SZORT v Minister for Immigration
[2011] FMCA 126
•25 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZORT v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 126 |
| MIGRATION – VISA – Protection (Class XA) visa – application for review of decision of Refugee Review Tribunal – citizen of China claiming fear of persecution on ground of religious belief – Falun Gong – allegation of bias – credibility issues – merits review – Refugee Review Tribunal has no obligation to disprove an applicant’s claim – procedural fairness – no denial of procedural fairness – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 425, 426A, 474, 476 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZLMK v Minister for Immigration [2008] FMCA 1372 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 |
| Applicant: | SZORT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2265 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 January 2011 |
| Date of Last Submission: | 25 January 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2011 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5865. I allow six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2265 of 2010
| SZORT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China. He applies to the Court for review of a decision of the Refugee Review Tribunal. On 21 September 2010, the Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicant a Protection (Class XA) visa.
The applicant filed an application to this court on 20 October 2010. In that application he asks for two orders:
(1) Order to set aside RRTs decision
(2) Review my case again by RRT
The applicant has been told by the Court that in order to obtain the orders that he seeks, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. In his application, the applicant sets out three grounds by which he claims the Tribunal has fallen into error:
(1)RRT considered my case unfairly. They doubt my claim without substantive evidence.
(2) Procedural fairness has been denied by RRT.
(3)RRT did not consider my situation in China. I will be put in gaol if I go back.
In his affidavit filed in support of his application, the applicant says:
I need religious freedom and I fear to go back to China.
The background to this matter is that the applicant arrived in Australia on 26 November 2009. On 5 January 2010 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. In his application he disclosed two convictions on 29 June 2009 in China. He gave the short descriptions of the offences as:
(1) disturbed public security
(2) false charged government official
The applicant provided a typed statement with his application in which he set out the reasons why he fears persecution in China. A copy of that statement can be found at pages 31 to 34 of the court book. The applicant claims that he was persecuted by the Chinese Communist Government because he is a distant relative of Hongzhi Li, the founder of Falun Gong. He travelled to Australia with a tourist group on 26 November 2009 and went into hiding as soon as he arrived in Australia. The applicant claimed that he had seen Falun Gong banners with the name of Mr Li on them but did not pay much attention, because he did not expect that person to be related to him. He was, however, interrogated by the police, but he told them that he had not met this person after they grew up and he had no idea about anything related to Falun Gong. Nevertheless, he was demoted at work after one month, and on 3 December 1999 he was dismissed without reason.
In February 2000, he opened a decorating company and he had four regular employees. Because he was surprised that his relative was defined as an anti-government individual, the applicant began to learn some information about Falun Gong and obtained a book about it. He became interested in Falun Gong. In 2007 the applicant came under notice, because he made a claim that he had done some work for a school but he had not been paid. He claimed that he had been asked to provide a bribe, and on 12 June 2008 he commenced proceedings in the People’s Court hoping to obtain money.
On 29 June late at night the police arrived, took him to the Public Security Bureau’s Office and cross-examined him, and asked him to confess that he had been in contact with Mr Li, the founder of Falun Gong. He was later detained and charged with bringing a false charge against a government official and disturbing public security. He claimed that he was ill treated and beaten up whilst in detention. Eventually he was released, but it was not until after 30 days had elapsed. He had to pay bail money. He then had to report to the police station every two weeks. Eventually he was allowed to report only once a month. Because it was said that he was a relative of the founder of Falun Gong, people avoided him and did not give him work.
Eventually he contacted an agent and paid him some money to obtain a tourist visa to enter Australia. On 26 November he arrived in Australia with the tourist group and absconded from the group. His departure from the group was reported by the tour company to the visa section of the Australian Embassy in Beijing with the description that said that the applicant was “stagnating” in Australia. A full report was given indicating that the people on the tour group had not been able to find the applicant after he left the group.
