SZNGN v Minister for Immigration

[2009] FMCA 1227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1227

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNGN”.

Migration Act 1958 (Cth), ss.424A, 425

Minister for Immigration & Multicultural Affairs v Legeng Jia [2001] HCA 17
Minister for Immigration, Local Government & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982
SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361
SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68
SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1

Applicant: SZNGN

First Respondent: MINSTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 424 of 2009

Judgment of: Lloyd-Jones FM

Hearing date: 14 August 2009

Delivered at: Sydney

Delivered on: 15 December 2009

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Ms N Johnson (solicitor)

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed on 23 February 2009 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 424 of 2009

SZNGN

Applicant

And

MINSTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is from Henan, the People’s Republic of China.  In amongst other jobs, he worked as a driver from 1999.  He fell ill while working at this job and was told he needed surgery on his back.  He refused the surgery and his mother introduced him to Falun Gong.  The applicant took up the practice and his condition improved.  He studied the practice with his regular group.

2. In 1999, he and a number of other practitioners were arrested while studying Falun Gong. They were kept overnight at a police station and lectured. The group was accused of opposing the Communist Party and disturbing social security and order. The applicant claims they were made to study anti-Falun Gong material and undertake to renounce their practice. The applicant says he did so because he was worried about his job and supporting his family. However after a few months his previous symptoms returned and he was unable to drive long distances for work. The applicant drove short trips and earned less money.  He decided to practice Falun Gong alone at home.

3. On 1 June 2004, the police went to the applicant’s home and arrested him, also seizing Falun Gong practice tapes and a copy of the Zhuan Falun. The applicant was interrogated and told to name fellow practitioners and any other offences he had committed.  He did not cooperate and was released a week later when his wife paid a bribe of 30,000RMB. The applicant decided to leave China and with the help of friends he obtained a visa to Australia. 

4. The applicant arrived in Australia on 20 July 2008 and applied to the Department of Immigration for a Protection (Class XA) visa on

   
   

   28 August 2008.  A delegate of the Minister refused to grant the visa on 13 October 2008 and the applicant was notified of the decision and his review rights by letter of the same date.  On 10 November 2008, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision.  On 4 February 2009, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.  It is the decision of Tribunal member Andrew Mullin in case number 0807547 which is under review by this Court.

5. A Court Book (“CB”) prepared and filed by the first respondent solicitors is marked Exhibit “A”.  This document is the only evidence before the Court.

6. The applicant filed his original application on 23 February 2009 which contained two un-particularised grounds of review:

   1. Since 1999, I felt ill.  My mother, an old Falun Gong practitioner advised me to practice of Falun Gong.  Through practice my condition has improved.  On 5 August 1999, when we studied Fa, we, about a dozen fellow practitioners were arrested by the police and looked up for the night.  On 1 June 2004, the police came to my home arrested me and seized Falun Gong practice tapes and a copy of ZHuan Falun.  My wife paid a bribe of RMB30.000 and I was released after one week.  All the facts were my experience.  But the Refugee Review Tribunal didn’t consider them and made a decision of affirming the decision of the Immigration Department.

   2. The Refugee Review Tribunal had bias against me and made jurisdictional error while making its decision.

7. At the first Court date, the applicant indicated that he wished to participate in the Court-sponsored Legal Advice Scheme.  This request was forwarded and a panel member allocated.  The applicant received written advice from the panel advisor and subsequently filed an amended application which contained one unparticularised ground:

   1. The Tribunal committed a jurisdiction error by failing to consider whether its adverse findings might be wrong (Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCR 220).  My case turned on whether I was a Falun Gong practitioner in China.  The Tribunal had some doubt about the truth of that claim and about my motives for being involved in Falun Gong activities in Australia and about my claim of paying Rmb 20,000 for my passport (CB97[44] & 101[52] & [54]).  It also had doubts about my claim to have been arrested twice in China (CB 1010[53]).  The Tribunal did not state that it had no real doubt that my claims were false.  The Tribunal had to consider what the position would be if its adverse findings were wrong and did not do so.

