SZOPM v Minister for Immigration

[2010] FMCA 874

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPM v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 874

MIGRATION – Review of a decision of the Refugee Review Tribunal – Tribunal’s findings were all open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 425, 476

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Attorney-General (NSW) v Quin (1990) 170 CLR 1
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105

Applicant: SZOPM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1961 of 2010

Judgment of: Nicholls FM

Hearing date: 11 November 2010

Date of Last Submission: 11 November 2010

Delivered at: Sydney

Delivered on: 11 November 2010

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms A Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 7 September 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1961 of 2010

SZOPM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made on 7 September 2010, under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 4 August 2010, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 6 April 2009 with a student visa. The student visa was valid until 5 April 2010 (see Court Book – “CB” – CB 1 to CB 3).

Claims to Protection

1. The applicant’s claims to protection were set out in her application for a protection visa on 12 January 2010 (CB 1 to CB 37).

2. The applicant claimed that she returned to China from Australia in July 2009 to attend to a family matter. On arrival she claimed to have been arrested at the airport for possessing prohibited items. These were said to be a book titled “Zhuan Falun”, and two copies of a newspaper, “The Epoch Times”. The applicant claimed to have brought this material to China for the purpose of allowing her mother to continue her practice of Falun Gong at home. She claimed that she was taken to a detention centre and charged with importing banned material (CB 33).

3. The applicant further claimed that her mother confessed to the local police that the Falun Gong materials were in fact for her, and that she had requested her daughter to bring the materials into China. The applicant was therefore released, although fined. But as a result of her mother’s intervention, her mother was detained for 15 days. She was badly beaten and also fined (CB 34). The applicant claimed that her family was subjected to constant surveillance by local authorities from that time.

4. The applicant then departed China, coming back to Australia on 24 July 2009, at which time she said she became a member of Falun Gong, in particular so that she could: “… expose the injustice and brutality we had suffered under CCP rule by joining truth clarification activity.” (CB 35).

The Delegate

1. The applicant was subsequently invited to attend an interview with the Minister’s delegate on 24 March 2010 (CB 40 to CB 42). She attended the interview.

2. It is clear from the delegate’s decision record that the delegate was sceptical that the applicant’s mother had practised Falun Gong. More particularly, that the applicant would take the risk in bringing in banned material to China in knowledge of the adverse consequences that would flow from such an action. However the delegate, notwithstanding, was prepared to give the benefit of the doubt to the applicant in this regard.

3. In any event, the delegate found that even if he were to accept the applicant’s version of events, he was not satisfied that the events as claimed by the applicant would result in further adverse attention from the Chinese authorities. In this regard, the delegate noted that the applicant was able to lawfully depart China and, without difficulty, return to Australia (CB 54).

4. The delegate also had reservations about the delay in time between the applicant returning to Australia and her then applying for a protection visa. In refusing the application the delegate was of the view that this lapse in time supported the finding that the applicant’s fear of Convention based persecution was not substantial (CB 55).

5. On 9 April 2010 the delegate refused the application (CB 43 to CB 46).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 12 May 2010 (CB 57 to CB 61). The Tribunal invited the applicant to appear before it on 20 July 2010 (CB 63). The applicant attended the hearing and gave evidence ([23] at CB 86).

2. At the hearing the Tribunal received photographs and a copy of her passport from the applicant ([24] at CB 86). The applicant told the Tribunal that the photographs were taken by a friend at: “…a big Falun Gong demonstration in May.” ([29] at CB 86.) She told the Tribunal that this was the only demonstration that she had attended in Australia since becoming a Falun Gong practitioner ([35] at CB 87).

3. The applicant stated that before she arrived in Australia she did not practice Falun Gong, nor did she discuss the practice with her mother ([31] at CB 86 to CB 87). Since returning to Australia, the applicant said she practises Falun Gong with others in a public park and reads books at home ([36] at CB 87).

4. The applicant also told the Tribunal that she came back to Australia to continue her studies. However the account of the hearing reveals that the Tribunal questioned the applicant’s evidence in this regard, particularly in the circumstances, put by the applicant, that her mother had been detained and beaten, but also in light of the applicant’s other evidence that she had ceased studying in Australia ([39]-[40] at CB 87).

5. The Tribunal ultimately found that it did not believe that the applicant was “… credible in respect of key aspects of her claims for protection” ([53] at CB 89), which included key factual aspects of the applicant’s account. Namely that her mother had been practising Falun Gong for 10 years, or that the applicant carried literature relating to Falun Gong on her return to China in July 2009 ([56] at CB 89). To a large extent, this is because the Tribunal found the applicant’s account to be: “… weak, evasive and lacking in pertinent detail.” ([56] at CB 89.)

6. The Tribunal found that the applicant engaged in Falun Gong activities in Australia solely for the purpose of strengthening her claims to protection. It found that the applicant’s oral evidence regarding her Falun Gong commitment and beliefs was: “… limited, tentative and shallow.” ([58] at CB 89). Nonetheless the Tribunal accepted that the applicant had engaged in this conduct in Australia, but disregarded it in accordance with 91R(3) of the Act.

7. On 5 August 2010 the Tribunal wrote to the applicant affirming the delegate’s decision (CB 79).

Before the Court

1. The applicant appeared in person, with the assistance of an interpreter in the Mandarin language. Ms Nanson appeared for the first respondent. Written submissions were filed for the first respondent.

2. In the application to the Court the applicant put forward the following grounds:

   “1. The Refugee Review Tribunal did not make the right decision.

