SZNOJ v Minister for Immigration - [2009] FMCA 928

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 928

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(2); 91R; 91R(3); 91S; 425; 427(1)(d); 474; pt.8 div.2

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Multicultural and Indigenous Affairs v Yusef (2001) 206 CLR 323
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZNFO v Minister for Immigration & Anor [2009] FMCA 565
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant:

SZNOJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1076 of 2009

Judgment of:

Emmett FM

Hearing date:

8 September 2009

Date of Last Submission:

8 September 2009

Delivered at:

Sydney

Delivered on:

21 September 2009

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent:

Mr D. Godwin

Solicitors for the Respondent:

Ms K. Hooper, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1076 of 2009

SZNOJ

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 6April 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 13 October 2008 having departed legally from Zhang Gui Zhang via Papua New Guinea on a passport issued in his own name and a tourist visa issued on 1 September 2008.
On 27 October 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 15 December 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 9 January 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 6 April 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 4 May 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, 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 claims and the Delegate’s decision

In his protection visa application, the Applicant stated that he left China because he was a Falun Gong practitioner and in China Falun Gong is regarded as “evil”. The Applicant stated that he was persecuted by the Chinese government as a Falun Gong practitioner.
On 11 December 2008, the Applicant attended an interview with the Delegate. At the interview, the Applicant stated that he commenced Falun Gong practice in 2004, having been introduced to it by his sister. The Applicant told the Delegate that he would practise Falun Gong at home and sometimes with his wife. He said he last practised Falun Gong in China in June 2008. The Applicant told the Delegate that he was arrested at his home at the end of 2004 for practising Falun Gong, following which he was assaulted by police and detained for a few days and forced to sign a confession agreeing not to practise any longer. The Applicant told the Delegate that after his release he continued to practise the exercises at home and was arrested again in 2006 and 2008. The Applicant said that on both occasions he was taken to the local police station, assaulted by police and detained “for a few days”. The Applicant also told the Delegate he had been practising Falun Gong exercises in a park in Auburn since his arrival in Australia.
The Applicant told the Delegate that, although he had arrived in Australia from Papua New Guinea, he had not sought refugee status in Papua New Guinea because “it was very chaotic and violent”.
The Delegate found in its decision record that the Applicant displayed “very limited knowledge of tenants of Falun Gong”. The Delegate found that the Applicant was able to provide “very little detail” of his alleged arrest and detention. The Delegate was not satisfied that the Applicant is a genuine Falun Gong practitioner, nor that he was arrested and detained as claimed.
On 15 December 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 9 January 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of his application other than a copy of his passport.
On 5 February 2009, 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 6 March 2009 to give oral evidence and present arguments.
On 6 March 2009, the Applicant attended the Tribunal hearing and gave evidence.
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.
At the outset of its decision record, the Tribunal set out the relevant law that it must apply to the facts that it found.
The Tribunal quoted in full the Applicant’s written claims.
At the hearing, the Applicant told the Tribunal that he was not aware of what was in his application. The Tribunal noted that it asked the Applicant to outline the grounds for his protection visa application. The Applicant stated that the main reason that he had a well-founded fear of persecution, if he were to return to China, was because he was a Falun Gong practitioner.
The Tribunal put to the Applicant concerns it had about various aspects of his claims and evidence. For example, the Tribunal asked the Applicant why, having obtained a passport in China in 2005, he did not leave China until July 2008 if he had a well-founded fear of persecution because of his Falun Gong practice. The Tribunal noted that the Applicant responded that the surveillance in China was “significant” and that he did not believe he was safe in China. The Applicant responded that he was unable to find anyone to assist him to leave China until 2008.
The Tribunal noted that the Applicant said that he left China on 16 July 2008 and travelled to Papua New Guinea, having had no problems with immigration when departing from China. The Tribunal noted that it asked the Applicant why he had not applied for a protection visa in Papua New Guinea. The Tribunal noted the Applicant’s response that he was going to lodge a protection visa application there, however, security in Papua New Guinea “was terrible and there were many thefts around, and public order was bad.”
The Tribunal also explored with the Applicant his claims of being a Falun Gong practitioner, including how he came to commence Falun Gong practise in China. The Tribunal noted that the Applicant said that he did not practise publicly.
The Tribunal asked the Applicant whether he practised Falun Gong in Australia and noted the Applicant’s response that he did so in a park in Auburn close to a railway station for an hour on Saturday and Sunday, although he had not practised Falun Gong in Papua New Guinea because he was working too hard.
The Tribunal then explored with the Applicant his knowledge of Falun Gong, including his knowledge of the Falun Gong exercises.
The Tribunal also explored with the Applicant his claims of having been arrested in China in 2006 and 2008. The Tribunal put to the Applicant how he had come to attract the attention of authorities, given that he practised in private. The Applicant responded that he was probably reported by a neighbour.
The Tribunal explored with the Applicant his claims of ill-treatment by the Public Security Bureau in China following is arrest and detention.
The Tribunal also explored with the Applicant whether he had made any links with any Falun Gong associations in Australia and why he did not have endorsements from the Falun Gong associations in Australia in support of his protection visa application. The Tribunal noted the Applicant’s response that he did not know people in those associations because he had only been in Australia for a short time, although he practised in a park in Auburn on Saturdays and Sundays for an hour.
