SZNJB v Minister for Immigration
[2009] FMCA 587
•24 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJB v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 587 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425 |
| Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 SZBEL v Minister for Immigration (2006) 231 ALR 592 SZJGV v Minister for Immigration & Anor (2008) 247 ALR 451 |
| Applicant: | SZNJB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 675 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 24 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms B Rayment Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 675 of 2009
| SZNJB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 3 March 2009. The Tribunal affirmed a decision of a delegate Minister not to grant the applicant a protection visa. The applicant is from China and had made claims for persecution based upon her practise of Falun Gong. Background relating to the applicant's claims and the Tribunal decision on them is conveniently set out in the Minister's written submissions filed on 5 June 2009. I adopt as background for the purposes of this judgment, with amendments, paragraphs 2 through to 10 of those written submissions:
In a statement attached to her protection visa application, the applicant claimed to fear persecution from the authorities in the PRC due to her practice of Falun Gong. She was introduced to the practice in 1998 by her boss, who petitioned the government’s crackdown on the movement in 2001 and disappeared. The applicant set up her own shop in 2002, and would practice Falun Gong privately there after work. In June 2008, police raided her shop and seized Falun Gong materials. The applicant was detained and tortured with ‘electric batons’ and released only after her parents paid a bribe. When she retuned to her shop she found it had been sealed with the words ‘Evil Cult Den! Sealed under the Order’ and so fled the PRC for Australia: Court Book (‘CB’) 27 – 28.
The applicant attended a Departmental interview with the delegate on 5 November 2008. At interview the applicant gave evidence of her Falun Gong activities in Australia and submitted photographs to support that claim: CB 33-38, 59.8-60.4. The Delegate also questioned her about her knowledge of Falun Gong (CB 58.5-59.7) and discussed with her inconsistent information that was contained in her business visa application: CB 61.3.
In a decision dated 24 November 2008, a delegate of the Minister refused to grant the applicant a protection visa: CB 52-62. The delegate essentially rejected the applicant’s claims on the basis of adverse credibility findings. The delegate found that the applicant’s knowledge of Falun Gong was not commensurate with a practitioner who had been practising since 1998 as the applicant claimed, that she had admitted to lying in her business visa application which reflected on her overall credibility and that her ability to leave the PRC legally indicated that she was not of interest to the authorities in the PRC at the time of her departure. The delegate concluded that she was not satisfied the applicant had ‘substantiated a claim that she was persecuted on account of her Falun Gong practice and beliefs’ or that she faced a real chance of Convention-based persecution should she return to the PRC. Accordingly, the applicant’s fear of persecution was not well-founded: CB 61.
Proceedings before the Tribunal
On 28 November 2008, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 63-66.
By a letter dated 22 December 2008, the Tribunal validly invited the applicant to attend a hearing on 12 February 2009 at 11.00am: CB 67-68. The applicant accepted this invitation (CB 69) and attended the hearing on 12 February 2009: CB 70-71.
At the hearing the applicant provided the Tribunal with further photographs of her engaging in Falun Gong activities in Australia (CB 77-80) and an untranslated letter in the Mandarin language: CB 92 [43]-[45]. The applicant gave evidence to the Tribunal that the untranslated letter was signed by Li Jiamo, leader of the Central Station Falun Gong exercise group and Zhu Meihuan, a fellow practitioner and that it certified that the applicant had been practising there since 28 August 2008, that she practises very hard and often communicates her understanding to others: CB 92 [45]. The applicant otherwise elaborated on her claims and gave evidence that since arriving in Australia, she had studied the Zhuan Falun, practised Falun Gong regularly at various sites and had been involved in the protests and the distribution of Falun Gong materials: CB 86 [26], 91 [38] and 92 [42] – [45].
At the conclusion of the hearing the Tribunal put to the applicant what it considered to be ‘adverse information’ that had arisen during the course of the hearing and which caused it concern. This included the applicant’s lack of detailed knowledge of her former boss’ disappearance and the fact that police had raided her shop six years after this event, despite the applicant’s claim that she had been practising Falun Gong in secret during this time: CB 92 [46]-[47]. The Tribunal also expressed surprise that the applicant had not studied Falun Gong texts or made contact with other practitioners in China when, in Australia, she had been very committed to her study of Falun Gong and interaction with other practitioners: CB 92 [48].
