SZOSQ v Minister for Immigration
[2011] FMCA 873
•11 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOSQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 873 |
| MIGRATION – Review of Refugee Review Tribunal Decision – Refusal of a protection (class XA) visa – no reviewable error – application dismissed. The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act and have been give the pseudonyms SZOSQ, SZOSR, and SZOSS. |
| Migration Act 1958 (Cth), ss.36(2), 91R(3), 424A, 430 Migration Legislation Amendment Act (No.6) 2001 |
| Martinez v Minister for Immigration and Citizenship [2009] FCA 781 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Applicants S134/2002 (2003) 195 ALR 1 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 NAJT v Minister For Immigration Multicultural and Indigenous Affairs (2005) 147 FCR 51 SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 SZLGF v Minister for Immigration & Citizenship [2008] FCA 1369 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 SZOBS v Minister for Immigration and Citizenship [2010] FCA 1000 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| First Applicant: | SZOSQ |
| Second Applicant: | SZOSR |
| Third Applicant: | SZOSS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2350 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr B M Zipser (appearing on a direct access basis) |
| Solicitors for the Respondents: | Ms B Rayment of Sparke Helmore Lawyers |
ORDERS
The application filed on 1 November 2010 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to this application.
For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), SZOSQ is appointed as litigation guardian of SZOSS, and is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of her appointment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2350 of 2010
| SZOSQ |
First Applicant
| SZOSR |
Second Applicant
| SZOSS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 23 November 2010 the first respondent was required to file a folder of materials which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified the Court Book (“CB”).
On the date of the hearing the CB was marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing the applicants were granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any supporting affidavit material. The amended application was filed in Court at the commencement of the hearing. No objection was raised to this course, but Ms Rayment informed the Court that the Minister for Immigration & Citizenship’s (the “Minister’s”) submissions were filed before receipt of the amended application or the applicants’ submissions in circumstances where counsel appeared at the First Court Date. Ms Rayment indicated that should anything arise during the course of the hearing she was to reserve her position to file further submissions in those circumstances. The second procedural issue concerns the third applicant who is a minor aged approximately 14 years. His mother, who is the first applicant, consented to being appointed as the litigation guardian of the third applicant and an order to this effect was made.
Background
In setting out the following background material I have either paraphrased or quoted directly from the submissions prepared by Mr Zipser and Ms Rayment. I have not made any further direct attribution as this would make the summary unwieldy. The information is provided to assist in the understanding of the nature of the application and not to establish any evidentiary point.
On 16 February 2010 the applicants (mother, father and son) arrived in Australia (CB 151 at [2]). On 30 March 2010 the applicants applied for protection visas (CB 1 – 53). In relation to those applications the first applicant (the applicant mother) submitted refugee claims (CB 13 – 26, 43 – 44). The claims are set out in a two page typed statement at CB 43 – 44. The second applicant (the applicant father) and the third applicant (their son) lodged applications as members of the first applicant’s family unit (CB 27 – 38). Their part of the application form commenced:
This part is for a member of a family unit who does NOT have their own claims to be a refugee, but is included in this application. If you DO have your own claims to be a refugee, complete Part C instead.
On 26 July 2010 a delegate of the Minister made a decision refusing to grant the applicants protection visas (CB 84 – 103). On 9 August 2010 the applicants applied to the Refugee Review Tribunal (the “Tribunal”) for review for the delegate’s decision (CB 104 – 108). On 14 September 2010 there was a hearing before the Tribunal (CB 119).
At the hearing, the first and second applicants and two further witnesses (Zeng Lin and Xiao Yu) gave evidence (CB 119, 157 – 160). On 8 October 2010 the Tribunal made a decision affirming the delegate’s decision not to grant the applicants protection visas (CB 150 – 168). On 1 November 2010 the applicants filed proceedings in this Court seeking judicial review of the Tribunal’s decision.
The Applicants’ Claims
The applicants are a wife, husband and their son who are citizens of the People’s Republic of China and arrived in Australia on a subclass 676 tourist visa on 16 February 2010. They then applied for a protection (class XA) visa on 30 March 2010 (CB 1 – 38). Only the first applicant (wife) made refugee claims. The second applicant (husband) and third applicant (son) applied as dependent members of the first applicant’s family unit. The applicants appointed a migration agent to assist them in connection with their protection visa application (CB 39 – 42).