The Tribunal rejected the Applicant’s claims of ever having been a Falun Gong practitioner and found his claims of past practice of Falun Gong and persecution for that reason to be fabricated. The Tribunal found that the Applicant “exhibited no relevant knowledge of Falun Gong practise or belief.” The Tribunal was not satisfied that the Applicant was at risk of harm if he were to return to China in the reasonably foreseeable future for that reason. The Tribunal also found that there was no other information that would support a conclusion that the Applicant feared harm for any other 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 Mandarin interpreter.
On 15 June 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. No further application, evidence or submissions were filed by or on behalf of the Applicant.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant a contact list of providers of legal assistance and interpreting services headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an application filed on 4 May 2009 as follows:
“1. RRT did not make fair decision for me. They did not weigh my evidence both here and in China.
2. RRT did not use favourable cases to my application. RRT failed to consider the risk for me to go back and RRT did not give me a letter to comment on the doubts. RRT failed to assess my risk to return to China.”
Each of the grounds was 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 the 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.
None of the grounds were supported by particulars, evidence or oral or written submissions. The Applicant made no meaningful submission in support of the grounds or in support of his application generally, save to say that the Tribunal did not carry out a thorough investigation and made its decision only on what it had heard from the Applicant. Those allegations were not further particularised by the Applicant.
The Applicant’s allegation that the Tribunal did not carry out a thorough investigation was made for the first time orally to this Court. However, it is well established that it is only in certain circumstances that the Tribunal may be obliged to investigate an applicant’s claims. There is no positive duty to investigate claims imposed upon the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ).
As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate the Applicants’ claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so (for example, see s.427(1)(d) of the Act; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [24]-[25] per Heerey, Nicholson and Mansfield JJ; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 561; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78] per Nicholson J).
In NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18] to [21] per Jacobson J (upheld on appeal) stated:
“There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ).
The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances.” (Emphasis added)
Jacobson J cited Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. At page 170, Wilcox J stated as follows:
“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information.” (Emphasis added)
It is for an applicant to satisfy a tribunal that he meets the relevant criteria for being a refugee. Section 65(2) of the Act mandates that if the decision maker, in this case the Tribunal, is not so satisfied then a protection visa must be refused.
A fair reading of the Tribunal’s decision record and review process as disclosed in the bundle of relevant documents, marked Exhibit 1R, makes clear that the Applicant was given two written opportunities to provide to the Tribunal whatever he wished by way of material in support of his application. On 12 January 2009, the Tribunal wrote to the Applicant inviting him to send any documents, information or other evidence he wished the Tribunal to consider. Again, on 5 February 2009, the Tribunal wrote again to the Applicant inviting him to send any additional information or new information he wished the Tribunal to consider.
The Applicant also attended a hearing of the Tribunal at which his claims were explored by the Tribunal. 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 before me on 15 June 2009, the Applicant had been given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on 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.
The bare assertions made in the grounds of the application do not disclose any error capable of review by this Court and none is apparent on the face of the Tribunal’s decision record.
The Court considered whether or not the Tribunal was required to make a specific finding in relation to the Applicant’s evidence of Falun Gong practice at a park in Australia on Saturdays and Sundays. Counsel for the First Respondent, Mr Godwin, conceded that the Tribunal did not make a specific finding as to whether or not it accepted the Applicant had engaged in such practice. However, Mr Godwin submitted that the Tribunal’s comprehensive rejection of the Applicant’s claims and of any past persecution for that reason, including that he had fabricated his claims of being a Falun Gong practitioner, led to the necessary implication that the Tribunal had not accepted the Applicant’s evidence of having engaged in such practice.
In my view, in light of the Tribunal’s comprehensive findings of fabrication of his claims, it was not necessary for the Tribunal to make a more specific finding about the Applicant’s claim to have practised Falun Gong in Australia. Any such specific finding, even if accepted, would not have established by itself that the Applicant had a well founded fear of persecution for a Convention reason. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]-[47] per the Court (French, Sackville and Hely JJ) the Full Court of the Federal Court of Australia stated as follows:
“[46] It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf MIMIA v Yusef (2001) 206 CLR 323; 62 ALD 225; 180 ALR at [87] to [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. …Its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.” (Emphasis added)

Having found that the Applicant is not and never has been a Falun Gong practitioner, it follows that the Tribunal did not accept his evidence that he practised Falun Gong in Australia. In the circumstances, s.91R(3) was not engaged (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [22]; SZNFO v Minister for Immigration & Anor [2009] FMCA 565 at [50]-[54]).
Otherwise, 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).
Further, a fair reading of the Tribunal’s decision record does not identify any issue that the Tribunal failed to put to the Applicant in accordance with its obligations under s.425 of the Act (SZBEL v Minister for Immigration and Indigenous Affairs (2006) 231ALR 592 at [35], [37], [47]).

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant and explored those claims with the Applicant at a hearing. The Tribunal explored with the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. 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. 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: 18 September 2009