SZOBG v Minister for Immigration
[2010] FMCA 225
•23 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOBG v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 225 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – lack of procedural fairness not proved – bias on the part of the Tribunal not proved. |
| Migration Act 1958, ss.422B, 424A, 425, 429A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZOBG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2988 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 March 2010 |
| Date of Last Submission: | 23 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2988 of 2009
| SZOBG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was detained and beaten by the authorities because she is a Falun Gong practitioner.
The applicant claims to fear persecution in China because she is a Falun Gong practitioner.
After her arrival in Australia on 8 May 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 17 September 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 71 – 74). I now summarise relevant factual allegations.
Primary application
In her visa application, the applicant made the following claims:
a)she was born in Jilin Province in 1980;
b)she completed nine years of education in 1997 and worked in a beauty parlour from 1997 to 2009;
c)she was introduced to Falun Gong by a colleague’s mother and began practising in 2006 because it assisted her with insomnia. She practised by herself in her home;
d)on 20 November 2008, while she was practising Falun Gong at her home, five police officers burst into her house and forcibly took her to a police station where she was interrogated and beaten. She admitted she was a Falun Gong practitioner, signed a statement to that effect and was permitted to leave after paying a 5000 Yuan fine and making an undertaking not to practise Falun Gong again;
e)she learnt that the person who introduced her to Falun Gong had also been detained and assumed that the latter had informed the police that the applicant was a Falun Gong practitioner;
f)when she stopped practising Falun Gong her health deteriorated and so she resumed her involvement; and
g)she was fearful that the authorities would discover that she was practising Falun Gong so she decided to flee the country.
Tribunal hearing
At the Tribunal hearing, the applicant made the following additional claims:
a)when detained on 20 November 2008, she was held by the police overnight;
b)she had no involvement with Falun Gong groups or public activities in Australia. She practised by herself at her home; and
c)she initially stated that she avoided joining Falun Gong groups and public activities because she had heard that PRC spies operated in Sydney. She said that she was afraid that her Falun Gong activities would be reported to the Chinese authorities and that her relatives in China would be targeted. She later stated that she did not have time to participate in Falun Gong groups because of her work commitments. On one occasion she had practised with a group in Auburn but then she moved to Parramatta and could not find any groups there.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant’s claim that she is a Falun Gong practitioner lacked credibility and formed the view that the applicant is not a genuine Falun Gong practitioner because:
i)the Tribunal was of the view that a genuine Falun Gong practitioner would be able to discuss their beliefs and principles and indicate how they apply those beliefs and principles. The Tribunal was not satisfied that the applicant had any interest in Falun Gong or that she applied any of its beliefs and principles, noting that her evidence in this regard was vague, confused and superficial;
ii)the applicant was not involved with the Falun Gong movement in Australia;
iii)the Tribunal did not accept as credible the reasons the applicant gave as to why she has not been able to access Falun Gong activities in Australia. It formed the view that a genuine practitioner can easily and safely be involved with the Falun Gong movement in Australia; and
iv)it found that she fabricated the claim to enhance her protection visa application;
b)in view of the finding that the applicant was not a genuine Falun Gong practitioner, the Tribunal was not satisfied that:
i)the applicant’s claim that she was detained and mistreated by the Chinese authorities because she was practising Falun Gong was credible; or that
ii)the applicant practised Falun Gong in China, finding that the applicant contrived the claim to enhance her protection visa application; and
c)the Tribunal was not satisfied that the applicant would have any involvement with Falun Gong in the reasonably foreseeable future which would attract the adverse interest of the Chinese authorities.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)Since 2006 I started practicing Falun Gong because it can assist me with insomnia. My colleague’s mother introduced me to practice Falun Gong. On 20 November 2008, while I practiced Falun Gong, five police burst into my house and forcibly took me to the police station where I was interrogated and beaten. I was fined for TMB 5000 yuan. When I stopped practicing Falun Gong, my health deteriorated and I had to resume my practice. I fear that the PRC authorities would discover my practicing of Falun Gong so I decided to flee to Australia. The Refugee Review Tribunal was not satisfied that my claims were credible. I think the Tribunal’s decision is not fair. The Tribunal had bias against me. I request that the Judge of the Federal Magistrates Court will return my case to the Tribunal for further determination.
Tribunal decision not fair
The allegation that the Tribunal’s decision was not fair is not particularised and, as a consequence, may encompass many potential complaints. One of these is that the alleged lack of unfairness is a manifestation of bias. To the extent that this is so, issues of bias will be dealt with separately later in these reasons.