The Tribunal decision

1. On 30 December 2008, prior to the Tribunal hearing, the applicant provided a number of documents to it in the form of written statements that attest to the applicant’s Falun Gong practice at the Campsie practice site and his involvement in rallies in Australia against the Chinese Communist Party.  The applicant also provided a number of photographs which purported to depict him engaged in Falun Gong activities in Australia (CB 72-79).

2. The applicant attended a Tribunal hearing on 21 January 2009 and gave evidence elaborating on the claims outlined in his Protection visa application (CB 94 at [26]; CB 97 at [45]).  The applicant also gave evidence of his Falun Gong activities in Australia (CB 95 at [34] and CB 96 at [36]) and knowledge of Falun Gong (CB 96 at [37]-[38]).  The Tribunal questioned the applicant about his claim to have paid a “snakehead” for his passport and visa (CB 96 at [39]-[41]) and put to him inconsistent information contained in his business visa application, where he was described as a film director (CB 97 at [42]-[43]).  The Tribunal invited comment about his claim to have practised Falun Gong in China and the motives for his practice in Australia as well as concerns it had about his claim to have paid 20,000RMB for his passport (CB 97 at [44]-[47]).

3. In its decision the Tribunal rejected the applicant’s claim to have been a Falun Gong practitioner in China.  The Tribunal found the applicant’s account of his involvement was “generally brief and vague” and that his claim to have been arrested and detained lacked supporting detail and was “partly inconsistent” with independent country information (CB 101 at [53]).  The Tribunal also rejected his claim in respect of the amount paid for his passport and Australian visa.  The Tribunal noted that he had not claimed he was forced to pay this amount because of his arrest record or because he was wanted by police.  The applicant’s monthly income was only 1,000RMB (CB 102 at [55]).

4. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution in China because of his involvement in Falun Gong (CB 103 at [61]). Despite its doubts about the authenticity of the corroborative material, it accepted that the applicant had been involved in Falun Gong activities in Australia as he claimed (CB 102 at [58]-[59]). However in light of its findings that the applicant was never a Falun Gong practitioner in China, the Tribunal was not satisfied that his Falun Gong activities in Australia was undertaken for a reason other than to strengthen his claim to be a refugee. Pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Act”) the Tribunal disregarded the applicant’s conduct in Australia (CB 103 at [60]).

Consideration

1. Despite making orders requiring the applicant to file written submissions 14 days prior to the hearing, this was not complied with.  When the applicant was invited to make oral submissions in support of his application he made a brief statement indicating that the Tribunal’s decision was unfair but this was not developed or supported by any further statement or evidence.

2. The first ground of the applicant’s original application is nothing more than a brief statement of his claim and does not contain any reference or inference as to any ground of review.  The second ground is a unparticularised claim of bias on the part of the Tribunal.  It has not been supported by any form of evidence.  A party alleging actual bias on a decision maker’s part carries a heavy onus which must be clearly proved: Minister for Immigration & Multicultural Affairs v Legeng Jia [2001] HCA 17 at [69]. Existence of actual bias may be inferred from facts and circumstances but caution should be exercised in the absence of evidence of partisanship or hostility before inferring actual bias from factual errors or faulty reasoning on the part of a Tribunal member: SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361 at [44].

3. Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed to be incapable of alteration, whatever evidence or argument may be presented: Legeng Jia at [71]-[72].  No evidence or argument to establish this claim has been made.  On a fair reading of the Tribunal decision and in the absence of other evidence being made available to the Court, I am not satisfied that a claim of actual bias on the Tribunal member’s part can be sustained.

4. Alternatively if the applicant is attempting to claim apprehended bias, this will be established when a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, forms the view that the Tribunal member did not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 AlJR 982 at [27]. On the material before the Court which I have referred to above I am not satisfied that a claim of apprehended bias on the part of the Tribunal member can be sustained.

5. The amended application contains a single ground of review which claims that the Tribunal erred in failing to apply the “What if I am wrong” test in its assessment of the applicant’s claims and made reference to aspects of the Tribunal decision in support. 