The Tribunal made its decision on 3 March 2009, affirming the decision under review. On the basis of adverse credibility findings, the Tribunal rejected the applicant’s claim to have been a committed Falun Gong practitioner in China after 1999, who had been arrested, detained and mistreated because of her practice. The Tribunal found that the applicant’s evidence of her practice in China was ‘unconvincing’, particularly her account of her arrest and detention, and found there was no plausible evidence before it that indicated the applicant was of adverse interest to the authorities in China as she claimed: CB 93 [51] – [52].
Whilst the Tribunal accepted that the applicant had become involved in Falun Gong activities in Australia, it was not satisfied she did so otherwise than to strengthen her refugee claims. As such and pursuant to s.91R(3), the Tribunal disregarded the applicant’s conduct in Australia[1]: CB 95 [55]. Accordingly, the Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason.
[1] SZJGV v Minister for Immigration & Anor (2008) 247 ALR 451
These proceedings began with a show cause application, filed on 23 March 2009. The application contains three grounds which I incorporate into this judgment:
1. The Refugee Review Tribunal acted Ultra Vires in its decision in that it took into account irrelevant considerations (see below) and did not properly take into account relevant issues. In particular at Point 33 (bottom of page 7 mention is made of the Department of Immigration assertion that “since she came to Australia she has practiced Falun Gong activities to strengthen her claims to a Protection Visa” This is a breach of section 91R(3) Migration Act. At point 40 and 41 she shows strong evidence of Falun Gong practice and yet at the end of Point 41 the [Tribunal] subjectively and judgmentally assert that “this account appeared to be fairly superficial” without evidencing this assertion.
2. The Refugee Review Tribunal denied the applicant Natural Justice in its decision making (In particular that the [Tribunal] at Point 26 did not properly explain to her or have properly translated to her the accusation that she provided incorrect information in her business visa application and that if she were prepared to provide false information to get a Business Visa then she could also be provided false information to get a Protection Visa; the applicant said that as a Falun Gong practitioner she could not give true information.” The applicant never said that “as a Falun Gong practitioner she could not give true information but rather she said that as a Falun Gong practitioner she could not lie. She said totally the opposite of what is asserted in the [Tribunal] decision. Also at point 33 “she seemed evasive and confused in her response and was asked what she meant on several occasions” and at Point 34 “the [T]ribunal said that it found it difficult to believe that she continued to practice Falun Gong by her self for another 7 years when she came to Australia” These are unfairly subjective and judgmental statements and indicative of a bias against the applicant. Also the translator did not translate all of what I said properly and correctly
3. The Refugee Review Tribunal committed a jurisdictional error when making its decision. (In particular that the [Tribunal] contravened section 91R(3) of the Migration Act by adversely taking into account the applicant’s Falun Gong activity when making its decision see in particular; [Tribunal] decision: page 5 point 26, page 10 points: 38, 42, page points 44, 45, 48 and despite point 54)
The application is supported by a short affidavit as I received as evidence. I also have before me as evidence the court book, filed on 20 April 2009. Only the Minister filed written submissions.
The applicant made brief oral submissions in which she disputed the Tribunal's finding concerning her motivation for practising Falun Gong in Australia. However, as I explained to the applicant, it is not for the Court to make its own finding in relation to the applicant's motivation. The Court is only concerned with the validity of the Tribunal decision.
