SZONP v Minister for Immigration
[2010] FMCA 785
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZONP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 785 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider the applicant’s claims properly and fairly, failed to comply with s.424 of the Migration Act 1958, failed to consider certain evidence submitted by the applicant and failed to give reasons for its decision. |
| Migration Act 1958, ss.91R, 424, 424A, 425, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Re Minister for Immigration & Multicultural Affairs;Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 |
| Applicant: | SZONP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1601 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 October 2010 |
| Date of Last Submission: | 5 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1601 of 2010
| SZONP |
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 ceased practising Falun Gong after it was banned by the Chinese authorities. She alleges that she has resumed her practice of Falun Gong in Australia and that she fears persecution in China for this reason.
After her arrival in Australia on 10 June 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 16 February 2010. 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 –13 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement attached to her protection visa application:
a)she was forced to go into hiding after she fell pregnant with her second child in 1990. She knew that the Family Planning Office would terminate her pregnancy once they learned of it;
b)shortly after the birth of her second child, the Family Planning Office took her away and forcibly sterilized her. She was also fined two thousand yuan for breaching the one-child policy;
c)as a consequence of the physical and psychological trauma of her pregnancies and of the forced sterilization, she became very ill. On 18 February 1999 one of her friends came to visit her and recommended that she practise Falun Gong. She decided to try it and from 21 February 1999 started practising Falun Gong in a park near her home every Sunday. Eventually she recovered completely;
d)on 22 July 1999 the Chinese authorities banned Falun Gong and started persecuting practitioners. She was not truly a practitioner at the time, having only learned a few exercises, and although she read Zhuan Falun “once in a while” she had no understanding of its principles. As she was afraid of being arrested and detained and her family also opposed Falun Gong she quit her practice of it;
e)she came to Australia in June 2007 on a student guardian visa to take care of her sons who were studying in Sydney. Although she had “ample of opportunities to take up Falun Dafa”, she did not do so because, amongst other things, she feared that she would be persecuted by the authorities when she returned to China;
f)she chose to stay in Australia unlawfully after the expiry of her visa in July 2008 because her sons were still young and she felt that she needed to take care of them;
g)she suffered from migraines in early 2009 and decided to recommence her practice of Falun Gong. She has been practising the five exercises and has resumed reading Zhuan Falun since March 2009;
h)on 10 May 2009 she experienced a “miracle” while reading Zhuan Falun. On that day she was bedridden as she had hurt her back a few days earlier. She started reciting a passage from Zhuan Falun when, suddenly, her headache and back pain were greatly relieved and she was able to walk around with very little pain;
i)having been touched by the “boundless power” of Falun Gong, she is determined to study it seriously and will never give up her practice of Falun Gong again; and
j)if she returned to China she would continue to practise and tell the truth about Falun Gong and fears that she would be persecuted by the Chinese authorities.
On 4 February 2010 the applicant provided the Minister’s department with a statement written by a Falun Gong practitioner in Australia asserting that he had known the applicant since October 2009 when she started attending Falun Gong study classes. The applicant also provided nineteen undated photographs without captions.
The applicant appeared before the Tribunal on 13 April 2010 to give evidence and present arguments. At the hearing she made the following additional claims:
a)nothing happened to her in China as a result of her practice of Falun Gong and she was not thinking about persecution when she came to Australia. At the time she intended to return to China;
b)she first found out about Falun Gong on 18 February 1999. She remembered the date as it was the third day of the Chinese New Year and the date was very important to her;
c)she started practising Falun Gong on 10 March 1999. Later she said that she had started practising Falun Gong on 18 February 1999, not 10 March 1999, but then said that she had started her exercises in March 1999 but could not remember the exact date. Later still she said that she had been nervous and muddled and that the date was 21 February 1999;
d)she practises Falun Gong on Sundays and attends a study group on Thursdays. She has been to various Falun Gong events in Sydney; and
e)she will continue to practise Falun Gong if she returns to China and will be persecuted because the practice of Falun Gong has been banned. She will not be protected by the authorities because she is a genuine Falun Gong practitioner now.
At the hearing the applicant provided the Tribunal with a supporting statement purportedly written by a Falun Gong practitioner in Australia.
On 15 April 2010 the applicant provided to the Tribunal two additional supporting statements as well as three photographs of the applicant at a public Falun Gong event.
