SZOEO v Minister for Immigration
[2010] FMCA 364
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOEO v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 364 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – matter turns on its own facts. |
| Migration Act 1958, ss.36, 65, 91R, 425, 474 Migration Regulations 1994, pt.866 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZOEO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 443 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 May 2010 |
| Date of Last Submission: | 18 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 443 of 2010
| SZOEO |
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 a Falun Gong practitioner. She claims that she was also involved in underground Falun Gong activities and that this subsequently led to her being arrested by the police.
The applicant claims to fear persecution in China because she is a Falun Gong practitioner.
After her most recent arrival in Australia on 20 May 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 5 June 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 – 8 of the Tribunal’s decision.
In a statement attached to her protection visa application, the applicant claimed that:
a)she was a Falun Gong practitioner in China and was also involved in underground Falun Gong activities. She put up posters and preached about Falun Gong;
b)one evening she and a fellow practitioner were caught by the police putting up posters. They were taken to the police station where they were beaten, detained and forced to watch anti-Falun Gong videos. She wrote a repentance statement, paid a fine and was then released;
c)she could not find a job as no one wanted to employ a Falun Gong practitioner; and
d)she was harassed and monitored by the police and was required to report to the police station regularly.
The applicant appeared before the Tribunal on 2 September 2009 when she made the following additional claims:
a)she first came to Australia in October 2006 to visit her son. She practised Falun Fong while she was here but did so privately at home because she did not know her way around and did not speak English;
b)she started practising Falun Gong in China in 2000. Shortly afterwards, in January, she was caught putting up posters and was arrested by the police. She was detained for fifteen days and was then placed under surveillance after her release. That surveillance decreased in 2002. However, when she returned to China following her first trip to Australia, she was again placed under surveillance as the authorities suspected her of practising Falun Gong;
c)she was in hiding prior to her departure from China in May 2007;
d)she found out about the availability of protection visas through friends and colleagues about three months after arriving in Australia for the second time in May 2007. She was determined not to return to China but did not apply for a protection visa until March 2009 because she did not know how to do it; and
e)she went to her first public gathering in Australia in August 2007, after the expiry of her visa. She did not practise with others prior to this because she could not get over what had happened in China and she did not go out.
The applicant was supported at the hearing by two witnesses, both of whom attested to the applicant’s practice of and involvement in Falun Gong in Australia.
The applicant also provided the Tribunal with a number of supporting statements, including a statement from her husband and a statement from one Ms W, described as the person with whom the applicant was arrested and detained in China in 2000.
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)in the Tribunal’s view, had the applicant genuinely feared harm in China for the reasons she claimed, she would have sought protection in Australia earlier than she did, in March 2009. In reaching this conclusion the Tribunal noted that the applicant arrived in Australia for a second time in May 2007, the visa she held expired in August 2007, she gave evidence that she knew about the availability of protection visas some three months after her arrival and she did not give a reasonable explanation for the delay in seeking protection;
b)the applicant claimed that she was of such interest to the Chinese authorities that she was monitored by them until 2002 and again from January 2007, yet she was able to depart China using a passport and visa in her own name. In the Tribunal’s view, this was not consistent with country information which indicated that the applicant would have had difficulties departing China had the authorities been interested in her to the extent that she claimed;
c)the Tribunal did not accept that the applicant was “in hiding” prior to her departure from China in May 2007, noting that she had not made this claim previously and would have done so had it been true;
d)in the Tribunal’s view, had the applicant been a genuine and committed Falun Gong practitioner, she would have been involved in public Falun Gong activities in Australia and would have practised with others prior to August 2007. In this connection the Tribunal accepted that the applicant did not speak English and did not know her way around when she first came to the country. However, in the Tribunal’s view this was not a reasonable explanation as the applicant had contacts in Australia (i.e. her son and her sister) who could have helped her gather the relevant information;
e)given the Tribunal’s finding that the applicant had been untruthful in her claims, as well as the fact that her husband clearly had an interest in the outcome of the application, the Tribunal did not consider the statements of support provided by the applicant’s husband or Ms W to be reliable;
f)the Tribunal gave no weight to the evidence of the applicant’s witnesses to the extent that they related to the applicant’s claims about what had happened to her in China. The Tribunal found that while the witnesses may have given truthful accounts of what the applicant had told them, it did not accept that the applicant was a credible witness and, consequently, did not accept that the applicant’s comments to those witnesses were true; and
g)the Tribunal was not satisfied on the evidence before it that the applicant practised or was involved in Falun Gong activities in Australia otherwise than to strengthen her claim to be a refugee. It therefore disregarded that conduct pursuant to s.91R(3) of the Act.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal and the primary decision maker erred in failing to recognize the principle of non-refoulment contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).
