careful analysis of the reasons of the Full Court of the Federal Court of Australia in SZJGV makes clear that the conduct that engages s.91R(3) must be conduct in Australia which would cause the Applicant to fear persecution if the Applicant was to return to China. A fair reading of the Applicant’s claims, both written and oral as reflected in the Court Book, marked Exhibit 1R, make clear that the conduct in Australia which may cause the Applicant to fear persecution if she returned to China would be her practice of Falun Gong, rather than her conduct in approaching Ms L in Australia to teach her about Falun Gong. In the circumstances, that conduct by the Applicant in Australia to which the Tribunal had regard in considering the Applicant’s claim of having been a Falun Gong practitioner in China was not conduct that engaged s.91R(3) of the Act.
In the circumstances the Tribunal was entitled to have regard to the evidence of the Applicant and Ms L, that in Australia, the Applicant asked Ms L to teach her how to practice Falun Gong in evaluating the Applicant’s claim of having been a Falun Gong practitioner in China. It was open to the Tribunal to find that evidence inconsistent with the Applicant’s claim of having been a Falun Gong practitioner in China, and for that inconsistency to contribute to the Tribunal’s adverse credibility findings in respect of the Applicant.
In the circumstances, 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 Court (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, the Tribunal complied with the requirements of s.91R(3) and Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to have regard to the Applicant’s practice of Falun Gong in Australia and therefore “fell into jurisdictional error”. Again, such an assertion was not supported by particulars, evidence or submissions. Ground 2 is substantially addressed in Ground 1.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accepted that the Applicant practiced of Falun Gong in Australia. However, as referred to above in these reasons in consideration of Ground 1, s.91R(3) was engaged by that finding of the Tribunal. Accordingly, the Tribunal was obliged to consider the Applicant’s purpose in engaging in that conduct. This the Tribunal did.
However, unless the Tribunal was satisfied that the Applicant engaged in such conduct otherwise than for strengthening her refugee claims, s.91R(3) obliges the Tribunal to disregard that 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 considered the purpose for the Applicant’s conduct in Australia. However, the Tribunal did not find the Applicant to be a witness of truth. Further, in making its finding about the Applicant’s purpose for engaging in Falun Gong practice and activities in Australia, the Tribunal had regard, inter alia, to the fact that the Applicant had first visited Australia in 2006 for four months before returning to China, during which time she was not involved in any Falun Gong activities in Australia. In the circumstances, the Tribunal was not satisfied that the Applicant engaged in the relevant conduct in Australia other than for the purpose of strengthening her refugee claims. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
Having not been so satisfied, in accordance with s.91R(3) of the Act the Tribunal disregarded that conduct in considering whether the Applicant has a well founded fear of persecution in China.
Accordingly, the Applicant’s allegation that the Tribunal erred in failing to take into account or have regard to her practice of Falun Gong in Australia is not made out.
Applicant’s further complaint in affidavit – s.424AA of the Act
The Applicant’s complaint in her affidavit that the Tribunal failed to comply with s.424AA of the Act, because it failed to give her in writing a letter for comment on “the information orally after the hearing”, is not made out.
I accept the submission of counsel for the First Respondent that the Applicant’s complaint in relation to s.424AA is misconceived in that s.424AA does not impose any obligation on the Tribunal to write to the Applicant identifying information that may be part of the reason for affirming the decision under review and inviting comment.
If the Applicant was intending to allege a failure to comply with s.424A of the Act, there was no information to which the Tribunal had regard that enlivened the obligations of s.424A(1) of the Act. The reasons why the Tribunal affirmed the decision under review were based solely on material and evidence provided by the Applicant for the purposes of her review. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) and s.424A(3)(ba) of the Act.
To the extent that the Tribunal had regard to inconsistencies in the Applicant’s evidence, such inconsistencies are no more than the Tribunal’s thought processes which are not information within the meaning of s.424A(1)(a) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [18]).
Conclusion
A fair reading of the Tribunal’s decision record 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 her evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. 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 record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
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-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 27 May 2009
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