The applicant was invited to attend an interview with an officer of the Department of Immigration and Citizenship on 23 March 2010. Eventually he was interviewed on 31 March 2010. His application for a visa was refused on 1 April 2010. In the delegate’s Protection (Class XA) Visa decision record, the delegate said:
I am not satisfied that the applicant has substantiated a claim of well-founded fear of persecution for the following reasons:
·In general I did not find the applicant to be a witness of truth. I have formed the view that critical elements of his testimony were implausible and were exaggerated or fabricated in the belief that it would enhance the success of his application.
·I am not satisfied on the evidence before me that the applicant is a distant relative of Mr Li Hongzhi, the founder of Falun Gong. The applicant has provided no evidence of his familial connection; he has only asserted the connection in his claims. At interview he could not draw a family tree linking himself to Li Hongzhi.
The delegate went on to find:
I am not satisfied that the applicant would be allowed to leave China to travel to Singapore, Thailand and Malaysia and also, in December 2009, to travel to Australia, travelling in his own name, if he was of any adverse interest to the Chinese authorities.[1]
[1] See Court Book at page 102
The delegate also was not satisfied as to the applicant’s knowledge of Falun Gong, and said:
I have formed the view that the applicant was not a genuine Falun Gong practitioner in China. I have also formed the view that any Falun Gong activity performed in Australia was done for the sole purpose of strengthening his claims for protection. I therefore disregard this activity in consideration of his protection visa application.[2]
[2] Court Book page 104
Application to the Refugee Review Tribunal
After the applicant’s application for a Protection visa was refused on 1 April 2010, he applied to the Refugee Review Tribunal for a review of that decision. His application was lodged by fax on 28 April 2010. On 13 May the Tribunal wrote to the applicant inviting him to attend a hearing to take place on 9 June 2010. He submitted a Response to Hearing Invitation indicating that he wished to attend and that he required an interpreter in the Mandarin language. The hearing was postponed, and on 18 June 2010 the Tribunal wrote to the applicant advising him of a hearing date on 5 August 2010. In the meantime, on 25 June 2010 the Tribunal wrote to the applicant in a letter headed Invitation to Comment on or Respond to Information. The Tribunal in its letter told the applicant:
In the written statement which you provided with your Protection visa application, you stated that you were being persecuted because you are a distant relative of Hongzhi Li, the founder of Falun Gong. You did not state that you are a Falun Gong practitioner. There is a record in the Department file that at the interview on 31 March 2010, you made a claim that you are a Falun Gong practitioner. You claimed that you read the book Zhuan Falun in about 2003 and practiced from the end of 2004.[3]
[3] Court Book at 123
The Tribunal’s letter told him that the information was relevant to the Tribunal review, as his making a claim for the first time at the Department interview may lead the Tribunal to conclude that the claim was only made to strengthen his claim for protection. He was also told that this may lead the Tribunal to conclude that he is not a credible or a truthful witness. It may also lead the Tribunal to conclude that he is not a Falun Gong practitioner.
Certain other information was put to the applicant in the letter, including information about his claim, that he was employed from 1987 to 1999 at Shenyang Fangtian Real Estate Corporation, and that from February 2000 to November 2009 he was employed as manager at Shenyang Shenjing Decoration Projects Corporation. However, a report on the Department file indicated that the applicant had travelled to Australia as part of a group, and that information was given that checks were made with his workplace, which was a different company from the one that he was given. The Tribunal told the applicant:
This information is relevant to the Tribunal’s review, as it may lead the Tribunal to conclude that you did not own or manage a business, Shenyang Shenjing Decoration Projections Corporation. It may lead the Tribunal to conclude that you did not suffer any harm or detention as a result of your efforts to obtain payment for work undertaken by this business. This may also lead the Tribunal to conclude that you are not a credible or truthful witness.[4]
[4] Court Book at 124
The applicant provided a statement in reply along with some photographs on 18 July 2010. He attended the Tribunal hearing on 5 August 2010 and gave evidence.