In my view, the Tribunal did not breach s.91R(3) of the Migration Act 1958 (Cth). The Tribunal recited in its reasons the facts and circumstances leading to its conclusion as to the applicant's motivation. The Tribunal was entitled to conclude, as it did, that the applicant did not engage in that conduct in Australia for a reason other than to support her protection visa claims. No error is disclosed in the Tribunal's reasons concerning its consideration of s.91R(3). The Minister deals with that issue in paragraphs 12 to 14 and in paragraph 21 of the submissions. I agree with those submissions and adopt them, with any necessary amendments, for the purposes of this judgment:
Ground one alleges that the Tribunal ‘took into account irrelevant considerations and did not properly take into account relevant issues’. It particularises this firstly, by reference to the Tribunal’s finding in accordance with s.91R(3) that the applicant had practiced Falun Gong in Australia for the purpose of strengthening her refugee claims. Secondly, the ground refers to the Tribunal’s finding that the applicant’s knowledge of Falun Gong was ‘fairly superficial’.
Neither of these particulars identify an irrelevant consideration that the Tribunal took into account, or a relevant consideration that the Tribunal failed to consider. To the extent that this ground one alleges error in the Tribunal’s application of s.91R(3), it must also fail. The Tribunal discussed the applicant’s conduct in Australia with her in some detail at the hearing: CB 86 [26], 91 [38] and 92 [42] – [45]. The Tribunal ultimately found that, as the applicant was not credible and had not been a genuine Falun Gong practitioner in China, it was not satisfied that the applicant’s involvement in Falun Gong in Australia was undertaken for any reason other than to strengthen her claim to be a refugee: CB 94 [55]. Given this finding as to the applicant’s motivation for engaging in the Australian conduct, pursuant to s.91R(3) the Tribunal correctly disregarded the applicant’s conduct in Australia.[2] The Tribunal’s finding that the applicant’s claim to have practised Falun Gong in Australia was undertaken solely to strengthen her refugee claim was open to it for the reasons it gave and its application of s.91R(3) discloses no error.
Nor is there any error in the Tribunal’s comment that the applicant’s knowledge of Falun Gong ‘fairly superficial’: CB 91 [42]. This did not ultimately form the basis for the Tribunal’s decision. Instead the Tribunal rejected the applicant’s claims based on other identified implausibilities in her evidence, which it concluded was ‘unconvincing’: CB 93 [51]-[52]. At best the applicant’s disagreement with the Tribunal’s assessment of her knowledge is no more than a request for this Court to undertake impermissible merits review of the Tribunal’s decision.[3] Ground one should be dismissed.
Ground three again alleges the Tribunal breached s.91R(3) of the Act. The ground refers to the paragraphs which refer to the applicant’s conduct in Australia. As discussed at paragraph [13] of these submissions in relation to ground one, the Tribunal’s application of s.91R(3) discloses no error.
[2] SZJGV v Minister for Immigration & Anor (2008) 247 ALR 451
[3] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272].
The allegation of procedural unfairness in ground 2 is supported by nothing other than the applicant's assertion in her application. There is no evidence that the applicant's evidence at the Tribunal hearing was not translated accurately. In that regard I note that on 22 April 2009, I made orders, amongst other things, giving the applicant the opportunity to file a transcript of the Tribunal hearing by 20 May 2009. She did not take up that opportunity. There is no substance to the other particulars of alleged procedural fairness. Further, I agree with and adopt for the purposes of this judgment, paragraphs 15 through to 20 of the Minister's written submissions in relation to ground 2:
Ground two asserts that the applicant was denied natural justice by the Tribunal. Firstly, the ground contends that the Tribunal ‘did not properly explain to her or have properly translated to her the accusation that she provided incorrect information in her business visa application’ and that ‘if she was prepared to provide false information in her business visa application she could also be providing false information in her protection visa’. This particular refers to paragraph [26] of the Tribunal’s decision record, where the Tribunal summarises the applicant’s evidence at the interview before the delegate.