6. The applicant claims that at the hearing the Tribunal put to him that it: “had some doubt about the truth of his claim to practise Falun Gong in China and the motives for his conduct of involving himself in Falun Gong in Australia” (CB 97) at [44]. The Tribunal in its Findings and Reasons used the terminology “some doubts” or “doubt” in the course of discussing:

   a)the applicant’s claim to be a Falun Gong practitioner in China (CB 101 at [52]);

   b)his being arrested on two occasions for his Falun Gong practice (CB 101 at [53]); and

   c)his having paid 20,000RMB for his passport (CB 101 at [54]).

7. This appears to be a misunderstanding of the language used.  The doubts that the Tribunal referred to in the context of these three issues are doubts it had about the applicant’s claims, not doubts it had about findings in relation to those claims.  They were doubts the Tribunal had about the credibility of the applicant’s claims that necessarily led to its ultimate conclusion of “having considered all the information before the Tribunal I am not satisfied that the applicant was a Falun Gong practitioner in China as he claims to have been, or that he had any significant involvement with the Falun Gong faith while he lived there” (CB 101 at [57]).  I agree with the submission that this finding is not prefaced by the word “doubt” or any uncertainty and cannot be described as anything other than emphatic.  As the Tribunal had no doubt as to the correctness of its findings that the applicant was not a Falun Gong practitioner in China, it was not bound to consider whether its findings may be wrong and ask itself the question “What if I am wrong”.

8. The Tribunal’s adverse credibility finding was a finding of fact open to it on the material before it.  Such factual matters are solely for the Tribunal to determine and do not come within the scope of the Court’s jurisdiction: Minister for Immigration, Local Government & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]. The original Application and Amended Application both failed to identify any jurisdictional error on the part of the Tribunal.

9. I acknowledge that the applicant is self-represented and unable to converse in English.  He has no understanding of the Court’s review function.  He has participated in the Court-sponsored advice scheme but was unable on his own election to attend a conference.  He was supplied with written advice.  Ms Johnson, appearing for the first respondent, brought the Court’s attention to the following issue which should be addressed although it was not raised as a ground of review.  There is no obligation on the Tribunal to put the information in the applicant’s business visa application (which states his occupation as a film director) to him for comment as it did not, in its terms, contain a “rejection, denial or undermining” of the applicant’s claim to be a person to whom Australia owes protection obligations: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [17].

10. This inconsistency was noted but the information was treated as neutral: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [26].

11. The inconsistencies did not attract the operation of s.424A(1) of the Act because they were not “information” for the purposes of that section, and the information contained in the business visa application did not enliven s.424A(1) because it cannot be considered “a part of the reason for affirming the decision that is under review”: SZBYR (supra) at [17]-[18]. Although there was no information before the Tribunal required to be put to the applicant for comment pursuant to s.424A, no error is revealed in the Tribunal’s cautious approach to using the language of s.424A in putting its doubts to him for comment: SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 at [30]. The Tribunal put these comments to the applicant at the hearing and so the applicant was on notice of the determinative issue on the review, namely the credibility of his claims and evidence. He was given the opportunity to address these concerns then. Accordingly no breach of s.425(1) of the Act is apparent: SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 at [42]-[44].

Conclusion

1. The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Mandarin interpreter.  I am satisfied that he has been provided with every opportunity available in the circumstances to present his review application.  However, it is clear that he has no understanding of the issues before the Court or how he may present his case.  The applicant appears to have relied upon an unidentified agent who was involved in the filing of many applications before this Court on behalf of Protection visa applicants. 

2. This places an obligation on the Court to independently consider whether any argument based on material, that is the Court Book and in particular the Tribunal decision, can support a claim for jurisdictional error.  I am satisfied that all the issues identified in the application have been satisfactorily addressed by Ms Johnson in her written and oral submissions.  On a fair reading of the Tribunal decision, it is not apparent that any other ground of review exists which would suggest the Tribunal made a jurisdictional error in its decision-making process.  Consequently the application should be dismissed.

3. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date:  15 December 2009