The Refugee Review Tribunal Decision
In the Tribunal decision record his evidence and his claims were set out in some detail and can be found in the court book at pages 161 through to 165. The Tribunal set out the applicant’s evidence to the Tribunal at pages 167 through to 172. I note that at paragraph 60 the Tribunal states:
At the hearing the Tribunal put to the applicant the relevance of any finding as to his credibility as a witness. The Tribunal explained that it would, as part of the review, be assessing the genuineness of his claim for protection. The Tribunal would be relying to a significant extent on his evidence as to these claims, and would therefore need to be able to rely on his evidence as being truthful. To this end, any inconsistencies and omissions in his evidence could lead to an adverse finding as to his credibility, and this may lead to an adverse finding about his claims for protection.[5]
[5] Court Book 169 at paragraph [60]
The Tribunal noted that after the hearing the applicant requested time to submit information from Amnesty International Australia regarding the treatment of Falun Gong practitioners related to the applicant, and the Tribunal agreed that he should be given until 7 September 2010 to provide this information. On 6 September 2010 the applicant provided a further statement, along with witness statements and photographs, a ticket for an art show and information from Amnesty International. In its findings and reasons, the Tribunal found that the applicant was a citizen of the People’s Republic of China as shown by his passport. The Tribunal noted that he claimed to fear returning to China because of his association with Hongzhi Li, the founder of Falun Gong, and because of his own practice of Falun Gong. The Tribunal covered the applicant’s application for a Protection visa application, and noted that he had not claimed that he was a Falun Gong practitioner when he did so.
The Tribunal noted that the departmental records showed that when the applicant applied for his visa to come to Australia, he was shown as employed by a different company from that which he claimed in his Protection visa application and to the Tribunal. The Tribunal records this was put to the applicant who responded:
The applicant responded by saying that he said to the agent, “It does not matter what method you use; just get me to Australia.” The agent provided all the information.
The Tribunal accepts that the applicant may have left it to his agent to arrange his travel to Australia. However, the applicant had his own business and several employees. This would indicate that he would be in a financial position to travel to Australia, and there consequently appears to be no reason for false information to be given in the visa application made in China. The Tribunal is of the view that this leads to a conclusion that the applicant is not a credible witness.[6]
See court book, page 173, paragraph 96 to 97.
[6] Court Book 173 at [109]
The Tribunal throughout its findings and reasons expressed doubt as to the applicant’s credibility. Paragraph 100 the Tribunal stated that it was of the view that the omission of information by the applicant when giving evidence to the Tribunal, especially in response to specific questions from the Tribunal, indicated that he was not a reliable witness. The Tribunal noted that the applicant had given contradictory evidence and made changes in his claims over time, and formed the view that he was an unreliable witness and lacked credibility.
The Tribunal went on to find:
Given the applicant’s lack of credibility, his lack of knowledge of the claimed familial relationships with Hongzhi Li and the lack of reliable supporting evidence, the Tribunal is not satisfied that the applicant is related in any way to Hongzhi Li, the founder of Falun Gong.
The Tribunal also found that because the applicant was lacking in credibility, that it was not prepared to rely on documents tendered to support his claim, and it found that he was not arrested or detained and later released, as he claimed. The Tribunal accepted that the applicant had practised Falun Gong in Australia, but was not prepared to accept that this would lead to persecution in China. The Tribunal said:
However, this is subject to section 91R(3) of the Act, which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons, unless the applicant satisfies the decision-maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.[7]
[7] Court Book 177 at [125]
The Tribunal formed the view that the applicant undertook the practice of Falun Gong in Australia in order to strengthen his claims for protection. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason in the foreseeable future if he returned to China, and therefore found that he did not satisfy the criterion set out in 36(2)(a) for a Protection visa, and affirmed the decision not to grant the applicant a Protection visa.