(2)The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lake of bona fides.
(3)The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.
(4)The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958
(the Act) Part 8.
At the hearing, the applicant also alleged that, before the Tribunal, her mind had been blank because she was very nervous. After the hearing, but without leave, the applicant filed further written submissions saying that she had been so nervous when appearing before the Court that she could not explain herself well. Those submissions were accepted for filing and the Minister given leave to file further written submissions of his own.
Non-refoulment
The applicant’s allegation that the Tribunal failed to recognise the principle of non-refoulment depends on the Tribunal having found that the applicant had a well-founded fear of persecution for a Convention reason in China. It made no such finding. Rather, the Tribunal rejected the applicant’s essential claims, concluding that she had given it untruthful evidence. Its view was that there was no plausible evidence before it that the applicant had suffered or would suffer persecution in China for any Convention reason were she to return there. In such circumstances, there was no cause for the Tribunal to consider Australia’s non-refoulment obligations beyond its discussion of Australia’s protection obligations in the early part of its decision record. Consequently, the first ground alleged in the application is not made out.
Bona fides
The second ground pleaded in the application is drawn in such a way as to apparently allege that the Tribunal erroneously found that the applicant lacked bona fides and also that the Tribunal itself lacked bona fides. As to the first element, the Tribunal’s conclusions on the applicant’s credit and the general truthfulness of her claims were factual findings which were within its exclusive power to make. Given the inconsistencies and improbabilities in the applicant’s claims, it was open to the Tribunal to conclude that she was not being truthful when she claimed to have been a Falun Gong practitioner in China and to have a well-founded fear of further persecution on that account were she to return there. This aspect of the second allegation discloses no jurisdictional error on the Tribunal’s part.
The allegation that the Tribunal itself lacked bona fides is a serious one given that an allegation that a decision-maker did not act in good faith is, in substance and effect, an allegation that the decision-maker acted in bad faith: NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at 217 [16]. Further, as the Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
a)an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;
b)the allegation is not to be lightly made and must be clearly alleged and proved;
c)the presence or absence of honesty will often be crucial;
d)the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review;
e)mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism; and
f)errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
None of the matters discussed in SBBS were referred to by the applicant in submissions. Nor does a review of the Tribunal’s decision record, which is the only evidence before the Court relevant to this allegation, disclose any conduct or reasoning which would even be arguably suggestive of bad faith on the Tribunal’s part. For these reasons, the second allegation made in the application is not made out.
Ground 3
The third ground of the application appears to allege that the Tribunal failed to undertake a bona fide review and that, in the process, it made a general attack on the applicant’s credit. The summary of the Tribunal’s hearing which appears in its decision record does not suggest that the Tribunal confronted the applicant during that hearing in such a way that it could be construed to have been taking up the role of a contradictor of the applicant’s case. While it queried aspects of the applicant’s account and told her that it had to decide if what she claimed was true, this did not amount to the Tribunal doing anything more than discharging its obligations under s.425 of the Act, to put to the applicant any issues which might possibly be determinative of the review in order that she could address them. The fact that the Tribunal ultimately made credit findings which were adverse to the applicant does not amount to an attack on her credit, merely a finding which was open on the evidence. For the reasons already given, that finding is not affected by jurisdictional error.
As to the element of the third ground of the application which raises issues of the Tribunal’s bona fides, for the reasons given earlier in respect of the second allegation in the application, it discloses no error on the Tribunal’s part.
