SZNJS v Minister for Immigration
[2009] FMCA 516
•28 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 516 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal made adverse credibility findings open to it on the material before it – Tribunal gave reasons for its findings – findings based on evidence – no obligation on Tribunal to conduct further enquiries – applicant seeking impermissible merits review – Tribunal considered applicant’s claims and integers of her claims – Tribunal correctly applied s.91R(3) – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R(3), 36(2), 65, 422B, 424 |
| SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 NABE v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Htun at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) CLR 259; [1996] HCA 6 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 |
| Applicant: | SZNJS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 736 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 May 2009 |
| Date of Last Submission: | 28 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 30 March 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 736 of 2009
| SZNJS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application made on 30 March 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 2 March 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 7 May 2008 (CB 51). He applied for a protection visa on 17 June 2008 (CB 1 to CB 27, including annexures). This application was refused by the delegate of the first respondent on 24 July 2008 (CB 28 to CB 38).
On 27 August 2008 the applicant applied for review of that decision (CB 39 to CB 42) and attended a hearing before the Tribunal on 8 December 2008 (CB 56), and after an adjournment of the hearing on 8 December 2008, on 25 February 2009 (CB 63). The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 70.7 to CB 74.1).
Claims to protection
The applicant’s claims to fear persecution in China were said to arise from circumstances concerning her practice of Falun Gong, which she said she commenced in 1998. She claimed to have protested in Beijing against the banning of Falun Gong in 1999, and as a result, the Public Security Bureau (“PSB”) detained, mistreated and sexually assaulted her. She was subjected to mental pressure, after which she developed depression. Following her release, the applicant claimed that she was again detained by the authorities in February 2008.
She also claimed to have been ostracised by those in her community as a result of these incidents.
The Tribunal
It is clear that the Tribunal made a comprehensive adverse credibility finding against the applicant. It did not accept her as a “witness of truth” (CB 74.7). While the Tribunal accepted that the applicant had practised Falun Gong in a limited way between late 1998 and mid 1999, it rejected all of her claims to have subsequently practised Falun Gong, and the claimed consequential mistreatment since that time.
The Tribunal considered each aspect of the applicant’s claims at some length and rejected each as being either not credible, inconsistent, implausible, false, or fabricated. The Tribunal’s assessment and rejection of each aspect of the applicant’s claims led it to find what it described as the cumulative adverse credibility finding in relation to the applicant (CB 79).
Specifically, the Tribunal found that she was not a “sincere and genuine Falun Gong practitioner”, or even that she was a “mere practitioner”, in the past in China. It rejected all of her claims of past harm as a result (CB 80).
The Tribunal accepted that the applicant had undertaken what it described as “limited” Falun Gong practice in Australia after arrival, but found that this was done for the purpose of strengthening her refugee claims, and it disregarded this conduct pursuant to s.91R(3) of the Migration Act.
Having rejected the totality of the applicant’s claims, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason and, accordingly, that Australia did not owe her protection obligations.
Application to the Court
The application to the Court is in the following terms:
“1. There was no evidence or other material to justify the making of the decision.
2. The making of the decision without considering the real situation about the applicant and Falun Gong in China.
3. The Tribunal has not taken or adequately taken into consideration the applicant’s claims.”
Despite opportunity afforded to the applicant at the first Court date in this matter, the applicant has not filed an amended application or any written submissions.
I note that for the respondent I have a formal Response and written submissions prepared by Mr Reilly of Counsel, who appeared for the Minister at the hearing.
Hearing before the Court
At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. She submitted that all that had “happened” (presumably, all that had happened to her in China) was true, and that the member did not carefully consider her case.
After describing for the applicant the difference between what could be said to be a failure by the Tribunal to consider an applicant’s case, and the Tribunal simply not believing an applicant’s case, the applicant confirmed for the Court that her complaint was that the Tribunal did not believe her.
She asked the Court to believe her and to assist her in finding error in what the Tribunal had done. As I explained to the applicant, there is some misconception in what she has asked the Court to do.
As Mr Reilly submitted, it is not the role of the Court to substitute its view of the applicant’s claims to be a refugee for the view arrived at by the Tribunal.
It is, as I said to the applicant, the case that it is immaterial whether or not I believed her claims to be a refugee. Even if I were to accept her claims, the Court has no power to assist her in this respect.
