SZNWJ v Minister for Immigration
[2009] FMCA 1303
•8 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNWJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1303 |
| MIGRATION – Review of decision of Refugee Review Tribunal – applicant pleading pro forma grounds – no error in Tribunal decision – applicant on notice as to determinative issues – Tribunal complied with procedural fairness obligations – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 425A |
| SZLYK v Minister for Immigration & Anor [2008] FMCA 1143 SZLQQ v Minister for Immigration & Anor [2008] FMCA 703 SZHRH v Minister for Immigration & Anor [2006] FMCA 1385 SZIXX v Minister for Immigration & Anor [2006] FMCA 1415 SZKFS v Minister for Immigration & Anor [2007] FMCA 1011 SZLHM v Minister for Immigration & Citizenship [2008] FCA 754 NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 |
| Applicant: | SZNWJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2109 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 8 December 2009 |
| Date of Last Submission: | 8 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 31 August 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2109 of 2009
| SZNWJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made on 31 August 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 July 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant and her husband are citizens of the People’s Republic of China (“China”). They arrived in Australia on 4 December 2008 on a Short Stay Business Visitor visa. The applicant applied for a protection visa on 15 January 2009 (see Court Book – “CB” – CB 29 to CB 66, with annexed statement in support of application). The applicant’s husband applied for a protection visa as a member of the applicant’s family. I note that he is not an applicant before this Court.
Claims to Protection
The applicant claimed that she was introduced to Falun Gong by a friend following a miscarriage in 1998. She continued to practice Falun Gong, even after it was “banned” by the Chinese authorities. Her claims to protection were that in June 2000, police broke into her home and arrested her. She was taken to a police station where she was questioned and asked to “confess” her involvement with Falun Gong.
She claimed that she was made to squat as punishment. At the time, she was five months pregnant. After about two hours, she felt pain in her abdomen and asked to be allowed to stand, but was pushed over.
The applicant was released after she signed a declaration saying that she would not practice Falun Gong. But following hospitalisation, she lost her baby. Following this the applicant was required to go to the police station regularly for “checking”.
She claimed that, in September 2003, police again attended and searched her home, where they found Falun Gong books. That on this occasion, when she was arrested, she was held for six months. That, following her release, she was required to attend the police station every week for “checking”.
The applicant also claimed that, after losing their jobs, she and her husband opened a small shop, but that the police would “always” attend the shop, taking stock without paying and making the applicant and her husband give them cigarettes and alcohol, and that this adversely affected their business.
The applicant claimed that they were only able to obtain passports to leave China after paying a bribe to a government officer.
The Delegate
The applicant was invited to attend an interview with the Minister’s delegate. She did not attend. Nor did she, or the migration agents whom she had retained to represent her, provide any reason or seek another opportunity to attend the interview.
The delegate concluded that the applicant was not a credible witness due to: “…inconsistencies, the implausible nature of her claims and the fact that she did not turn up for interview” (CB 82). In these circumstances, the delegate considered it reasonable to conclude that the applicant was not a genuine Falun Gong practitioner, and did not have a genuine Convention related fear of persecution.
I note, although it does not assist the applicant today, that I have difficulty with the delegate’s finding that the applicant was not a “credible witness”. As I said in SZNJV v Minister for Immigration & Anor [2009] FMCA 937, in considering a finding by a Tribunal that an applicant was not a “credible witness”, in circumstances where the applicant had never appeared before the Tribunal, a description such as “a person not being a credible witness” is a finding about the personal integrity of that person, and therefore should not be lightly made, particularly in circumstances where the applicant has not appeared to give evidence. Nonetheless, clearly, the delegate’s decision is not the decision that I am reviewing today.
The Tribunal
The applicant applied for review by the Tribunal on 24 April 2009
(CB 83 to CB 86). The same migration agent continued to represent the applicant and her husband. Both were invited, ultimately, to attend a hearing before the Tribunal. The applicant attended on 15 July 2009. It would appear that neither the applicant’s husband nor the representative were present (CB 101).
The Tribunal’s account of what occurred is set out in its decision record ([28] to [56] at CB 116 to CB 121). I note that, in addition to her oral evidence, the applicant submitted two photographs which were said to show her practising Falun Gong in a park ([28] at CB 190 and CB 116).
Drawing from the Tribunal’s “Findings and Reasons”, the Tribunal did not consider the applicant to have displayed a level of knowledge of Falun Gong that could reasonably be expected of someone who had claimed to have practised for ten years ([67]). The Tribunal considered that she demonstrated a lack of understanding incompatible with her claim to have been a dedicated practitioner.
The Tribunal acknowledged that the applicant appeared to have some familiarity with Falun Gong concepts and words. But found that she was unable to explain these in any meaningful way. It found her relevant evidence to be vague and lacking coherent explanation or clarity. It found her knowledge to be superficial and easily learned for the purposes of the application ([71]).
