SZOQL v Minister for Immigration
[2010] FMCA 921
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOQL v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 921 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 422B, 424A, 424AA, 425 |
| Abebe v Commonwealth (1999) 197 CLR 510 SZNIL v Minister for Immigration & Anor [2010] FMCA 470 |
| Applicant: | SZOQL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2095 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 25 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr M Alderton Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2095 of 2010
| SZOQL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 25 August 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution apparently on the basis that she had been imputed to be a Falun Gong sympathiser by the Chinese authorities. The following background facts relating to the applicant’s claims and the decisions of the delegate and the Tribunal on them are derived from the Minister’s submissions filed on 22 November 2010.
The applicant, a citizen of China, arrived in Australia on 29 November 2009 (court book, “CB” 14, 85) and lodged an application for a Protection (Class XA) visa on 08 February 2010: CB 1-26. The applicant appointed a migration agent to assist her in connection with that application: CB 27-30.
In a typed statement attached to her visa application (CB 31-33), the applicant claimed to fear harm from the Chinese government because she was imputed to be a Falun Gong sympathiser. She claimed that she provided shelter and employment to a friend who was a Falun Gong practitioner and was wanted by police in the north eastern part of China because of her practice of Falun Gong. In February 2009, the police conducted identity checks at the applicant’s business and identified the applicant’s friend as a person wanted by the authorities. The applicant claimed she and her friend were taken to the police station and tortured. She claimed she was forced to sign a confession letter, served three months in a re-education labour camp and was beaten. She claimed she acquired some knowledge of Falun Gong whilst in prison and was released in May 2009.
Following her release she was required to report to the police every two weeks but began to learn more about Falun Gong. On 17 October 2009 she attended a fellow practitioner’s home “to participate in Dafa study” but left early and before the police raided the gathering and charged the other participants with illegal assembly. The applicant became frightened and divorced her husband in November 2009 for fear that her family would be affected because of her Falun Gong beliefs. She paid 200,000 RMB to come to Australia and arrived on a visitor visa on 29 November 2009. The applicant claimed she had undertaken Falun Gong activities in Australia and applied for a protection visa on 8 February 2010.
The delegate
On 24 April 2010, a delegate of the Minister made a decision refusing to grant the applicant a protection visa: CB 60-70. The delegate found that the applicant’s “responses were generally rehearsed and lacked depth and the level of detail and understanding of a person who is a genuine Falun Gong practitioner”: CB 66.7. The delegate found the applicant could not provide a compelling account of her Falun Gong activities in China or why she became a Falun Gong practitioner: CB 66.9-67.1. The delegate found the applicant’s demonstrated understanding of the spiritual aspects of Falun Gong was superficial and that there was a lack of evidence supporting her claims: CB 67.4. Accordingly, the delegate found that the applicant was not a genuine Falun Gong practitioner in China: CB 67.5.
The delegate also noted that the applicant had not provided any evidence in relation to her claimed Falun Gong activities in Australia and drew adverse inferences about her subjective fear of harm because she had not told her story to a Falun Gong organisation or practitioner in Australia: CB 68.2. Given the earlier findings that she was not a Falun Gong practitioner in China, the delegate found that the applicant had undertaken Falun Gong activities in Australia for the sole purpose of strengthening her claim to be a refugee and disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”): CB 68.5. The delegate also made adverse findings about the veracity of the applicant’s claims to fear harm given her delay in lodging an application for a protection visa after arriving in Australia and inconsistent testimony: CB 68.7-69.4.Finally, the delegate found that the applicant’s evidence about her departure from China was “implausible” and that the Chinese authorities had no adverse interest in her given her ability to depart China on a valid passport in her own name: CB 69.5.
The delegate therefore found that the applicant’s claimed fear of persecution was not well-founded: CB 69.9.
The Tribunal’s proceedings
On 24 May 2010, the applicant lodged an application with the Tribunal to review the delegate’s decision: CB 71-74. She continued to be represented in relation to the review by her appointed migration agent: CB 72.