   2. I am a true Falun Gong practitioner.”

3. On 6 October 2010, at the first Court date, I made orders giving the opportunity to the applicant to file either an amended application or any further evidence, including any transcript of the Tribunal hearing, by 22 October 2010. Nothing further in this regard has been put before the Court.

4. At the hearing the applicant essentially put five matters before the Court. The first was to press that the Tribunal did not make the right decision and that she was a true Falun Gong practitioner.

5. The second matter was that the applicant complained that the Tribunal, presumably at the hearing, did not listen to her story carefully. She hoped that the Tribunal would listen carefully. I understood this to be the case if she was to be given another opportunity to appear before the Tribunal. At best, this complaint could be understood as some complaint that, in discharging its obligation pursuant to s.425 of the Act, the Tribunal somehow did not give the applicant a proper opportunity to explain her claims.

6. What immediately must be noted again is that, despite the opportunity provided to the applicant at the first Court date, no transcript of the Tribunal’s hearing has been put before the Court to support any such complaint.

7. Even if taken on its face, that the Tribunal did not give the applicant a proper opportunity or exhibited some conduct such as could be said not to have made some attempt to listen carefully and properly consider her claims, then there is no evidence whatsoever before the Court to support any such allegation. It is not open to this Court to infer as to what otherwise may have happened at the hearing in the absence of any evidence (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

8. On what is before the Court, that is the Tribunal’s own account of the hearing, what is evident is that the Tribunal did give the applicant the opportunity to give her evidence and present her arguments. But simply it did not believe key aspects of what the applicant said. At its highest, and in the circumstances therefore, the applicant’s complaint can only be seen as a complaint that ultimately seeks to challenge the factual findings made by the Tribunal, including the Tribunal’s finding as to the lack of credibility in what the applicant was saying. In all, to the extent that such a challenge would seek to engage some merits review by this Court, such review of course is not permitted (Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).

9. Another matter put by the applicant was that she was not given any transcript of the hearing. Further, although she asked for the audio of the hearing, she did not receive it. There is no obligation on the part of the Tribunal to provide any transcript of a hearing to the applicant. In relation to her having asked for the audio, which I take to be the CD recording of the hearing (and that she did not subsequently receive it), there is no evidence before the Court to support any such factual assertion.

10. In any event, I cannot see how any such failure would reveal jurisdictional error on the part of the Tribunal. Noting of course that the Tribunal wrote to the applicant on 5 August 2010 and enclosed a copy of the Tribunal’s decision record, the letter was sent by registered post and sent to the address for service provided by the applicant in her application.

11. If the applicant had indeed asked for an audio recording of the hearing, the question must also be asked: if she did not receive one before coming to this Court or, indeed, after having made her application to the Court, why she made no attempt to press the Tribunal for such a copy, or for such a recording?

12. I note that the applicant did seek to access the “RRT Legal Advice Scheme”. From the certificate provided by the relevant member of the panel of that scheme, who in this case was counsel, it is clear that the applicant was provided with the opportunity to ask questions as to how evidence could and should be put before this Court.

13. The applicant also told the Court that she sent documents to some unknown, unnamed person. This subsequently appeared to be, or may have been a reference to, a person in the Registry of this Court. She explained that what she had sent to this person were documents that showed that she and her mother had been detained in China.

14. There is no record on the Court file of any such documents having been received by the Court’s Registry. But even if such documents had been received, and were before the Court today, they cannot assist the applicant in showing jurisdictional error on the part of the Tribunal. Such documents would go to the question of the factual basis of the applicant’s claim to be a refugee, which is a question for the Tribunal and not for the Court to answer.

15. Finally, the applicant asked where she could send new evidence about events in China. There is no further opportunity, and certainly not before this Court, for the applicant to provide such documents, going as they do to the question arising from her factual account as to what she said occurred in China which then forms the basis for her claim for refugee protection.

16. Nothing that the applicant has said to the Court today goes to, let alone reveals, jurisdictional error on the part of the Tribunal.

17. The applicant’s grounds as set out in her application, even at their highest, do not rise above a request for impermissible merits review (Wu Shan Liang). The grounds plainly take issue with the Tribunal’s factual findings, in particular the findings as to the applicant’s lack of credibility. Such findings are findings of fact within jurisdiction and for the Tribunal to make as the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J).

18. On what is before the Court the Tribunal’s findings were all open to it to make on what was before it, and for which it gave cogent reasons.

19. To the extent that the applicant claims the Tribunal did not make the “right decision”, even if this were to be seen somehow as some complaint that the Tribunal did not make a “fair” decision, such a complaint would not assist the applicant. As the High Court said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J, what is required is a fair process not a fair outcome.

20. In this regard I note in particular that the applicant was invited to a hearing pursuant to s.425 of the Act. On the only account of what occurred that is before the Court, that is the Tribunal’s own account, this reveals that the determinative issue, involving the applicant’s factual account and the credibility of that factual account, in reviewing the delegate’s decision was plainly discussed and aired with the applicant at the hearing (see SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592).

21. Further, nor can I see any other breach of any other relevant statutory requirement or obligation. For example, no breach of the obligation in s.424A(1) is evident. The Tribunal properly engaged s.91R(3) of the Act (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105).

Conclusion

1. For the applicant to succeed the Court would need, at the very least, to discern jurisdictional error in the Tribunal’s decision. On what has been put before the Court, and what has been said to the Court, no such error is evident. The application should therefore be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  22 November 2010