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 did not accept that the applicant was a Falun Gong practitioner in China, noting that:
i)the dates of certain Falun Gong experiences which she claimed were very important to her were inconsistent as between her statement and her oral evidence. Further, her oral evidence concerning these dates changed under questioning; and
ii)her own evidence was that she was not truly a practitioner in China. She also said that she did not fear persecution when she arrived in Australia by reason of her practice of Falun Gong in China;
b)nor did the Tribunal accept that she was a genuine Falun Gong practitioner in Australia, noting in this connection that although the applicant had said that Falun Gong was important in her life, that Falun Dafa was her life and that this stemmed from the time she claimed she was a Falun Gong practitioner in China, she did not practise Falun Gong for almost two years after her arrival in Australia despite having ample opportunities to do so;
c)as a result, the Tribunal did not accept that the applicant would practise Falun Gong upon her return to China and rejected the proposition that she would face persecution in China because of her practice of Falun Gong in Australia;
d)the Tribunal accepted that the applicant’s breach of the one-child policy may have led to the events which she said arose out of her second pregnancy. However, the Tribunal was satisfied that China’s family planning laws were laws of general application and concluded that the harm suffered by the applicant had not been discriminatory and was not persecution for the purposes of the Act; and
e)the Tribunal accepted that the applicant had been practising Falun Gong and had been involved in various Falun Gong activities while in Australia. However, the Tribunal was not satisfied that the applicant had engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee. Pursuant to s.91R(3), the Tribunal therefore disregarded the applicant’s conduct in Australia.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The RRT decision fell into jurisdictional error.
2.The Tribunal failed to consider my claims properly and fairly and failed to comply with s.424 of the Act.
3.RRT failed to consider supporting letters and photos which have submitted in support of my claims for protection.
At the hearing the applicant also submitted that the Tribunal had not given her specific reasons for its affirmation of the delegate’s decision.
Jurisdictional error
The first ground pleaded in the application, that the Tribunal’s decision is affected by jurisdictional error, is not particularised. Without particulars, the allegation has no substance and as a result it is not really an independent ground of review. It should be considered as an allegation prefatory to the second and third grounds which will now be considered.
Failure to consider claims properly and fairly
The applicant has not identified what she means when she says that the Tribunal’s consideration of her claims was not undertaken “properly and fairly”.
As to whether the Tribunal considered the applicant’s claims “properly”, it has not been suggested that the Tribunal failed to have a proper appreciation of the claim which the applicant was making or that it failed to consider the evidence and arguments which the applicant put before it. The applicant’s claim was an uncomplicated one and there is no reason to conclude that the Tribunal misconstrued it. Having identified what the applicant’s claim was, the Tribunal was then required to consider the evidence available to it to determine whether the claim was well-founded. In this connection, the Tribunal’s decision record shows that it did consider the evidence which, according to its summary of the evidence, was before it. The applicant has not suggested that any evidence which she submitted was not included in the Tribunal’s summary and, in those circumstances, it can be accepted that the summary is accurate. That being so, but subject to consideration of the third allegation in the application, it can also be concluded from its decision record that the Tribunal considered all the evidence before it. Moreover, it considered that evidence in the context of the tests which it was required to apply and made findings which were open to it on the evidence.
As the Tribunal properly identified what the applicant was claiming, considered the evidence, applied the correct tests and made findings which were open on the evidence, I find that the Tribunal considered the applicant’s claims properly.
The allegation that the Tribunal did not consider the applicant’s claims fairly may be an allegation that the outcome of the Tribunal’s consideration was not fair or it may be that the applicant says that the manner of the Tribunal’s consideration of those claims was not fair. Alternatively, she may be alleging bias.
Turning to the first of these possibilities, a complaint that the outcome of a Tribunal review is not fair is no more than an attempt to re-argue the merits of the application which was before the Tribunal. As was said earlier in these reasons, the Court does not have the power to rehear the applicant’s application for a visa. For that reason, if the applicant is alleging that the Tribunal’s decision is not fair because another decision would be fairer to her, in the sense of more advantageous, then no basis has been demonstrated for the setting aside of the decision the subject of these proceedings.
If, however, the applicant alleges that the manner of the Tribunal’s consideration was not fair, then that raises questions of its procedure. The procedural requirements of a review before the Tribunal are set out in div.4 of pt.7 of the Act. The provisions in that division which are most relevant to present considerations are ss.424A and 425. Section 424A has no applicability in the circumstances of this matter as the information on which the Tribunal based its decision was written information which the applicant provided to the Minister’s department prior to the Tribunal hearing, information which the applicant supplied to the Tribunal for the purposes of its review and independent country information. All such information falls within the exceptions to the operation of s.424A(1) found in s.424A(3), with the consequence that s.424A has no relevance to this matter.