Application for Judicial Review
The applicant applied for review of that decision by means of his application and affidavit filed 20 October 2010. He has not filed any written outline of submissions, and relies on the brief claims in his application and the brief statement in his affidavit. The applicant made an oral submission to the Court. He had also brought with him a computer-typed statement in Chinese. He indicated that he was unable to read that out because he was suffering from a throat problem, a cough, and sought permission for the interpreter to read the statement out. That permission was granted.
The applicant complained that the Tribunal did not believe the material that he submitted, especially about his Visitor’s visa issue. He complained that the Tribunal did not believe his true circumstances. He said he left the country on a Tourist visa and had no idea how it was organised. He did not know how the agent got the visa. When he told the Tribunal his true situation, they did not believe him. They believed false documents, he said. They did not believe in the genuine situation that he told them. He said that was not reasonable. He said the Tribunal had referred to some information from his Tourist visa application.
On 25 June 2010 the Tribunal wrote to him asking him certain matters. He claims the Tribunal breached migration law because the Tribunal did not mention anything about the visa application that he submitted in China. When asked about this by the Court, the applicant indicated that he had asked his agent to obtain a visa for him to get to Australia and paid the agent. He did not know what sort of a visa he got or what information was given to the Australian authorities in order for him to obtain a visa.
In the light of that admission, it appears somewhat hypocritical for the applicant to claim that the Tribunal breached migration law by not giving him information about the application for a Tourist visa, when it was clear that he had no idea of what information was given to the Australian authorities in order for him to obtain a visa to get to Australia.
The Minister for Immigration & Citizenship filed a response on 1 November 2010 opposing the application and the orders sought. The Minister’s lawyers filed a written outline of submissions on 20 January 2011. Mr Smith, who appeared for the Minister, relied on this outline of submissions, which was a comprehensive document that appears to me to meet all of the applicant’s claims. It was submitted that the Tribunal decision is a privative clause decision within the meaning of section 474 of the Migration Act, and therefore cannot be challenged unless it contains a jurisdictional error, referring to Plaintiff S157/2002v Commonwealth[8].
[8] (2003) 211 CLR 476
As to the applicant’s first ground, it was submitted that the applicant appeared to be asserting that the Tribunal was biased and had no basis upon which to make its findings. That ground, it was submitted, was without merit, and on the question of actual bias the Court was referred to the decision of Lloyd-Jones FM in SZLMK v Minister for Immigration & Citizenship[9] at [22]. It was further submitted that there was no proper evidence to support any assertion that the Tribunal was actually biased.
[9] [2008] FMCA 1372
It was also submitted that there was nothing on the face of the decision to indicate any apprehended bias or any apprehension of bias, or that the Tribunal had a mind incapable of alteration. Reliance was placed on Minister for Immigration & Multicultural Affairs v Jia[10] at 532. It was submitted that there was nothing to suggest that a fair-minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. Reliance was also had on Re Refugee Review Tribunal; Ex parte H[11] at 434 [27].
[10] (2001) 205 CLR 507; [2001] HCA 17
[11] (2001) 179 ALR 425; [2001] HCA 28
It was submitted that it was for the Tribunal to determine whether, given the totality of the evidence and other material available to it, that it was satisfied that the applicant is a person to whom Australia owes protection obligations. In this case, it was submitted, the Tribunal found the applicant was not a witness of truth. It was submitted further there was no jurisdictional error, as the Tribunal did not need to have evidence to disprove the applicant’s claim in order to affirm the decision under review.
In respect of the applicant’s second ground, which claimed that the Tribunal was affected by jurisdictional error, as it involved the denial of procedural fairness, it was submitted that that ground cannot be made out because the Tribunal complied with its obligations under the Act, including sections 424A and 425.
In respect of the applicant’s third ground, which asserted that the Tribunal had failed to consider an integer of his claims, namely his situation in China, it was submitted that the Tribunal did consider the applicant’s position in China in detail, in paragraphs [93] to [123] of its reason for decision. Those reasons disclosed that it considered each and every claim including his situation in China; thus it is submitted that no error appears. Reference was made to the applicant’s affidavit accompanying his original application, where he asserted that he needed religious freedom and feared to go back to China. This statement, it was submitted, merely invites merit review.
