SZOAL v Minister for Immigration
[2010] FMCA 348
•12 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAL v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 348 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act1958 (Cth), ss.91R(3), 422B, 425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 |
| Applicant: | SZOAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2783 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 12 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2010 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2783 of 2009
| SZOAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for a review of the decision of the Refugee Review Tribunal dated 15 October 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in April 2009 and applied for a protection visa. In a statement accompanying the protection visa application, the applicant claimed that she started to practise Falun Gong in China in 2000 in order to alleviate health problems. She claimed she practised “at the place of Falungong gathering”, but when she heard that Falun Gong practitioners had been tortured and died she practised Falun Gong at “home”. She claimed that “[s]ometimes, while [she] went to the Park or other public Falungong gathering, [she] was always worried too much”. She claimed that as she “could not communicate with Falungong practitioners [she] was depressed and felt unhappy”. She decided to leave China.
The applicant was invited to intend an interview with a departmental delegate but did not do so although she subsequently provided a medical certificate. The application was refused by the delegate of the first respondent and the applicant sought review by the Tribunal. She attended a Tribunal hearing and provided the Tribunal with photographs in relation to Falun Gong activities in Australia.
In its reasons for decision the Tribunal set out the applicant’s claims in her protection visa application and her evidence at the Tribunal hearing. The Tribunal reasons for decision constitute the only evidence before the court of what occurred in the Tribunal hearing. I will return to the Tribunal account of what occurred at the Tribunal hearing when considering the grounds of this application.
Relevantly, for detailed reasons which it gave, the Tribunal found that the applicant was not a witness of truth in respect of her claimed practice of Falun Gong in China, the problems she experienced in China as a result and her reasons to fear returning. The Tribunal did not accept that the applicant had ever practised or been involved with Falun Gong in China. In particular, it did not accept the applicant’s late claims that she had a teacher of Falun Gong who was her neighbour who was arrested and detained from 2004 to 2008. It did not accept her claim (made at the hearing) that she was detained and questioned by police at the end of 2004 on suspicion of being a Falun Gong practitioner but was released for lack of evidence. It did not accept that she had suffered health or other problems that had adversely affected her memory because of her detention and questioning by the police, or that the police subsequently visited her three to four times a year to question and check on her. Nor did it accept that she had had to pay an agent a large sum of money to arrange her passport and Australian visitor visa because she had come to the adverse attention of the police in China on account of suspected Falun Gong practice and that the police held adverse records on her.
In reaching such findings the Tribunal gave a number of reasons. It found “the applicant’s evidence regarding her claims to have practised Falun Gong in China since 2000 [was] problematic in a number of respects”. While the Tribunal accepted that the applicant had demonstrated some knowledge of Falun Gong principles (which it detailed), it found her description of the principles or philosophies underpinning Falun Gong to be “basic, repetitive and lacking important details that would reasonably be expected of a person who had claimed to be practising Falun Gong since 2000”. The Tribunal detailed aspects of its concerns about the applicant’s knowledge of Falun Gong and her level of understanding in relation to matters such as the ultimate aim of the practice of Falun Gong, the contents of the Zhuan Falun, and verses to be recited before Falun Gong exercises, finding that such limited understanding was “adverse to her claims that she had been a Falun Gong practitioner since 2000”.
The Tribunal also expressed concern about the absence in the written statement accompanying the protection visa application of the claim made at the hearing that the applicant was questioned by the police in 2004 and thereafter subjected to police checks three or four times a year. The Tribunal considered that the applicant would have raised such significant claims at the time of her protection visa application if they were true. It found her explanation for the omission (based on her lack of familiarity with the form and the assistance of a student) to be “highly implausible”. It did not accept that the fact that she thought that she could provide details later provided an adequate explanation for omitting such important details of her claim.
The Tribunal also found “that aspects of the applicant’s evidence about the circumstances of her problems with the police [were] highly problematic”. It set out details of contradictions in the applicant’s evidence at the hearing about whether fellow practitioners had told the police about her involvement in Falun Gong. The Tribunal found the conflicting oral evidence of the applicant in this respect and her “implausible explanations [we]re a further strong indication that [she] had not been detained and questioned by the police as claimed” and that these matters “reflect[ed] adversely on her credibility”.
