SZNGS v Minister for Immigration
[2009] FMCA 438
•8 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNGS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 438 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal complied with s.91R 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; 474; pt.8 div.2 |
| SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Refugee Review Tribunal Re: Ex parte H (2001) 75 ALJR 982 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 |
| Applicant: | SZNGS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 436 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 May 2009 |
| Date of last submission: | 8 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Mr G. Cooper, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 436 of 2009
| SZNGS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 28 January 2009 and handed down on 29 January 2009.
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 July 2008 having departed legally from Shanghai on a passport issued in his own name and a subclass 456 visa issued on 8 July 2008.
On 8 August 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 30 September 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 28 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 29 January 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 25 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
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution from authorities in China by reason of being a Falun Gong practitioner since 1998. The Applicant claimed that he commenced delivering materials in support of Falun Gong in September 2007, however, was arrested on 28 September 2007 and detained for half a month. The Applicant claimed that during his detention he was beaten, interrogated and mistreated and that his family paid a fine of 10,000 yuan to secure his release. Following his release, the Applicant claimed that he was under supervision and required to report to the police station and his employment contract was terminated. The Applicant claimed that in 2007 an agent assisted him to leave China for Australia in order to escape persecution.
The Delegate’s decision
On 18 September 2008, the Applicant attended an interview with the Delegate.
On 30 September 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 Tribunal’s review and decision
On 28 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided further documents and material in support of his review application.
On 10 November 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 4 December 2008 to give oral evidence and present arguments.
On 4 December 2008, the Applicant gave evidence at a hearing before the Tribunal.
On 23 December 2008, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.
On 13 January 2009, the Applicant responded to the Tribunal’s letter.
The Tribunal noted that it had before it the Department’s file, 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, Mr Johnson, in his written submissions as follows:
“The Tribunal did not accept that the applicant was a Falun Gong practitioner or that he had practised Falun Gong[1]. Nor did it accept the applicant’s claims that he had suffered harm in China because of any Falun Gong practice or activities[2], or that he feared persecution in China either now or in the future[3]. The Tribunal further found that the applicant would not practise Falun Gong on return to China[4]. These conclusions were founded upon the Tribunal assessment of the applicant’s credibility, a matter for it “par excellence” (Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]).
The Tribunal was not satisfied as to the truth of the applicant’s claims (the Tribunal not accepting that the applicant is “a witness of truth”[5]). It referred to inconsistencies in the evidence and its non-satisfaction as to the applicant’s explanations. These findings were explained in detail by the Tribunal at [105]-[129].
Separately, the Tribunal also examined evidence as to the applicant’s activities in Australia, attending a Falun Gong practice site, attending protests and handing out material. That examination occurs at CB113-114, [130]-[131]. The Tribunal was not satisfied that the applicant’s conduct in Australia was engaged in for a purpose other than to strengthen his claims to be a refugee. Indeed, it positively found that the applicant engaged in such activities “for the purpose of enhancing his claim to be a refugee”[6]. The Tribunal thus found that it must “disregard the conduct engaged in by the applicant in Australia pursuant to section 91R(3) of the Act”[7]. (The reference to “the Act” was, of course, a reference to the Migration Act 1958.).”
[1] CB106, [103]; CB114, [132]
[2] CB107, [103]; CB114, [132]
[3] ibid
[4] CB111, [121]; CB113, [128]
[5] CB107, [104]
[6] CB114, [131]
[7] CB114, [131]
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 9 March 2009, the Applicant 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 he intended to rely was verified by affidavit. The Applicant was also directed to file and serve written submissions in support of his application. However, no further application, evidence or submissions were filed by or on behalf of the Applicant.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme.
At the commencement of the hearing before this Court, the Applicant confirmed that he relied on the grounds contained in the application filed on 25 February 2009.
The grounds of the application are expressed as follows:
“1. Since 1998, I’ve started practice of Falun Gong. I benefited physically and spiritually. I realized that Falun Gong has become my life belief. On 28 September 2007 whilst doing material delivery, I was detained for half a month. The police took turns interrogating and mistreating me. I was forced to write my confession (sic) and sign the pledge to renounce Falun Gong. Only after paying the fine of 10.000 yuan, I was released. I had to report to the police station regularly. I became jobless and my wife also was dismissed due to my involving of Falun Gong.