Consideration
Ground one
In the first ground to the application the applicant complains that there was “no evidence” to support the decision made by the Tribunal.
First, it must be noted that the relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction that the criterion set out relevantly in s.36(2), that is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, such that in these circumstances, a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In doing this, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims. Nor is it required to find evidence to “disprove” an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
As I have already noted, and as Mr Reilly submits, the Tribunal rejected the applicant’s claims based on its finding that she was not a credible witness. The findings supporting its overall finding that she was not telling the truth were as follows:
1)The Tribunal noted the inconsistency between what the applicant had put in her written statement attached to her protection visa application, and the claims that she had made at the Tribunal hearing relating to what had occurred when she said she came to be of interest to the police. That is, matters that she raised at the hearing, which were that she had been arrested, detained and physically and sexually assaulted by the police, were in contrast to her written claims, which were only that she had been taken into police custody, “warned and threatened”, and that she had suffered “mental pressure” (CB 75.7 to CB 75.10).
2)It did not believe that she had experienced physical or sexual assault because of the: “applicant’s provision of evidence at hearing” and the: “way the applicant presented her evidence” (CB 76.3 to CB 76.4).
3)The applicant only put this evidence to the Tribunal after it had put her on notice that her credibility may be at issue (CB 76.4).
4)The Tribunal further noted inconsistencies between her written statement and her evidence at the hearing in relation to the claims of being detained on a second occasion. After observing the applicant during the course of the hearing, the Tribunal found that she did not appear to be traumatised in the way that she gave her evidence at the hearing (CB 76.5 to CB 76.6).
5)The Tribunal did not find any evidence of her having been “raped” in that she did not appear to be traumatised in the way that she gave her evidence (CB 76.7).
6)The implausibility of the applicant being prepared to take the risk of coming to the adverse attention of the Chinese authorities by attending a protest in circumstances where she only had a limited knowledge of Falun Gong (CB 77.7 to CB 77.9).
7)The implausibility of her having communicated about Falun Gong with strangers in circumstances where she feared for her own safety (CB 78.6 to CB 78.8).
8)It did not believe her claims to have been detained for a second time because it had already rejected that she had ever been a Falun Gong practitioner in China (CB 79.1).
Plainly, the applicant was unsuccessful before the Tribunal because of the view that the Tribunal took of the applicant’s credibility. It is the case that this finding, and the findings supporting it, were all open to the Tribunal on the material that was before it, and for the comprehensive reasons that it gave. As Mr Reilly submitted, the finding that the applicant was not credible is a finding of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J at [67]).
In short, in relation to the ground as stated, there was evidence before the Tribunal to justify the making of its decision. That is, the applicant’s own evidence and the material she submitted in support of her protection visa application. The Tribunal was entitled to take the view that it did of this evidence.
Ground two
The second ground to the application asserts that the Tribunal did not consider the “real situation about the applicant and Falun Gong in China.”
If this is an assertion that the Tribunal should have made further enquiries in relation to the claims made by the applicant, such as the seeking of other independent information which presumably may have supported the applicant’s claims in some way, I note that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, of course, absent bias (see Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
While s.424 of the Act confers power on the Tribunal to seek additional information that may be relevant to the determination of an application before it, the exercise of such power is discretionary and, in any event, only requires the Tribunal to have regard to such information if it seeks and obtains it. Plainly, given the very clear difficulty that the Tribunal had in accepting the credibility of the factual basis of the applicant’s claims, it did not see any need to obtain any further information beyond what was already before it.
I cannot see any error in this regard.
Further, there is no obligation on the Tribunal to conduct its own independent enquiries, such as to make out the applicant’s case for her (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [26]).
Ultimately, it was for the applicant to put forward any evidence or material that she wished the Tribunal to take into account in support of his claims, and it was for the Tribunal to decide whether the claim was made out (see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 578 ([187]) per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] per Gummow and Heydon JJ). I note that the applicant had been given a reasonable opportunity to have done so.
The applicant’s complaint as stated, without anything further, does not rise above a request for the Court now to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259). This ground does not succeed.
Ground three
The third ground to the application alleges that the Tribunal did not “adequately” consider the applicant’s claims.
As Mr Reilly correctly, in my view, submitted, this ground as stated is meaningless.