Further, the Tribunal considered it “highly significant” that the applicant claimed to have practiced only infrequently since her arrival in Australia, and not at all for the four months preceding the hearing ([72]). Rather, the Tribunal found the applicant’s priority in Australia had been to work, rather than practice Falun Gong ([72]). The Tribunal ultimately determined that whatever study of Falun Gong had been done in Australia had been done for the purpose of strengthening her claim to refugee status, and therefore, as such, it had to disregard such conduct pursuant to s.91R(3) of the Act ([73] and [81]).
Even further, the Tribunal found that the omission of a key claim from her written statement, put in support of her original application: “…reflects a lack of truthfulness” ([76]), and that evidence of activities and events in China was: “…internally inconsistent and implausible” ([77]). I note here, as examples, in particular [76] to [79] of the Tribunal’s decision record.
For this reason the Tribunal found that the applicant was not a credible witness ([80]). I note in passing that, unlike the delegate, the Tribunal did have the advantage of testing the applicant’s evidence in that regard, at a hearing.
The Tribunal, therefore, rejected the applicant’s factual account to be a Falun Gong practitioner in China. I stress that was because it found her not to have been truthful in giving this account. While it accepted that she had engaged in some Falun Gong activities in Australia, it found that this was not because of any commitment to Falun Gong, but rather to strengthen her refugee claims.
In all, therefore, the Tribunal found that Australia did not have protection obligations to the applicant, and it affirmed the delegate’s decision.
Application to the Court
The application put before the Court by the applicant contains two stated grounds. The first is:
“1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
2. The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.”
The following text also appears in the applications:
“In paragraph 72, on page 15 of the decision, the Tribunal member stated that I have not practiced Falun Gong at all during the four months that I have been living in Brisbane. Actually during the hearing I said that I practiced Falun Gong at home for that four months while I were in Brisbane. Please refer to hearing Record disc 3 at 20mins 11 seconds.
The following is extracted from the disc 3 in relation to this matter
RRT member: “I found that would be difficult to believe that you’ve been to Australia for 7 months or so, where you freely participating Falun Gong and everything, but you hardly done anything.”
I said: I practiced. I stayed 20 days in Brisbane when I first arrived. And first, we had an exhibition. That’s why I didn’t have time to practice. Then I went to Sydney.
How to put it, because I was not familiar with this place, I did not have very good understanding her neither my English is good. After I got familiar with the environment and people here, I knew more things and I continued to practice again. After I found my job, I worked very hard to payback the debt I had because I want to go aboard. That’s why I moved to Brisbane, the place in Coominya. That place is a distant place and according to my requirement to myself, as long as I continued the reading and practicing, then I am still genuine.
3. costs.”
Before the Court
The applicant appeared before the Court today in person. She was assisted by an interpreter in the Mandarin language. The respondent was represented by Ms S A Sirtes of counsel. I note that written submissions have been filed on behalf of the first respondent. Nothing further has been filed by the applicant who, when given the opportunity to make submissions before the Court, said that she relied on the grounds set out in her application, and that it was unfair of the Tribunal not to believe that she was a Falun Gong practitioner.
The applicant explained that she had received some assistance in the drafting of the application to the Court. That she had told a friend that it was wrong of the Tribunal to have found that she was not a Falun Gong practitioner and that, further, I understood her to say that she had drafted what I can describe as particulars, perhaps, to ground 2 as stated in the application.
Just focusing at first on the two grounds, Ms Sirtes submitted that the applicant’s grounds are pro forma, and have been raised relevantly in these terms in a large number of cases before this Court. These cases are set out with citations at paragraph 11 of the Minister’s written submissions. Having satisfied myself, I can only agree with Ms Sirtes, that, indeed, the applicant’s two grounds are identical to grounds put before the Court in SZLYK v Minister for Immigration & Anor [2008] FMCA 1143 (“SZLYK”) and SZLQQ v Minister for Immigration & Anor [2008] FMCA 703, and, in substance, amount to similar grounds in SZHRH v Minister for Immigration & Anor [2006] FMCA 1385 and SZIXX v Minister for Immigration & Anor [2006] FMCA 1415, and whilst slightly different, in SZKFS v Minister for Immigration & Anor [2007] FMCA 1011, and so essentially are directed to the same kind of formulaic and general complaint.
I note and agree with submissions that litigants, such as the applicant before the Court today, do not really assist themselves by bringing grounds of review which are asserted in general terms, and bear little resemblance, or little connection, to the particulars of their case.