By a letter dated 21 June 2010, the Tribunal invited the applicant through her agent to attend a hearing before the Tribunal scheduled for 20 July 2010: CB 77-78. The applicant accepted that invitation (CB 79) and attended the hearing on 20 July 2010: CB 80-82. The applicant provided the Tribunal with a copy of her passport at the hearing: CB 83-87.
The Tribunal’s decision
In a decision dated 25 August 2010, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection (Class XA) visa: CB 90-114. The Tribunal rejected the applicant’s claims on the basis of comprehensive adverse credibility findings. These findings were supported by inconsistencies identified in the applicant’s oral evidence to the Tribunal and to the delegate and her written claims regarding her personal circumstances, her marital situation and the nature of her marriage relationship with her second husband: CB 110, [115]-[117]. The Tribunal also identified inconsistencies between the applicant’s oral evidence and a document (a purported detention certificate) provided in support of her claims: CB 111, [121]. On the basis of these inconsistencies the Tribunal did not accept that the applicant provided shelter to her friend who was a Falun Gong practitioner, was wanted by the police or was detained for three months. Nor did it accept her claim which she raised for the first time at the Tribunal hearing that she was required to report to the police fortnightly after her release: CB 110, [118].
The Tribunal accepted the applicant’s claim that she did not practise Falun Gong in China and did not accept that she had any interest in Falun Gong in China or met practitioners whilst detained: CB 110, [119]. It found her evidence in relation to her claimed interest and belief in Falun Gong whilst in China was “vague, at times not consistent and unconvincing”: CB 111, [120]. The Tribunal also found that her evidence in relation to her claimed practice of Falun Gong in Australia was “most unsatisfactory” (CB 111, [122]) and her demonstrated knowledge of Falun Gong teachings and movements was “vague and suggested that she had little understanding to the particular claimed benefit”: CB 112, [124]. The Tribunal also found that her responses to questions about Falun Gong were “indicative of a person who has a shallow knowledge and a superficial interest in Falun Gong”: CB 112, [125].
Although the Tribunal accepted that the applicant had some limited knowledge of Falun Gong, it concluded that she acquired this knowledge in Australia for the purposes of strengthening her claims to be a refugee and therefore disregarded that conduct pursuant to s.91R(3): CB 112, [125]-[127].
The proceedings in this Court
These proceedings began with a show cause application filed on 24 September 2010. The application contains three grounds:
1. [Tribunal] considered my case unfairly. They doubt my claim without substantive evidence.
2. Procedural Fairness has been denied by [Tribunal].
3. [Tribunal] did not consider my situation in China. I will be put in jail if I go back.
None of the grounds are particularised. I made procedural orders in this matter on 21 October 2010. Those orders, among other things, gave the applicant the opportunity to file and serve an amended application with particulars. She has not taken up that opportunity. The application is supported by a short affidavit which refers in one sentence to the applicant’s fears of harm. I received that affidavit as a submission.
I received as evidence the court book filed on 1 November 2010.
I note that the applicant has received advice from Mr Brett Slater pursuant to the Minister’s Panel Advice Scheme.
The applicant told me from the bar table that she had not had the opportunity to read the Minister’s written submissions. I adjourned the hearing while the interpreter read those submissions to the applicant.
I explained to the applicant the difficulties that I saw with the general grounds in her application. She told me that she did not know what to say. I asked her if there was anything about the Tribunal decision or the process followed by the Tribunal which gave her a particular concern. She responded in the negative. In the absence of particulars, it is difficult to deal in any meaningful way with the grounds advanced by the applicant.
The first ground asserts that the Tribunal considered the applicant’s case unfairly. There is a general assertion that the Tribunal doubted the applicant’s claim without substantive evidence. It is true that the applicant was not believed by the Tribunal. Specifically, the applicant’s claims of past harm in China were not accepted. However, it is not correct that there was no evidence to support the adverse credibility findings made by the Tribunal. Those findings were supported by the information provided by the applicant herself, both orally and in writing. There is no obligation on the Tribunal to itself find additional evidence to rebut the claims of an applicant. The Minister has made a further attempt to clothe the first ground with some meaning and I agree with those submissions.