However, in trying to make the best of what the applicant has put before the Court, I note that if this is a complaint that the Tribunal has failed to properly deal with the applicant’s claims, then I note that there is an obligation on the Tribunal to deal with each claim before it, and each aspect, or integer, of a claim made by an applicant. Further, it is required to deal with the claim as a relevant consideration in the task that it has been jurisdictionally given to perform (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J, with whom Spender J agreed. See also NABE v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 (“NABE”) per Black CJ, French and Selway JJ, with reference to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26).
However, the Tribunal is not required to deal with a case not stated by an applicant, or not arising from the material put before it (NABE at [49] to [49], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [44], Htun at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]).
In this regard, I note the material contained in the Court Book and, in particular, the applicant’s claims as set out in her protection visa application, and what she is reported to have said to the Tribunal at the hearing, an account which, again, it must be stressed, remains unchallenged before this Court by any evidence to the contrary. In my view, this reveals that the Tribunal understood the applicant’s claim that she was a Falun Gong practitioner, that she protested against the government’s banning of Falun Gong, and that she was detained by the Chinese authorities on two separate occasions, and was physically and sexually assaulted. It also considered her claim to have a poor memory (CB 81 to CB 82.1) and her Falun Gong activities in Australia (CB 80 to CB 81.8).
I cannot see that the Tribunal misunderstood, or subsequently failed to address, any integers of the applicant’s claims. To the extent that the applicant asserts without any real particularity that these were not taken into account, I cannot see, in the circumstances, that this gives rise to anything more than a request for impermissible merits review.
What the applicant really means by the Tribunal not taking her claims into “consideration” is that it did not believe her (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) CLR 259; [1996] HCA 6).
Other considerations
The Tribunal’s comprehensive rejection of the applicant’s credibility was arrived at without reference to, or reliance on, the applicant’s conduct in Australia. The Tribunal subsequently considered her claimed conduct in Australia; that is, that she practiced Falun Gong in her own home twice a week. It accepted that she did participate in a “limited Falun Gong practice” (CB 80.7). But it also found that it was not satisfied that the applicant’s motivation for this conduct was done for a reason other than for the reason of strengthening her claims to protection. Given this finding, which was open to it on the material before it, it disregarded the conduct as required by s.91R(3).
The Tribunal’s approach and application of this section was consistent with the relevant authority (see, for example, SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105).
Conclusion
I should note that the applicant has come to this Court having had the opportunity to arrange and obtain legal advice beyond that offered to her through the Court’s legal advice scheme. Despite this opportunity, the applicant has only come to this Court with three bare grounds which, in essence, are consistent with what she said to the Court at the hearing. That is, that her real grievance against the Tribunal’s decision is that the Tribunal did not believe her.
Unfortunately for the applicant, for her to succeed, the Court would need to find, at least, jurisdictional error in the Tribunal’s decision. The applicant, and I say this with some sympathy for her, asked the Court to assist her to find jurisdictional error in what the Tribunal has done. After considering the material before the Court, however, I cannot see such error in the Tribunal’s decision. The application, therefore, is dismissed.
Costs
In relation to the issue as to whether an order for costs ought to be made, I am of the view that there is nothing before the Court that would argue that such an order not be made. The applicant’s complaint is that the amount sought is: “a lot of money”, and while this may be directed towards the reasonableness of the amount sought, to the extent that it may imply some lack of funds on her behalf, and that the order should not be made, it is the case that such a situation is not a sufficient reason for the order not to be made.
I should observe, for the applicant’s understanding, that it is, of course, her right to come to this Court with an application to complain about the Tribunal’s decision. But as with the exercise of all rights, there are quite often consequences. The consequence in this case is that being unsuccessful, the Minister has properly sought to be reimbursed for that part of his legal costs that were incurred in responding to the application.
In all, therefore, it is appropriate that such an order be made. As to the amount, I note that the amount is well within the amount that could have been sought by the Minister as set out in the relevant Schedule to the Rules of this Court. In any event, having regard to the work that has been done by the Minister’s legal representatives, including the preparation of multiple copies of the Court Book, attendances at Court, the filing of a Response, the drafting and filing of written submissions, and an appearance by Counsel, the amount sought is a reasonable amount in all the circumstances.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 12 June 2009
0
25
1