The applicants’ claims are set out in a typed 3 page statement attached to the application (CB 43 – 45). These claims were expanded upon by the first applicant in her interview before the delegate (CB 155 – 156 at [33] – [43]) and at the Tribunal hearing (CB 156 – 161 at [46] – [67]). Essentially, the first applicant claims that she was introduced to Falun Gong by her uncle in 1998. She stopped practicing in 1999 after it was banned by the Chinese Government but resumed practicing in 2004 because she suffered from ill health. She practiced with her uncle and assisted him in distributing literature about the benefits of Falun Gong and criticising the Chinese Government for its treatment of Falun Gong practitioners. On 22 September 2009 she was caught by police while preparing some pamphlets and was sentenced to two years in a re-education camp. Her husband secured her release on 30 January 2010 after giving an undertaking to return to prison in six months time. Instead, the first applicant and her family fled to Australia. She claimed that if she were to return to China she would be forced to complete her two year sentence and be prosecuted for being a Falun Gong practitioner and an activist in China and Australia.
Delegate’s Decision
On 22 June 2010 the Applicants’ migration agent sent a letter to the delegate (CB 63) enclosing a statutory declaration from Jian Hu dated 19 June 2010 (CB 67 – 68), a detention certificate dated 22 October 2009 (CB 65 – 66) and a medical release certificate dated 20 January 2010 (CB 64). On 28 June 2010 a delegate of the first respondent invited the first applicant to attend an interview scheduled on 20 July 2010 (CB 69 – 72). On 14 July 2010 the applicants’ migration agent sent a letter to the delegate enclosing a statutory declaration from Zeng Lin dated 4 July 2010 (CB 74), a news extract from “Minghui website” (CB 75), photographs of the first applicant purportedly taken in March 1999 (CB 76 – 82), and a copy of the first applicant’s employee card issued in January 1999 (CB 83).
On 26 July 2010, the delegate made a decision refusing to grant the applicant a protection visa (CB 86 – 103). The delegate found that the first applicant’s oral evidence given at the interview to be “vague” and implausible (CB 100 – 101). The delegate found that the first applicant was unable to elaborate upon her knowledge of Falun Gong or the contents of the material she claimed to have distributed (CB 100.5 – 101.1). On the basis of the accepted Independent Country Information (“ICI”) that indicated that fraudulent documents were easily obtained in China, the delegate gave little weight to the documents provided by the applicant in support of her claim (CB 101.4). The delegate found that on the basis of the ICI that her claims were undermined by her ability to depart China on her own passport without any difficulty (CB 102). The delegate also took in to account the photographs provided by the first applicant in support of her claim to have practiced Falun Gong since arriving in Australia, but disregarded this conduct on the basis that he was satisfied that this was done for the sole purposes of strengthening her claim to be a refugee (CB 102.5). The delegate therefore found that the first applicant’s claimed fear of persecution was not well founded (CB 102.7 – 103.2).
Proceedings before the Tribunal
On 9 August 2010, the applicants lodged an application with the Tribunal to review the delegate’s decision (CB 104 – 107). They continued to be represented in relation to the review by her appointed migration agent (CB 108). By letter dated 25 August 2010 and sent by the Tribunal to the applicants through their migration agent, the applicants were invited to attend the hearing before the Tribunal scheduled on 14 September 2010 (CB 112 – 115). The first and second applicants accepted that invitation (CB 116 – 118) and attended the hearing on 14 September 2010 with their agent (CB 119 – 121; 156 – 161 at [46] – [67]). Copies of pages from the first applicant’s passport were provided at the hearing (CB 122 – 127). The Tribunal also took evidence from the applicants’ three witnesses, Mr Lin, a Falun Gong leader in Sydney (CB 159 – 160 at [62] – [63]), Mr Wu, a fellow Falun Gong practitioner (CB 119), and Mr Yu, a friend of the applicants (CB 160 at [64]).
On 16 September 2010 the Tribunal wrote to the applicants pursuant to s.424A of the Act (CB 129 – 132). The letter referred to inconsistencies in the evidence given by the applicants at the delegate’s interview and at the Tribunal hearing, between the first and second applicants, and in the first applicant’s account of her conversations with Mr Hu who had provided a statutory declaration to the Tribunal on 19 June 2010. The letter also referred to independent information which indicated that fraudulent documents were easily obtained in China.
The identified inconsistencies did not constitute “information” for the purposes of s.424A(1) and so were not required to be put to the first applicant for comment under 424; SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415. However, the Tribunal’s cautious approach was understandable in the present case given that the component information that gave rise to the inconsistencies was not exempt from s.424A(1) by any of the exemptions in s.424A(3); SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 at [30]. Similarly, although the ICI was not required to be given because of the exemption in s.424A(3)(a) no error is revealed.
On 1 October 2010, the applicants’ migration agent wrote to the Tribunal providing submissions in response to the Tribunal’s s.424A letter (CB 133 – 136). The Tribunal considered those submissions (CB 163 -164 at [69] – [73]). Enclosed with this letter was the written information that the first applicant gave to Jian Hu (CB 164), as well as two internet articles on the differences between reform and re-education through labour in China (CB 137 – 146).
