SZOGA v Minister for Immigration

[2010] FMCA 355

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 355

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(1)(b); 91R; 424A(1); 424A(3)(b); 424A(3)(ba); 474; pt.8 div.2; pt.8 div.4

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507

Applicant: SZOGA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 572 of 2010

Judgment of: Emmett FM

Hearing date: 20 May 2010

Date of Last Submission: 20 May 2010

Delivered at: Sydney

Delivered on: 20 May 2010

REPRESENTATION

Applicant in person with Mandarin interpreter

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Ms J. Dinihan, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 572 of 2010

SZOGA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. 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 18 February 2010 and handed down on 19 February 2010.

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).

3. The Applicant arrived in Australia on 15 October 2009, having departed legally from Pudong Airport on a passport issued in her own name and a subclass 580 Student Guardian visa issued on 30 January 2008.

4. On 24 July 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 15 October 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 13 November 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 18 February 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 17 March 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. 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 s.65(1)(b) mandates that the visa application is to be refused.

2. 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”).

3. 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.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by the Chinese authorities by reason of her practice of Falun Gong.

2. She claimed she had practised Falun Gong since 1998. After Falun Gong was banned in 1999 she ceased practising until she hurt her back in 2001. She claimed that she continued to practise in secret from this time. She claimed that, in August 2002, she was detained by police and, following a hunger strike, was “forced to write a guarantee letter and… give up practicing”. She claimed that she was detained and tortured for five months and released in January 2003 upon payment by her husband of 50,000 yuan.

3. In September 2004, the Applicant claimed she was again arrested and detained for four months. She claimed that again she was only released upon payment of 50,000 yuan and was required to report to the police station weekly.

4. The Applicant claimed that she left China in February 2008 and that her husband was questioned by police and threatened with arrest, if she did not return. She claimed she secretly returned to China on 6 October 2008 for nine days to divorce her husband so that he would not be affected by her “past”.

The Delegate’s decision

1. On 1 October 2009, the Applicant was invited to attend an interview with the Delegate on 15 October 2009. The Applicant did not respond to that invitation or attend that interview.

2. On 15 October 2009, 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.

3. The Delegate found the Applicant’s claims to be vague and unsubstantiated. In circumstances where the Applicant did not attend the interview, where she may have been able to provide a full and frank account of her claims to be a refugee, the Delegate was not satisfied that there is a real chance that the Applicant would be persecuted were she to return to China. Based on the information provided in the Applicant’s protection visa application, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution.

The Tribunal’s review and decision

1. On 13 November 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided no further documents in support of her review application.

3. On 3 December 2009, the Tribunal wrote to the Applicant informing her 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 13 January 2010 to give oral evidence and present arguments.

4. On 13 January 2010, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Applicant’s file relating to her application for a Student Guardian visa, the file relating to the Student visa application made by her son, the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal found the Applicant was not a witness of truth.

7. The Applicant’s claims and the decision of the Tribunal are accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “2. The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 24 February 2008. On 24 July 2009 she lodged an application for a protection visa. She claimed that she feared persecution in China because she was a Falun Gong practitioner who had already been imprisoned twice on that account.

   …

   Tribunal’s decision

   5. The Tribunal found that the applicant was a very unreliable witness and did not accept that:

   a. she was a Falun Gong practitioner in China;

   b. she was detained on two occasions in China;

   c. her husband had to secure her release by paying bribes;

   d. she was required to report to the police;

   e. she planned to be involved in any protest in China;

   f. her husband was harassed and threatened by police;

   g. she attends practice sites regularly in Australia;

   h. she was a person of interest to the police; or

   i. she is or will be perceived to be a Falun Gong practitioner on return to China.

   6. The principal reason for the Tribunal’s findings was that the applicant had returned to China in October 2008 and, on one version of her evidence, had a busy schedule of visits to specialists and clinics for her son during her stay. This was inconsistent with any fear of persecution and with any adverse interest in her by the police. In addition, the applicant revealed no knowledge about a basic principle of Falun Gong, xinxing.

   7. On the basis of its findings, the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations and affirmed the delegate’s decision.”.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 22 April 2010, the Applicant attended a directions hearing before me 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. At that time, the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which she may wish to rely was verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake going to the jurisdiction of the Tribunal.

3. At the directions hearing, the Applicant was referred 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 Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents, headed in her own language.

4. At the directions hearing, the Applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that would follow for her if a costs order was made against her. I then confirmed with the Applicant that she wished to continue with her application.

5. No further application, evidence or submissions were filed by or on behalf of the Applicant.

6. At the commencement of the hearing, the Applicant confirmed that she relied on the grounds contained in an application filed on 17 March 2010 as follows:

   “1. The Tribunal failed to carry out its statutory duty.

   2. Tribunal Member could not demonstrate that I do not face a risk of being suffered essentially if return to China.

   3. The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required to observe.”

7. The grounds of the Applicant’s application make bare assertions that do not disclose an error capable of review by this Court.

8. 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.

9. In support of ground 1, the Applicant said that the Tribunal could not guarantee that she would not be persecuted if she went back to China and that she had heard that some Falun Gong practitioners, who had been sent back to China, were detained upon arrival. For the reasons referred to below, the Applicant’s complaint that the Tribunal failed to observe a procedure, was not made out.