Conclusions
In considering the applicant’s claims of jurisdictional error on behalf of the Tribunal, it is clear that the basic reason that the Tribunal did not accept the applicant’s claims was that it did not accept that the applicant was a witness of truth. The question of credibility, as has been held on many occasions, is a factual matter, and it is a matter for the Tribunal. In this case, the Tribunal found that the applicant was not credible. That is a finding that was open to it on the evidence.
As to the applicant’s individual claims, he first of all submits that the Tribunal considered his case unfairly without substantive evidence. It is well known that the Tribunal does not need to have evidence to disprove an applicant’s claim. It is for the applicant to prove that he is entitled to a visa under section 65 of the Migration Act.
A claim that the applicant’s case was considered unfairly is claim of bias, whether actual or apprehended. Bias is a very serious claim. An allegation of bias is serious because it alleges bad faith on the part of the decision-maker. It must be strictly alleged and strictly proved and it will rarely, if ever, be proved merely by reading the Tribunal’s reasons for decision (see SBBS v Minister for Immigration &Multicultural & Indigenous Affairs[12] at [42] to [48] inclusive). There is no evidence of bias, either actual or apprehended, so the applicant’s first ground must fail.
[12] (2002) 194 ALR 749; [2002] FCAFC 361
The applicant’s second ground is that procedural fairness has been denied. There is no evidence in support of that. I am not of a view that it has been shown that there was any denial of procedural fairness. The Tribunal invited the applicant to attend a hearing under the provisions of section 425 of the Act. The invitation to the hearing complied with the Act, in that it set out the time, date and place, and it advised of the Tribunal’s power under section 426A of the Act. The applicant attended the hearing, where he was provided with an interpreter in the Mandarin language.
The applicant, prior to the hearing, had received a letter from the Department inviting him to comment on certain information and he did so. After the hearing, the applicant sought an extension of time to provide further information for the Tribunal to consider. The Tribunal agreed to that and gave him until 7 September. He provided that information on 6 September and the Tribunal considered it. Where, then, is the lack of procedural fairness? The Tribunal appears to have complied with its requirement for procedural fairness under the Migration Act in every respect. There is no merit in the applicant’s second ground of review, and that ground fails.
The third ground is that the Tribunal did not consider the applicant’s situation in China, and that he would be put in gaol if he went back. A fair reading of the Tribunal’s reasons for decision shows that the Tribunal did consider his situation in China, and considered that situation in considerable detail. The fact is that the Tribunal did not accept the applicant’s claim because it did not believe him. Credibility is a matter for the Tribunal.
There is no jurisdictional error ascertainable in respect of any of the three grounds of review that the applicant claims. I am mindful of the fact that the applicant is not legally represented. I have read through the Tribunal decision and supporting materials thoroughly in order to ascertain whether it might be argued that there is any other jurisdictional error. I am unable to discern any error of that nature, whether it be jurisdictional error or other error. I am of the view that there is no jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by section 474 of the Migration Act. As such, it is not subject to remedies such as mandamus or certiorari which the applicant seeks. It follows, therefore, that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. In this jurisdiction, costs usually follow the event. The applicant has been unsuccessful in his claim. The amount sought for costs is $5865.00. It is the amount provided by the Court scale, and it would seem to me to be a reasonable figure. That said, the Court needs to consider whether an order for costs should be made at all, or for the amount sought.
The applicant says that he does not have the money to meet an order for costs. He is not in fulltime employment; he is doing odd jobs here and there. That is not of itself a ground for not making an order for costs. It is, however, a ground for considering time to pay. In my view, it is appropriate to make an order for costs and the amount of $5865 is appropriate. However, I will allow time to pay, and I allow six months to pay.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 2 March 2011
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