The Refugee Review Tribunal had bias against me and failed to take my claims into account according to S91R of the Migration Act 1958.”
The grounds of the application were interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application, other than the accompanying affidavit required by statute.
The grounds of the application make a bare allegation of bias on the part of the Tribunal unsupported by particulars, evidence or written submissions.
In support of his unparticularised allegation of bias, the Applicant stated that the Tribunal did not consider his experience; the Tribunal asked lots of questions about his past experience; the Tribunal disbelieved his past experience, especially his persecution in China; the Tribunal did not believe that the Applicant was a genuine Falun Gong practitioner; the Tribunal did not believe that the Applicant was persecuted in China because he was a Falun Gong practitioner; and, that the Applicant did not understand why the Tribunal did not accept that he was persecuted in China.
The Applicant’s complaints, as referred to above in support of the allegations of bias, are no more than a disagreement with the findings and conclusions made by the Tribunal. Disagreement with the findings and conclusions of the Tribunal, including adverse credibility findings, is not alone sufficient to demonstrate bias or an apprehension of bias (Refugee Review Tribunal Re: Ex parte H (2001) 75 ALJR 982 (“Ex Parte H”)).
Plainly, none of the oral allegations made by the Applicant, even if accepted, are capable of supporting the allegation of bias made by the Applicant. An allegation of bias is serious and requires evidence, such as a transcript of the hearing (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). As referred to above, the Applicant was directed to file and serve any evidence, including a transcript of the Tribunal hearing. The Applicant was also directed to give notice to the Court and the First Respondent if he wished to rely on tapes of the Tribunal hearing. At the commencement of this hearing, the Applicant confirmed to the Court that no further documents or evidence had been filed by him or on his behalf in accordance with the Court’s direction or otherwise. He also confirmed to the Court that he had no further documents or evidence at the hearing that he wished to provide in support of his application.
As stated above, there was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing, on 9 March 2009, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure than any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on tapes at the hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
A fair reading of the Tribunal’s decision record does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision record does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Ex parte H at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims; explored the Applicant’s claims with him at a hearing; had regard to material provided by the Applicant; put to the Applicant concerns it had about various aspects of his evidence and noted the Applicant’s responses. The Tribunal wrote to the Applicant following the hearing giving the Applicant information that may be part of the reason for affirming the decision under review and inviting him to comment. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised and considered the Applicant’s response to the Tribunal’s letter.
Ultimately, the Tribunal found the Applicant not to be a credible witness because of internal inconsistencies in his evidence and evidence inconsistent with written claims, none of which the Applicant was able to explain to the Tribunal’s satisfaction. The Tribunal was not obliged to accept the Applicant’s evidence and explanations. A fair reading of the Tribunal’s decision record makes clear that the Tribunal evaluated the evidence and material before it and made findings accordingly.
The Tribunal comprehensively rejected all claims of past harm made by the Applicant and was not satisfied that the Applicant had been a Falun Gong practitioner in China. The Tribunal noted that, in making its findings, it accepted that the Applicant may have been nervous and worried and concerned about his family, who remain in China.
In light of its findings, the Tribunal concluded that there was not a real chance that the Applicant would face persecution for a Convention related reason were he to return to China now or in the reasonably foreseeable future.
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 Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, the allegations of bias and apprehended bias are not made out.
It is for the Applicant to satisfy the Tribunal, being the relevant decision-maker, that he meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker, is not so satisfied, the Applicant must be refused a protection visa pursuant to s.65(1) of the Act.
In relation to the Applicant’s claim of failure to comply with s.91R of the Act, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s evidence about Falun Gong activities in Australia and accepted the Applicant’s claims to that effect. However, the Tribunal found that the Applicant had engaged in such activities for the purpose of enhancing his claims of being a refugee. The Tribunal noted that, in light of that finding, it must disregard the Applicant’s conduct in Australia, pursuant to s.91R(3) of the Act, in considering whether or not 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 did not have regard to the Applicant’s conduct in considering whether or not the Applicant had a well-founded fear of persecution for a Convention related reason.
In the circumstances, there was no breach by the Tribunal of its obligations under s.91R(3) of the Act.
In the circumstances, the Applicant’s complaints in the grounds of the application are no more than disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J).
Accordingly, the grounds of the 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; 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 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 makes clear that the Tribunal reached conclusions based on the findings made by it to which it 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-two (52) 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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