Ground 4
The fourth allegation in the application is meaningless in the terms in which it is drafted but should be understood to be an allegation that the Tribunal erred in some way in the application of the Act or the Migration Regulations 1994 (“Regulations”). The applicant has not identified which provisions of which instrument were misconstrued and, presumably, misapplied. However, it is not apparent that the Tribunal misunderstood its obligations under div.4 of pt.7, which codifies the natural justice hearing rule for the purposes of Tribunal reviews. Nor is it apparent that the Tribunal misunderstood the principal provisions of the Act relevant to the review in question, namely ss.36, 65 and 91R. None of the criteria for the grant of a protection visa set out in pt.866 of sch.2 to the Regulations appear to have any particular relevance to this application apart from the criteria that the applicant make specific claims under the Convention and the Minister be satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, matters which ss.36 and 91R also require the Tribunal to consider. In those circumstances, I do not conclude that the final ground of the application discloses any jurisdictional error on the Tribunal’s part.
Allegation at hearing
As recorded earlier in these reasons, the applicant also alleged that at the Tribunal hearing her mind had been blank because of nerves. Although no evidence was addressed in support of the allegation, it nevertheless raises a question concerning whether the applicant had been afforded a real and meaningful hearing. In considering this allegation, it should be noted that the applicant told the Tribunal, as recorded at para.35 of its decision record, that she could not speak well and that her head went blank. The Tribunal considered this allegation at para.55 of its decision and said that in its view the applicant was
… well able to give her evidence to the Tribunal and provide responses to the Tribunal’s questions when asked.
Moreover, at para.40 of the decision record the Tribunal records that the Tribunal allowed the applicant to submit further information after the hearing closed and that further information was submitted.
It has not been demonstrated that any nervousness which the applicant experienced at the Tribunal hearing was such that she was incapable of making her case or that she was denied a real and meaningful hearing for this reason. Further, if she had had concerns about the quality of her advocacy, she was given an opportunity to put matters to the Tribunal after the hearing and she availed herself of that opportunity. For these reasons, the allegation made at the hearing in these proceedings does not identify a jurisdictional error.
Post-hearing written submissions
In the written submissions the applicant lodged with the Court on 19 May 2010 she firstly sought to explain why she had not applied for a protection visa prior to March 2009. In the submission she also alleged that she had commenced Falun Gong practice in Australia upon her second arrival in May 2007 and had not delayed her Falun Gong practice until August 2007 as the Tribunal found.
In relation to the delay in lodging the protection visa application, the applicant’s written submissions said that this was because she was not good at English and had had no idea of the procedure involved in applying for a protection visa. These allegations essentially repeat allegations which the applicant made to the Tribunal at its hearing. In her written submissions the applicant also said that she would not have been able to afford a migration agent to assist her although her evidence to the Tribunal summarised at para.27 of its decision record suggests that, in fact, she did go to a migration agent. Whatever may be the case, the written submissions only raise matters of fact relevant to the conclusion which the Tribunal reached in relation to the applicant’s delay in seeking a protection visa. As such, they are not matters which disclose jurisdictional error.
As to the further submissions concerning the applicant’s practice of Falun Gong in Australia, the applicant has misunderstood the Tribunal’s findings. It did not find that she did not practise Falun Gong, presumably on a private basis, immediately following her arrival in May 2007. Its concern lay with the fact she delayed practising Falun Gong with others in Australia and delayed being involved with public Falun Gong activities until that time, saying that she had not given a reasonable explanation for that delay. The factual allegations made in the written submissions appear similar to the evidence which the applicant gave to the Tribunal but, even to the extent that they might be different, they can be of no relevance to these proceedings. The Court cannot review the Tribunal’s factual conclusions except in limited circumstances which do not apply here. This also means that the Court cannot take account of any fresh evidence which the applicant might seek to lead on the second issue she raised in her written submissions.
For these reasons, the matters raised by the applicant in her written submissions filed after the hearing do not disclose any reason why the Tribunal’s decision should be set aside.
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-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 June 2010
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