The Tribunal’s conclusion that the applicant was not credible is a finding of fact par excellence.[1] The Tribunal’s findings were open to the Tribunal for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision,[2] and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact.[3]
[1] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
[2] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [137]
The Tribunal gave detailed reasons in affirming the delegate’s decision, including setting out the identified inconsistencies in the evidence the applicant had given. Although the applicant might not be satisfied with the Tribunal’s process of reasoning, it was open to the Tribunal to reach the view that it did and no reviewable error is revealed by the Tribunal’s adverse conclusions alone.
To the extent that the applicant’s allegation that the Tribunal considered her case “unfairly” is an allegation of actual or apprehended bias, this cannot be established. There is no evidence to support the view that the Tribunal’s mind was not “open to persuasion” and an allegation that the decision maker’s mind is not so open must be “distinctly made and clearly proved”.[4] It will be a “rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”.[5] The Tribunal’s reasons in this case do not fall within “the rare and exceptional” category of cases in which its reasons alone are sufficient to establish actual bias.
[4] Minister Immigration v Jia (2001) 205 CLR 507 at 531-532 [69], [71]-[72] per Gleeson CJ and Gummow J
[5] See, for example, SZMOO v Minister for Immigration [2009] FCA 211 at [19] per Reeves J; SZMPN v Minister for Immigration [2009] FCA 203 at [24] per McKerracher J
To the extent that the first ground of review raises an allegation as to apprehended bias, that allegation must also be rejected. Again, the applicant has not filed any evidence in support this allegation and has failed to establish that, in conducting its review, the Tribunal conducted itself in a manner that indicated pre-judgement or in a manner that could otherwise be perceived by the hypothetical fair minded lay observer as failing to bring an impartial mind to the task at hand.[6]
[6] Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at 434-435 [27]-[28]
Ultimately, the Tribunal did not accept the applicant’s claims because it did not accept that she was a credible witness. It based this conclusion on the identified inconsistencies in the applicant’s evidence which she had been unable to explain to the Tribunal’s satisfaction. The Tribunal discussed with the applicant at the hearing the concerns it had with her credibility and the numerous inconsistencies and implausibilities identified in her oral and documentary evidence: CB 102-103, [72]-[74]; CB 106-108, [92]-[107]. The fact that the Tribunal reached this conclusion is not, on the basis of its reasons alone, sufficient to establish prejudgment.[7]
[7] MZYCQ v Minister for Immigration [2009] FCA 1286 at [16] per Sundberg J
The second ground is a general assertion of procedural unfairness. As the Minister has observed in his submissions that kind of assertion must be considered in the context of s.422B of the Migration Act. Part 7 of that Act establishes a procedural code governing the operation of the Tribunal. Leaving aside questions of bias, which I have considered above, allegations of procedural unfairness must now, as a general rule, be dealt with by reference to the statutory code of procedure. In the present case, there is no apparent breach of that code. The applicant was invited to a hearing pursuant to s.425 of the Migration Act and attended. That hearing opportunity appears to have been a fair one. The applicant was put on notice of the essential and significant issues upon which the review would turn.
In purported compliance with s.424AA of the Migration Act, the Tribunal put to the applicant at the hearing information that it considered would be the reason, or part of the reason, for affirming the decision under review: CB 108-109, [104]-[108]. The relevant information was identified inconsistencies in the applicant’s evidence contained in her written statement and her oral evidence to the Tribunal and to the delegate: CB 109-110, [113]-[114], [118]. “Information” for the purpose of s.424A(1) does not include the existence of doubts, inconsistencies or the absence of evidence.[8] As the “information” was simply the Tribunal’s subjective appraisals, thought processes, determinations or conclusions in relation to the evidence, no obligation under either s.424A or s.424AA arose.