The Tribunal’s Decision
In a decision of Andrew Jacovides dated 8 October 2010 RRT case number 1006632 the Tribunal affirmed the delegate’s decision to refuse the applicants’ application for protection visas (CB 150 – 167). The Tribunal was not satisfied that the first applicant had provided a truthful account of her circumstances in China (CB 164 – 165 at [78]). It found that she had fabricated her core claim relating to her involvement with Falun Gong in China and her associated claims of harm with the authorities to enhance her protection visa application. The Tribunal was therefore not satisfied that the first applicant had been a genuine and committed Falun Gong practitioner (CB 164 – 165 at [78]; 166 at [86]).
The Tribunal’s adverse credibility findings were based on a number of factors that were open to it as the sole arbiter of the facts and evidence. For example the Tribunal relied upon indentified inconsistencies in the first applicant’s evidence and inconsistencies between her evidence and the evidence of the second applicant and her two witnesses Mr Lin and Mr Yu (CB 165 at [79] – [81]). In particular, it identified inconsistencies between her evidence and that of her husband’s concerning when they saw each other after she was detained. The Tribunal also found that the first applicant had not given consistent evidence at the hearing and interview regarding her Falun Gong activities in China (CB 165 at [79]). The Tribunal formed the view that the inconsistencies arose “because the claims were fabricated and the applicants could not recall and repeat the claims consistently” (CB 165 at [81].
The Tribunal considered the documentary evidence provided by the first applicant in support of her claims and found that these had been “fabricated or contrived by the applicant to enhance her protection visa application” (CB 165 – 166 at [82]). In forming its adverse credibility finding the Tribunal considered but did not accept the first applicant’s explanation for the identified deficiencies in her evidence (CB 165 at [79]). The Tribunal accepted that the first applicant had been involved with a Falun Gong group in Australia but was not satisfied that she had a genuine interest in Falun Gong and disregarded this conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (the “Migration Act”) (CB 166 at [85]).
Accordingly, the Tribunal was not satisfied the first applicant would be targeted or mistreated by the authorities in China in the reasonably foreseeable future for being a Falun Gong practitioner (CB 166 at [86]). As a consequence, the second and third applicants’ application also failed (CB 167 at [87]).
Ground One – Sur Place Issue
Ground One of the applicants’ amended application was:
The Tribunal failed to consider whether there was a real chance that the applicant father or the third applicant, if required to return to China, would suffer persecution in China as a result of the Falun Gong activities undertaken by the applicant mother in Australia, and disregarded the involvement of the applicant mother in Falun Gong in Australia in assessing whether Australia had protection obligations to the applicant father and the third applicant.
Mr Zipser submitted that the Tribunal found that the applicant mother engaged in Falun Gong activities in Australia:
The Tribunal accepts that the applicant has been involved with a Falun Gong group in Australia and that she has participated in various practice sessions and protest activities with this group.
(CB 166 at [85])
The Tribunal then referred to s.91R(3) of the Migration Act and found:
The Tribunal is not satisfied that the applicant participated in Falun Gong activities in Australia for any other purpose otherwise than for the purpose of strengthening her claim to be a refugee. Accordingly the Tribunal will disregard the applicant’s involvement with Falun Gong in Australia.
(CB 166 at [85])
Mr Zipser acknowledged that in considering whether Australia had protection obligations to the applicant mother, the Tribunal correctly applied s.91R(3) of the Migration Act.
The argument advanced by Mr Zipser was that the Tribunal was also required to consider whether Australia had protection obligations to the second applicant and the third applicant in relation to this issue:
a)The Tribunal found that it “will disregard the applicant’s involvement in Falun Gong in Australia” (CB 166 at [85]). However the Tribunal was not entitled to disregard this evidence in considering whether Australia had protection obligations to the second and the third applicant. Where the Tribunal wrongly disregarded evidence to which it must have regards, there has been jurisdictional error.
b)The Tribunal did not consider whether there was a real chance that the second or the third applicant, if required to return to China, would suffer persecution as a result of the Falun Gong activities undertaken by the first applicant in Australia. Thus the Tribunal failed to consider an issue in the proceedings which is a jurisdictional error.
c)The Tribunal stated that the second and the third applicant “indicated in the application that they did not have individual claims to be refugees and that they were applying only as members of” the family of the applicant mother (CB 167 at [87]). The mere fact that an applicant for a protection visa does not make an individual claim to be a refugee does not mean that the Tribunal is not obliged to consider whether Australia has protection obligations to the applicant. The Tribunal erred in its reasoning process.