Another potential meaning of the allegation that the Tribunal’s decision was not fair is that it was reached in an unfair manner or in breach of the rules of natural justice. If that is so, it must first be noticed that the natural justice hearing rule is, by s.422B of the Act, codified in ss.422B to 429A of the Act, namely div.4 of pt.7. The applicant has not pointed to any of these provisions and said that the Tribunal has failed to meet the obligations which they impose on it. Further, a review of the Tribunal’s decision record does not suggest any such breach.
The principal provisions of div.4 of pt.7 of the Act are ss.424A and 425. Relevantly, s.424A provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
It is apparent that the information relied on by the Tribunal in affirming the delegate’s decision was information which the applicant supplied in writing to the Minister’s department and information which the applicant supplied to the Tribunal for the purposes of its review. Section 424A(3) provides that information from those sources is not required to be notified to an applicant pursuant to s.424A(1). Consequently, no breach of the notification obligations imposed on the Tribunal by s.424A(1) is disclosed.
Section 425, relevantly, provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant was invited to a hearing which she attended. Further, the Tribunal’s decision record makes it clear that the Tribunal identified to the applicant the issues arising in relation to the decision under review. In particular, it put its concerns regarding:
a)the plausibility of the applicant’s allegation that the police would have known about her involvement in Falun Gong given that she practised privately and alone at home;
b)the fact that there was a Falun Gong group at Parramatta but the applicant claimed not to have found any Falun Gong groups at Parramatta;
c)the apparent superficiality of her understanding of the basic beliefs and principles of Falun Gong;
d)her lack of involvement with Falun Gong;
e)its concerns that her lack of knowledge of and involvement with Falun Gong pointed to a lack of genuine commitment to Falun Gong; and
f)the possibility that it would not accept her claim to have been targeted by Chinese authorities if it did not accept her claim to be a Falun Gong practitioner as credible.
Ultimately, the Tribunal rejected the applicant’s claim to be a genuine and committed Falun Gong practitioner and was not satisfied of her general credibility. This was the essence of its decision and the basis upon which it reached these views were put to the applicant in clear terms at the Tribunal hearing. It might also be noted in this connection that in her decision of 17 September 2009 the Minister’s delegate had stated:
I cannot be satisfied that the applicant’s claim of being a committed Falun Gong practitioner in China is credible and that her circumstances in this regard are as claimed. (CB 46)
And:
I cannot be satisfied that the applicant’s claims of her being arrested and detained are credible and that her circumstances are as claimed. (CB 47)
In all the circumstances, no breach of s.425 is apparent nor is it apparent that the Tribunal has failed to satisfy any other obligations imposed on it by the other provisions of div.4 of pt.7 of the Act.
Finally in connection with the first ground of the application, the allegation that the Tribunal’s decision was not fair may be no more than a complaint that the Tribunal did not reach a finding favourable to the applicant. In this regard it must be noted that the task of making findings on the merits of review applications is reposed exclusively in the Tribunal. Such findings may not be reviewed by the Court unless they have jurisdictional content or somehow manifest a denial of natural justice. Subject to the following discussion on the allegation of bias, neither is the case here. Moreover, the intermediate findings of fact on which the Tribunal’s decision was based were open to it on the evidence and do not disclose that they were the product of a want of procedural fairness. That being so, these findings were matters solely for the Tribunal.
In the circumstances, the Court has no power to review the Tribunal’s finding on the merits of the review application. For all these reasons, the first ground raised in the application does not disclose jurisdictional error on the Tribunal’s part.
Bias
The allegation of bias is not particularised and so it is not known whether the applicant alleges actual bias or apprehended bias. Further, no evidence was adduced by the applicant which might have given some clarity to this issue; in particular, no transcript of the Tribunal hearing was placed before the Court so it might consider the conduct of the Tribunal hearing by the presiding member.
The only evidence before the Court which touches on the allegation of bias is the Tribunal’s decision record, contained in the Court Book, which is exhibit A. Consideration of the Tribunal’s decision record discloses neither a mind so committed to a conclusion already formed that it would be incapable of alteration nor conduct from which a fair minded lay observer, properly informed of the nature of the proceedings, the matter in issue and the conduct said to give rise to an apprehension of bias, would reasonably apprehend that the Tribunal might not bring an impartial mind to the matter to be decided.
Rather, the Tribunal demonstrated a conscientious intention to afford the applicant a proper hearing and the opportunity to make out her claim. The Tribunal’s questioning of her and the concerns that it put to her do not point to bias. The issue is not whether the Tribunal’s mind is completely void of impressions or views, but whether it is open to persuasion. I am satisfied, based on what is contained in its decision record, that it was.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 March 2010
1
1