It found that the applicant’s oral evidence about the circumstances of her neighbour who was her Falun Gong teacher, at whose home she claimed to have practised Falun Gong regularly, was conflicting and contained implausibilities. In addition the Tribunal found that the applicant’s evidence about circumstances in which she made her written statement accompanying her protection visa application and the information contained in it reflected adversely on her credibility. It had regard to the fact that in the statement the applicant referred to practising Falun Gong at “home” while orally she said that she meant to refer to her neighbour’s home. The Tribunal also considered the applicant’s evidence that she only practised in private at her neighbour’s home to be inconsistent with her written statement in which she indicated that she practised sometimes in the park. It did “not accept as plausible [her] explanation that perhaps not everything in her statement was true because it was written shortly after her arrival in Australia”. Nor did it accept that such problems “might be the result of memory problems caused by difficulties in sleeping” as a result of the applicant’s claimed detention by the police.
The Tribunal also had regard to the fact that when the contents of the applicant’s visitor visa application were raised with her in the hearing, she acknowledged that false information and/or documents relating to her employment history had been provided to obtain her Australian visa. The Tribunal concluded, however, that “any false information and documentation submitted… [was] provided… to facilitate obtaining a visa for Australia to which the applicant may otherwise not have been entitled”. It did not accept that the “applicant arranged for the provision of such information and documentation for any reason connected with her practice of Falun Gong” and the problems she claimed she had experienced in China.
The Tribunal considered the applicant’s evidence that she had practised Falun Gong in Australia and “participated in a public demonstration in May 2009”. It accepted from the photographic evidence she provided that she attended a Falun Gong demonstration in Sydney in May 2009 and, in light of evidence including the limited knowledge of Falun Gong demonstrated by the applicant, accepted that the applicant had practised Falun Gong on occasions since coming to Australia. However it concluded that the applicant had “taken steps in Australia to acquire” her knowledge of Falun Gong. It found her evidence about her practise in Australia contained some “highly problematic” aspects and raised “serious doubts about [her] motivation” for her conduct in Australia with respect to Falun Gong.
The Tribunal referred to internal inconsistencies in the applicant’s oral evidence about attendance at a Falun Gong practice group and a lack of credibility in her claim that her family in China became aware of her attendance at the May 2009 Falun Gong demonstration. The Tribunal found that her evidence on this issue was “an attempt to create a situation where her activities in Australia may have increased the risk of problems she might face if she returned to China”. It found that the applicant’s failure to practise Falun Gong during a period when she had stayed in Moree was highly adverse to her claims to be a Falun Gong practitioner since 2000 who came to Australia to “practice Falun Gong freely”. It found her claimed reasons for failure to practise, including the lack of a DVD player, not to be credible and to lack logic. The Tribunal concluded that “the applicant did not practise Falun Gong… [whilst] in Moree because she was not and is not a genuine Falun Gong practitioner”
Having regard to its adverse findings about aspects of the applicant’s evidence about Falun Gong practice in Australia and to circumstances in China and her credibility generally, the Tribunal found that the applicant did not satisfy it that she had engaged in conduct in Australia relating to Falun Gong otherwise than for the purpose of strengthening her claims to be a refugee. It disregarded such conduct in Australia, pursuant to s.91R(3) of the Migration Act1958 (Cth).
The Tribunal went on to find that it did not accept that the applicant had ever been a genuine Falun Gong practitioner and, hence, did not accept that she would be involved in practising Falun Gong in China in any way on her return. Nor did it accept that she would be “imputed as a Falun Gong practitioner if she return[ed]”.
The Tribunal did not accept that there was a real chance that the applicant would be persecuted for actual or imputed practise of or involvement in Falun Gong if she returned to China now or in the reasonably foreseeable future, whichever Convention ground such a claim was regarded as falling under. Hence the Tribunal concluded that it was not satisfied on the evidence that the applicant held any well-founded fear of harm for a Convention reason should she return to China.
The applicant sought review by application filed in this court on 13 November 2009. The application contains three grounds. The applicant did not file any written submissions elaborating on these grounds, but made oral submissions to which I will return.
The first ground in the application is that the Tribunal did not take into account the applicant’s “real situation in China” and did not consider her application “fairly”. This might be said to overlap with the third ground, in which the applicant claimed that she was “not satisfied with” the Tribunal decision and that it was “not fair”. Insofar as the applicant submitted that the Tribunal did not take into account her real situation in China, such a claim seeks merits review which, as I endeavoured to explain to the applicant, is not available in this court. Insofar as this might be seen as a contention that the Tribunal failed to have regard to an integer of the applicant’s claims, no such failure is apparent on the material before the court. Rather, it is apparent that the Tribunal understood and considered the applicant’s claims, both as presented in writing and orally, and addressed those claims in its reasons for decision.