10. The Applicant made no submissions in support of ground 2. I accept the submission of counsel for the first respondent that ground 2 presupposes that the Tribunal has the onus of disproving an applicant’s claims. It is well established that it is for an applicant to satisfy the decision maker that the applicant meets the criteria for being a refugee. The Tribunal must then decide whether an applicant’s claim is made out (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579 per Gummow and Hayne JJ). If the Tribunal is not so satisfied, s.65(1)(b) of the Act mandates that the Tribunal must refuse to grant the visa.

11. In support of ground 3, the Applicant said that she had gone back to China in October 2008 to get a divorce and whilst there she sought medical attention for her son. I asked the Applicant if she could tell the Court what procedures she said the Tribunal failed to observe. The Applicant was unable to make any meaningful response. For the reasons referred to below, the Applicant’s complaint in ground 3, that the Tribunal failed to observe a procedure, is not made out.

12. The Tribunal’s conclusion that the Applicant was not at risk of harm in China for a Convention-related reason was made following, what appears to be, a thorough exploration of the Applicant’s claims at a hearing before the Tribunal. The Tribunal’s decision record makes clear that the Tribunal put to the Applicant matters of concern it had about her claims and evidence and noted her responses.

13. Ultimately, the Tribunal found the Applicant to be “a very unreliable witness” and found that her claims “are not credible”.

14. The Applicant’s conduct, in returning to China in October 2008 for nine days, was of particular concern to the Tribunal. The Tribunal accepted the Applicant’s evidence at the hearing that, whilst in China, she had several specialist appointments and hospital visits with her son over that period. The Tribunal found that such conduct did not suggest the Applicant feared to go out of the house for any reason, as she had claimed elsewhere in the hearing. The Tribunal also found that such conduct indicated that her close family member had access to comprehensive medical treatment. The Tribunal found those factors were not consistent with the actions of a person who has an adverse profile, is wanted by police, is believed to be a Falun Gong practitioner or is otherwise being sought by police for failing to comply with reporting conditions.

15. The Tribunal also found that the Applicant had not been a Falun Gong practitioner in China or that she had been detained, as claimed. The Tribunal found the Applicant’s knowledge of Falun Gong to be “scant”. The Tribunal noted that it asked the Applicant about xinxing, being a basic principle fundamental to Falun Gong belief and practice. The Tribunal found the Applicant was unable to explain the concept to the Tribunal. The Tribunal rejected the Applicant’s explanation of her failure to explain because of her poor education. The Tribunal noted the Applicant’s information provided in her protection visa application that she had a long history as a small business owner in China.

16. 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).

17. During the hearing before the Tribunal, the Tribunal put to the Applicant information provided by her in a student guardian visa application, filed by her on 26 June 2007, that she had provided a certificate to the effect that she had no criminal conviction in China and asked her about the certificate. The Tribunal noted her answer that the certificate had been organised by her agent. Whilst that information was not information given by the Applicant to the Tribunal for the purposes of her review, it was not information that was inconsistent with claims made in her protection visa application. In answer to question 6 in Part B of her application for a protection visa, the Applicant answered, “No”, to the question, if she had ever “committed or been convicted of a crime or offence in any country”. That was not information that was capable of being a “rejection, denial or undermining” of the Applicant’s claim to be a person to whom Australia owed protection obligations. In her written claims, the Applicant claimed to have been arrested and detained in China but not arrested and convicted (see SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609; (2007) HCA 26 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (“SZBYR”); Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507at [22] and [26]).

18. The other information contained in the Applicant’s student guardian visa application referred to by the Tribunal, was that the Applicant owned and ran a restaurant in China with her husband from which she derived significant income from 2000 to 2007. Similarly, that was not information that contained in its terms a rejection, denial or undermining of the Applicant’s claims to be a person to whom Australia owed protection obligations. Nothing in those claims was adverse to the Applicant’s claims to be a refugee.

19. In the Claims and Evidence section of its decision record, the Tribunal put to the Applicant information that it was of the view may be the reason or part of the reason for affirming the decision under review. The Tribunal told the Applicant that she may respond to that information after the hearing. The information that the Tribunal then put to the Applicant was information about her returning to China in 2008 and her lack of knowledge of Falun Gong. That information arose from evidence given by the Applicant to the Tribunal for the purposes of the review application and was not information that otherwise enlivened any obligation under s.424A(1) of the Act.

20. In the circumstances, I accept the submission of counsel for the first respondent that the Tribunal conducted its review in accordance with the procedural requirements of Division 4 of Part 8 of the Act. The Tribunal invited the Applicant to come to a hearing in accordance with s.425 of the Act. The information to which the Tribunal had regard in affirming the decision under review was not information that enlivened any obligation under s.424A(1) of the Act (see s.424A(3)(ba), s.424A(3)(b) and SZBYR at [18]).

21. Accordingly, the grounds of the application are not made out.

Conclusion

1. 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 put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal gave the Applicant a further two weeks following the hearing to provide any further information in support of her claims. The Tribunal noted that such time would allow the Applicant “ample time to consult with her advisor before formulating a written response to the matters raised”. The Tribunal noted that it did not receive a written response and the Applicant did not contact the Tribunal to seek additional time or otherwise to explain her failure to respond to the information put to her at the hearing.

2. The Tribunal 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. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. 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.

4. 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.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  20 May 2010