I note submissions made in relation to the concerns expressed by Flick J in SZLHM v Minister for Immigration & Citizenship [2008] FCA 754. As I said during the course of the hearing today, I want to respectfully add my voice to the concerns enunciated by his Honour in that case. I particularly add that it is a sorry state of affairs, where applicants who already have so many disadvantages, such as the applicant before the Court today, disadvantages of language, culture and lack of understanding of how the relevant system operates in Australia, put their reliance in “friends” for assistance who clearly lack capacity and knowledge to properly assist in the conduct and prosecution of their matter before the Court.
I also note that, in the current case, the applicant did access the Court’s “RRT Legal Advice Scheme”, and was provided with advice by counsel who is a member of that panel – counsel who has appeared before me, and who has experience in these types of matters. I also note my concern that those who have embarked on a course of seeking to remain in Australia for whatever reason, whether it be for protection or economic security, and who lack the skills and knowledge to which I have already referred, may often fall prey to those in the community who for reasons, whether it be for monetary gain, or even altruistic reasons, provide “assistance” which in reality is not helpful at all to the applicant.
Considerations
Ground 1
In any event, turning to the grounds as pleaded and on which the applicant seeks to rely and base her case before this Court, ground 1 asserts that the decision involved an important exercise of the power conferred by the Act. That is exactly correct. But such an assertion plainly is not an assertion of error, let alone jurisdictional error, on the part of the Tribunal.
Ground 2
Ground 2 asserts an error of law. This is said to be an incorrect application of the law to the facts found by the Tribunal. If taken on its own, this does not assist the applicant. When read in context of what follows, although they may be generally described, at best, as “particulars”, are not particulars that support the assertion made in the actual ground.
Turning, therefore, to these “particulars”. The applicant refers to the Tribunal’s report, in its decision record, that at the hearing before the Tribunal she stated that she had not practiced Falun Gong at all for the four months that she was in Brisbane (she refers to [72]). Having moved there from Sydney where the Tribunal had reported that she had said that she had practiced Falun Gong.
The applicant then refers to the existence of a recording of the hearing before the Tribunal. She asks the Court to refer to a certain part of that recording, said to be contained in a “disc”, where she then, in any event, sets out what is said to be an extract from that recording. As best as it can be understood, it appears that the complaint is that the Tribunal’s account of what she said at the hearing in relation to her practice of Falun Gong in Brisbane is not an accurate reflection of what she claimed to have said.
There are at least two answers to this complaint.
At the first Court date before this Court, the applicant was given the opportunity to put evidence before the Court. She also took the opportunity given to her to access the “RRT Legal Advice Scheme”. This, at the very least, would have provided the applicant with the further opportunity to find out how to go about putting evidence before the Court in some proper context. What the applicant now asserts in her pleading is, of course, not evidence. It is not open to this Court to draw inferences about what may otherwise be said to have been said, or to have occurred, at the Tribunal hearing in the absence of evidence. See NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241.
Therefore, one complete answer to the applicant’s complaint is that, without evidence in support, the complaint or “ground” cannot succeed.
Second, nor did I see it as necessary to listen to the disc of the hearing, even at the part indicated by the applicant, when regard is had to what is set out in the pleading as allegedly having been said at the hearing before the Tribunal. The claimed extract reveals that the applicant said to the Tribunal that she did not practice in Brisbane for twenty days when she first arrived because she did not have time to practice. Other than as to the length of time, this, on its own, is certainly consistent with what the Tribunal reported as having been said at the hearing (see [72]). As for the remainder of the extract, it is not clear when the applicant went to Sydney, and when she returned to Brisbane.
What is tolerably clear, however, is that she took some time to become familiar with the environment and the people, and it was only after the expiry of some unspecified time that she continued her practice again. In context, this appears to be the Falun Gong practice she engaged in in Sydney, which the Tribunal had accepted had occurred. On her own reported account, as set out in her application to the Court, the Falun Gong activity appears to have resumed, but only some time later, after the twenty days in Brisbane.
This is not inconsistent with what the Tribunal reported had occurred at the hearing. That is, that there was a period, greater than the initial twenty days, when she did not practice in Brisbane. There is nothing in the applicant’s account, as put in her own extract, to say that it was not for the four month period that the Tribunal identified in its report of what occurred at the hearing.
Further, the Tribunal’s account reports the applicant as having said that, at the time leading up to the hearing, she had been listening to Falun Gong tapes, practiced at home and read relevant books. Her reported evidence to the Tribunal, in the Tribunal’s account, is that she had not brought these tapes or the Falun Gong book from Brisbane with her.
It must be said that, on even the best reading, what the applicant reports as being on the relevant disc is confused. Importantly, if this is the best that the applicant can put, then it does not contradict the Tribunal’s understanding as set out at paragraph 72 of its decision record. Therefore, this complaint, while not being an example of an incorrect application of the law to the facts as found by the Tribunal, even if treated as a separate complaint, is not made out. There is no evidence to support the complaint, and what is set out in any event does not reveal any misunderstanding or misrepresentation of what she told the Tribunal.