[8] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
On the other hand, information from the applicant’s visitor visa application (CB 108, [107]) does not come within any of the exceptions to “information” contained in s.424A(3), specifically s.424A(b). Nor does the oral evidence given by the applicant during the interview with the delegate (see CB 110-111, [116], [120]) fall within the exception provided for in s.424A(3)(ba). Accordingly, whilst many of the inconsistencies were not required to be put to the applicant for comment under s.424A or s.424AA, no error is revealed in the Tribunal’s cautious approach.[9] Indeed, it was understandable in the present case given that some of the component information that gave rise to some of the inconsistencies was not exempted from the application of s.424A(1) obligations by any of the exceptions in s.424A(3).
[9] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]
In any event, on the face of the decision record, the Tribunal complied with all of the requirements of s.424AA. The Tribunal member thoroughly explained how the information was relevant to the review and the consequences of the information being relied upon by the Tribunal as required by s.424AA(b)(i): CB 108-109, [104]-[108]. The Tribunal advised the applicant that she could seek additional time to comment on or respond to the information pursuant to s.424AA(b)(iii), and the applicant was granted 21 days to respond to the information put to her at the hearing for comment: CB 108-109, [104], [108]. The Tribunal did not receive a response from the applicant by the due date (CB 109, [110]) and proceeded, within its powers, to make its decision on 25 August 2010: CB 90-114. Accordingly, the Tribunal complied with the obligations (if any existed) under s.424AA and no breach of s.424A has occurred.
In summary, the Tribunal’s findings have a clear evidentiary basis and were open on the evidence before it. Those findings were made after the Tribunal conducted a hearing with the applicant, the Tribunal’s summary of which suggests that the applicant had every opportunity to articulate her claims in detail. During the Tribunal hearing, the Tribunal put to the applicant the concerns it had with the identified inconsistencies in her evidence. As already noted, at the conclusion of the hearing, the Tribunal also gave the applicant 21 days to respond to the information put to her for comment at the hearing. There was no requirement for the Tribunal to adopt this cautious approach as the identified inconsistencies did not for the most part constitute “information” for the purposes of s.424A of the Migration Act.[10]
[10]SZBYR v Minister for Immigration (2007) 235 ALR 639 at [19]-[20] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
The third ground raised by the applicant is an appeal to merits review, which is beyond the scope of this proceeding. In any event, I accept the Minister’s submission that the Tribunal considered the applicant’s claims. The conclusions reached by the Tribunal were open to it on the material before it.
The Tribunal disregarded the applicant’s conduct in Australia related to Falun Gong pursuant to s.91R(3) of the Migration Act. It is not clear when that conduct commenced after the applicant’s arrival in Australia. It is possible that the conduct commenced prior to the lodgement of the protection visa application on 8 February 2010. I have previously found that s.91R(3) extends to conduct that is intended to enhance a protection visa claim which is in contemplation[11].
[11] SZNIL v Minister for Immigration & Anor [2010] FMCA 470 at [34]
In so finding, the Tribunal correctly disregarded the applicant’s conduct in Australia in assessing her claims to be a refugee, as it was required to do by s.91R(3) of the Migration Act.[12] The Tribunal’s finding was open to it for the reasons it gave and its application of s.91R(3) discloses no error.
[12] Minister for Immigration v SZJGV (2009) 238 CLR 642; Minister for Immigration v SZJXO (2009) 238 CLR 642
I see no error in the Tribunal’s approach to that issue.
The applicant has failed to satisfy me that she has an arguable case of jurisdictional error by the Tribunal. Neither is an arguable case of error apparent to me from my own reading of the material.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In consequence of the dismissal of the application, the Minister seeks scale costs. The applicant inquired whether costs in a reduced amount might be awarded as a reflection of her financial circumstances. The issue for the Court is whether the costs sought have been reasonably and properly incurred. I see no reason to depart from the Court’s scale in this instance.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 6 December 2010
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