As to s.425, the Tribunal invited the applicant to a hearing which she attended. Further, the Tribunal put various matters to her, thereby ensuring that she was aware of the matters arising in relation to the decision under review. Specifically, it put to her its concerns regarding the different dates she gave for particular events and the possibility that it might find that she was not a witness of truth and was not telling the truth about her claim that she would be persecuted. It also advised her of the effect of s.91R(3) and the possible consequences of its operation in the context of her claim. As a result, I find that the Tribunal did not fail to observe or satisfy its obligations under s.425.
Subject to her reference to s.424, which will be considered separately shortly, the applicant has not suggested any other provision of div.4 of pt.7 which the Tribunal failed to observe or somehow breached and none is apparent.
To the extent that the allegation of a want of fairness amounts to an assertion of bias against the Tribunal, the application failed to distinctly articulate this, which it should have done. Nor has the applicant particularized any alleged actual bias or identified what conduct of the Tribunal would lead to an apprehension that it might not bring an impartial and unprejudiced mind to the resolution of the matters it was required to decide.
Further, the applicant adduced no evidence which would support a finding of bias, whether actual or apprehended. The only evidence before the Court is what is contained in the Court Book and nothing in it, and in particular nothing in the Tribunal’s decision record, supports a conclusion that the Tribunal was so committed to a conclusion already formed as to be incapable of changing its mind, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Nor does it support a conclusion that a fair minded lay observer might have apprehended the possibility that the Tribunal was not bringing an impartial mind to the review: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. Rather, the decision record indicates that the Tribunal approached its task conscientiously and with an open mind.
For these reasons, the second ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Breach of s.424
Section 424 provides:
424 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)A written invitation under subsection (2) must be given to the person:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 424(2) and (3) have no application to this matter as the only information which the Tribunal got, i.e. sought out and obtained, was independent country information regarding the attitude of Chinese authorities to Falun Gong and Falun Gong practitioners. That information falls within s.424(1). It can be inferred that the Tribunal had regard to that country information because it expressly concluded that the Chinese authorities would not be interested in the applicant on her return to China. Consequently, no breach of s.424 has been demonstrated.
Failure to consider supporting letters and photographs
The applicant alleges that the Tribunal failed to consider the letters of support and the photographs which she submitted in support of her application but in its summary of the evidence the Tribunal referred at paras.24, 41 and 54 to those very things and at para.72 of its decision the Tribunal expressly referred to having considered those documents when dealing with the review application. Plainly, the Tribunal did have regard to the material which the applicant now alleges it failed to consider.
It may be that the applicant believes that the Tribunal did not consider that information because the Tribunal did not discuss it in any detail. However, s.430 of the Act only requires the Tribunal to refer to the evidence on which findings on material questions of fact are based. The Tribunal does not err by not referring in its reasons to all the evidence before it; it may be that it is unnecessary to make a finding on a particular matter because there is a factual premise upon which a contention rests which has been rejected: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46] and [47]. Nor is it necessary for the Tribunal to give a line-by-line refutation of the evidence for the applicant either generally or in those respects where there is evidence that is contrary to findings of material facts made by the Tribunal: Re Minister for Immigration & Multicultural Affairs;Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [65].
The Tribunal found that the applicant was not telling the truth for the reasons which it gave and, in light of what the Tribunal said in para.72 of its decision, there is no reason to suppose that the Tribunal did not have regard to all the information it referred to in its reasons when reaching that conclusion; this is not a case where the Tribunal can be said to have overlooked corroborative evidence. As the letters of support and photographs were not relied upon in reaching the conclusion that the applicant was not telling the truth, s.430(1)(d) did not require that they be referred to in association with that finding. Further, as the information in the letters and photographs was supportive of the applicant’s claim to be a Falun Gong practitioner and was thus contrary to material findings of fact made by the Tribunal, there was no need to refer to that material in any detail greater than what appeared in para.72.
Tribunal failed to give specific reasons
A review of the Tribunal’s decision record reveals that this allegation cannot succeed. The Tribunal did give adequate reasons for its decision as well as making material findings of fact and identifying the evidence on which those findings were based. But in any event, a failure to comply with s.430, without more, does not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 19 October 2010
0
5
0