Additional Consideration
Before I leave the two grounds as stated, and the “third” complaint, if I can put it that way, I note the Minister’s written submissions at paragraph 13, directed to the two grounds as identically stated before Barnes FM in SZLYK. I respectfully agree with what her Honour said in relation to these two formulaic grounds (at [18] to [20]):
“The first ground is merely a statement that: ‘The decision involved an important exercise of the power conferred by the Migration Act and Regulations’. It neither raises, nor establishes, jurisdictional error.
The second ground is that: ‘The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent’. The only issue raised by the applicant in oral submissions was the fact that the tribunal had concluded that what she said was false. She asked rhetorically what kind of evidence did the Tribunal have to say that she was not a genuine Falun gong practitioner or not telling the truth.
In so far as this may be taken as a contention that the Tribunal was under an obligation to accept the applicant’s claims or as a suggestion that the proceedings before the Tribunal were adversarial, as pointed out by Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]: ‘Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.’ The Tribunal must then decide whether that claim is made out (also see Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78], indicating that: ‘The function of the Tribunal… is to respond to the case that the applicant advances’). As Beaumont J stated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 the Tribunal is not required to engage in an uncritical acceptance of any and all allegations made by an applicant and it is not required to accept a claim merely because positive evidence to the contrary is absent.”
I cannot otherwise see error in the Tribunal’s decision. First, I note that the Tribunal’s treatment of the claimed conduct in Australia, and its application of s.91R(3), is consistent with the most relevant High Court authority in relation to this issue, see Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40.
Second, the applicant attended a hearing before the Tribunal. Following the delegate’s decision, the applicant would have been on notice that the credibility of her factual account of what she said had occurred in China was at issue. Bearing in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515, about the Tribunal’s procedural fairness obligations pursuant to s.425 of the Act, what arose from the delegate’s decision would have been sufficient to have put the applicant on notice as to the issue that ultimately determined, and disposed of, her matter before the Tribunal. That is the credibility of her factual account of what she said had occurred in China.
As I said earlier, the Tribunal’s account of what occurred at the hearing remains unchallenged before this Court by any evidence to the contrary. Based on that account, it is quite clear that the Tribunal squarely raised its concerns with her evidence at the hearing (see in particular what is set out at paragraphs 47, 48, 51 and 54 to 56 of its decision record). The Tribunal, in my view, complied with its procedural fairness obligations in addition to what had arisen as a result of the delegate’s decision.
Third, in relation to the Tribunal’s finding that her account, the relevant factual account, was not credible, such findings are clearly within the proper exercise of the Tribunal’s jurisdiction, see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 per McHugh J. Findings of fact, including findings on credibility, are for the Tribunal to make as the decision maker “par excellence”. In the absence of anything to the contrary, this case fits squarely within what was said by his Honour in that case.
Fourth, the relevant statutory regime that applies to matters of this type, and I refer here in particular to that part of the regime expressed in s.65 and s.36(2) of the Act, requires the Tribunal to reach a requisite level of satisfaction that the applicant, in effect, meets the definition of “refugee” as set out in Article 1(A)(2) of the UN Refugees Convention.
In doing this, the Tribunal, as was, in my respectful view, plainly said by Barnes FM in SZLYK, is not bound to uncritically accept any or even all of what an applicant says to it. Ultimately, the Tribunal, having listened to the applicant’s evidence, made findings of fact which were open to it on what was before it, and for which it gave cogent, and it must be said, comprehensive reasons. No error is, in my view, revealed in this regard.
The applicant also told the Court today that the Tribunal decision was “unfair” because it did not believe her to be a Falun Gong practitioner. I have already dealt with the second part of that assertion. As to notions of fairness, it is the case that sometimes, in applying the law, outcomes may indeed not seem to an applicant to be fair. What needs to be emphasised is that notions of fairness certainly apply to the procedures adopted and applied by the Tribunal. But that a description, by an applicant, of the Tribunal’s conclusion, or the outcome, as being unfair does not on its own reveal jurisdictional error. As was said by the High Court in s the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25]) (with reference also to Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35 to 36 per Brennan J), a “fair hearing not a fair outcome”.
Conclusion
For the applicant to succeed before the Court today, the Court, at the very least, would have to find jurisdictional error on the part of the Tribunal. As I cannot see any such error arising from what has been put before the Court, I will make an order dismissing the application made by the applicant.
Costs
I will make an order for costs in favour of the Minister. As to the amount that is sought, $5,500, I note that that is within the amount that is set out in the relevant Schedule to the Rules of this Court, which in my view set out a good guide as to, in general sense, what is a reasonable amount. Quite independently of that, having regard to the work that has been done by the Minister’s legal representatives in responding to the applicant’s application, I am satisfied that the amount sought is, in those circumstances, a reasonable amount, and I will make the order in that amount.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: D Nestor
Date: 15 January 2010
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