To the extent that this particular alleges a breach of s.424A, it cannot be made out. There was no obligation on the Tribunal to put this material to the applicant for comment pursuant to s.424A as it did not constitute ‘information’ for the purposes of the section. In order for the ‘information’ to be considered ‘the reason, or part of the reason, for affirming the decision under review’, it must contain ‘in its terms’ a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations.[4] The inconsistent information in the applicant’s business visa application did not ‘in its terms’ undermine her claim for a protection visa. On that question the information was quite neutral.[5] The inconsistencies and doubts that information gave rise to in her protection visa application did not attract the operation of s.424A(1) because they were not ‘information’ for the purposes of that section, and cannot be considered ‘part of the reason for affirming the decision that is under review’.[6]
Nor was there any other information that enlivened the Tribunal’s obligations under s.424A, including the further ‘adverse material’ that the Tribunal orally put to the applicant at the hearing, purportedly in compliance with s.424AA: CB 92 [46] – [49]. That ‘information’ included inconsistencies and implausibilities in her oral evidence to the Tribunal. Such information specifically falls within the exception to ‘information’ contained in s.424A(3)(b), which applies to both s.424AA and s.424A of the Act. Accordingly, that material was not required to be put to the applicant for comment however no error is revealed in the Tribunal’s cautious approach.[7]
To the extent that this ground alleges a breach of s.425 by the Tribunal, it must also fail. The Tribunal put its concerns about the inconsistencies and implausibilities in the applicant’s evidence to her during the hearing and the applicant was on notice from the delegate’s decision that the information in her business visa application was an issue arising on the review. Therefore the applicant was on notice of the determinative ‘issue’ on the review, namely the inconsistencies in her evidence and ensuing credibility concerns. As applicant was given the opportunity to address those concerns at the hearing, no breach of s.425(1) is apparent.[8]
Ground two is further particularised by a disagreement with the Tribunal’s note that the applicant had said in her delegate’s interview that ‘as a Falun Gong practitioner she could not give true information’. The applicant asserts that at the Tribunal hearing the translator ‘did not translate what I said correctly’. For an applicant to establish that they have been denied a fair hearing because of interpretation problems, they must show that either the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal, or that errors made by the interpreter at the hearing were material to the conclusions of the Tribunal adverse to the applicant.[9] The applicant has not placed any evidence before the Court by way of transcript of her delegate’s interview or the Tribunal hearing. In the absence of particulars and supporting evidence[10], this ground must fail. Moreover the applicant was assisted by a Mandarin interpreter at both the delegate’s interview and the Tribunal hearing and there is no indication that the applicant ever raised during the interview, the hearing, or anytime thereafter that she had difficulties communicating through the interpreter provided. Furthermore, it is clear from a reading of the Tribunal’s decision record that that the applicant was able to respond to the Tribunal member’s questions at the hearing in a meaningful way. Her answers are all responsive to the questions put by the member and are not indicative of communication difficulties one might expect to see if the applicant was struggling with interpretation issues as claimed. This particular does not establish any error.
Finally, ground two alleges that the Tribunal was biased against the applicant due to its questioning of the applicant during the hearing about whether she had continued to practice Falun Gong by herself for seven years prior to coming to Australia. An allegation of bias is very serious and is one that must be clearly made and distinctly proved.[11] There is nothing in this particular to support any inference of bias on the part of the Tribunal, nor has the applicant placed any evidence before the Court to support this serious allegation. To the contrary, the member provided the applicant an opportunity to comment on concerns it had about her evidence. Moreover there is nothing in the Tribunal’s decision as a whole that suggests a hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct concerned might reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the questions to be decided in this case.[12] The applicant’s allegation of bias is without basis and must fail. Accordingly none of the particulars to ground two establish any error on the part of the Tribunal and ground two must fail.
[4] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17].
[5] SZICU v Minister for Immigration [2008] FCAFC 1 (20 February 2008) at [26].
[6] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]-[18].
[7] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30].
[8] SZBEL v Minister for Immigration (2006) 231 ALR 592 at [42]-[44].
[9] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17] per Mansfield, Emmett, Selway JJ.
[10] NAOA v Minister for [2004] FCAFC 241 at [21].
[11] Minister for Immigration v Jia (2001) 178 ALR 421 at [69] and SBBS vMinister for Immigration (2002) 194 ALR 749.
[12] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982.
The applicant has failed to establish any jurisdictional error by the Tribunal. Neither is any error apparent to me from my own reading of the material. I conclude that the Tribunal decision is a privative clause decision. The application must, therefore, be dismissed and I so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $3,500. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 June 2009
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