The applicant’s general contention that the Tribunal did not consider her application fairly is not made out. I note the operation of s.422B of the Act and that there is nothing in the material before the court to indicate any failure by the Tribunal to comply with the requirements of Division 4 of Part 7 of the Migration Act. In particular, there is nothing in the material before the court to indicate any breach of s.425 of the Migration Act, a matter relevant to the second ground in the application which is that the Tribunal did not give the applicant “more chance to explain their doubts” and claimed that she would “be put in jail if [she] return[ed] to China”. The latter part of this ground seeks merits review. The former part and the applicant’s oral submissions take issue with the Tribunal’s conduct of the hearing and its findings based on the applicant’s evidence at the hearing.
In oral submissions the applicant elaborated on these concerns, in particular taking issue with the fact that the Tribunal had asked her to elaborate on her claims at the hearing and, when she did so, had found that there were inconsistencies between her written and oral claims. She endeavoured to provide an explanation to the court that she had been nervous, that some things had been forgotten and that while she said things in a different way, she was saying the same thing.
The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. Those reasons do not indicate any failure by the Tribunal to comply with s.425 (in particular, its obligation to raise with the applicant dispositive issues). There was nothing improper constituting jurisdictional error in the Tribunal seeking clarification and elaboration of the applicant’s claims. It was open to the Tribunal on the evidence before it, to find that there were inconsistencies in her evidence. It is apparent that the Tribunal raised such inconsistencies with the applicant and gave her an opportunity to provide an explanation for such inconsistencies.
The fact that the Tribunal found that there were such inconsistencies and did not accept the applicant’s explanations in that respect does not establish jurisdictional error. Indeed, even if another decision-maker may have reached a different conclusion on the material before the Tribunal, that of itself does not establish jurisdictional error. Having set out, at length, the applicant’s evidence, the Tribunal gave detailed reasons for its conclusions which are not indicative of jurisdictional error. It is well-established that credibility findings are a matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1) and the Tribunal findings in that respect were open to the Tribunal on the material before it for the reasons that it gave.
While not expressed in those terms, insofar as the applicant’s claims about a lack of fairness might be seen as raising an allegation of either actual or apprehended bias, neither is made out on the material before the court. It is a rare and exceptional case in which actual bias will be established on the basis of the Tribunal reasons for decision alone. This is not such a case. Actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 is not made out. There is nothing to suggest that the Tribunal had a state of mind in the form of prejudgment so committed to a conclusion already formed as to be incapable of alteration. On the contrary, the applicant was given the opportunity to address matters of concern properly raised with her in the course of the hearing.
Nor are the circumstances such as to establish apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28) from the perspective of the appropriately informed, fair-minded lay observer. The evidence is not such as to demonstrate that such an observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to resolution of the issue before it.
The Tribunal considered the evidence before it and was unable to reach the requisite state of satisfaction that the applicant met the requirements for the visa (see SJSB v Minister forImmigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208) and in those circumstances no jurisdictional error is established in the Tribunal’s failure to be satisfied that the applicant met the criterion for the class of visa for which she had applied.
The other matter raised by the applicant in oral submissions (apart from matters which sought impermissible merits review) was a claim that while the Tribunal said that she did not practise Falun Gong, she was now practising Falun Gong. The Tribunal specifically considered the applicant’s claims about her practise of Falun Gong in Australia and accepted some, but not all, of the applicant’s evidence in that respect. However in accordance with s.91R(3) of the Migration Act it disregarded the applicant’s conduct in Australia in assessing whether she had a well-founded fear of persecution for a Convention reason as, for the reasons it gave, it found that the applicant had not satisfied it that she had engaged in conduct in Australia relating to Falun Gong otherwise than for the purpose of strengthening her claims to be a refugee. No jurisdictional error is established arising from the Tribunal findings in that respect.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4,200. The applicant claimed that nobody told her about this. I note that I did not conduct the directions hearing in this matter at which the applicant signed a translated information form advising her of the possibility of a costs order. In any event her submission is not in all the circumstances a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 24 May 2010
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