Mr Zipser argues that each family member applied for a protection visa and on the face of the material before the Tribunal it was or should have been evident that there may be a risk to the second or third applicants as a result of the first applicant’s activities in Australia. It is a matter for the Tribunal as to whether there was such a risk and it may be that on consideration of the ICI that there wasn’t a risk to family members of people who practice Falun Gong in Australia or China, but equally, there may be a risk. Mr Zipser contends that it is for the Tribunal to have determined and the argument that is advanced is that the Tribunal failed to deal with that issue which was in evidence on the material before it.
In support of this argument Mr Zipser referred the Court to the decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 per Black CJ, French and Selway JJ under the sub-heading in that decision Failure to deal with a claim – express and implied claims at [58] where their Honours said:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it — Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. …
Mr Zipser contended that this was a case where a person was silent and made no submissions that they were a member of a particular social group but the Full Court is saying in NABE (supra) that the Tribunal may be required in its review function to consider the question of whether a member of a particular social group, even though that claim was not expressly advanced by the applicant, should be entitled to protection. It would depend on the material and the evidence put before the Tribunal.
Mr Zipser then referred the Court to paragraph [62] of NABE which contains a proposition in that case that he needed to distinguish. At [62] the Full Court said:
Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa — Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S 134/2002 (2003) 195 ALR 1 at 8–9 [31]-[32]. …
Mr Zipser submitted that a very important clearly distinguishable fact in the High Court decision of Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Applicants S134/2002 (2003) 195 ALR 1 was that in the matter of the protection visa application by the mother and child was before the decision maker and Tribunal they did not know whether the husband was alive or dead and there was no evidence that was clearly before the Tribunal that the husband was alive and had in fact been granted a visa. It was a case where there was an unknown fact which lawyers on behalf of the mother and child sought to make something of after their application for a protection visa was refused. In the present case before this Court the mother, father and the child all making their claims for protection visas in the one claim which was an evident and obvious issue.
In NABE at [63] their Honours stated:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. …
Mr Zipser then referred the Court to the decision in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte S134/2002 (supra). In [2] of the High Court’s judgment an application was made for protection visas by a mother and a son and in [7] the mother said in her original application that her husband, an Afghan national, had been “missing since 2 years ago” and the plurality of the High Court said in [8]:
It is now accepted that the Department’s file, which was before the Tribunal, included two pages marked with folio numbers 121 and 124. Folio 121 indicates that the husband was in possession of a temporary protection visa and had made an application for a permanent protection visa. …
The wife and son did not know of this information and did not raise it before the department or the Tribunal. In [10] the plurality of the Court said that:
It is apparent from the tenor of the Tribunal’s reasons that either it did not notice the presence of either folio on the file or it did not appreciate their significance. …
Then at [18] and [19] the plurality of the Court stated:
[18] Section 36(2), as it stands after amendments by statutes up to and including the Amendment Act, reads:
"A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa."
[19] It will be observed that in this form the Act itself now plainly draws a distinction between those to whom Australia has protection obligations and those who are spouses or dependants of such persons who hold protection visas. This distinction highlights an important point respecting the scope of the Refugees Convention and the Refugees Protocol(39).
Then at [29] the plurality of the Court said:
Nevertheless, it is submitted for the prosecutors that, on the proper construction of the Regulations, the Tribunal was obliged to consider entitlement to protection visas by reason of membership of the family unit of a person who, at the date of the Tribunal's decision, was an applicant for a permanent protection visa and who already had been granted a temporary protection visa. It is on that footing that the status of the husband was classified by the prosecutors as a material fact which the Tribunal had been obliged to consider in the discharge of its obligation under s 414(1) to exercise the jurisdiction conferred by Pt7 of the Act.
The plurality of the High Court said those submissions should not be accepted and at [31] states:
None of the prosecutors relied upon the position of their husband and father as the main applicant to found a claim that they fell within the second category. The reasons why they did not do so are apparent, at the least, from their then state of knowledge respecting his whereabouts. The Tribunal was required to review the decision of the delegate who, in turn, had been required (by s 47) to consider the application and the criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis.
Mr Zipser contended that the point of distinction was that at the time the mother and son submitted their visa application, as far as they were aware, they did not know the whereabouts of the husband and there was nothing in the information they put before the Tribunal which suggested that the husband might have a visa in Australia which in fact he did. In those circumstances the High Court said that there could be no obligation for the Tribunal to consider a case that was never made and was not evident from the material for consideration before the Tribunal. In the matter before this Court, however, it is different because it was evident from the material before the Tribunal that the mother’s Falun Gong activities in Australia raised a question as to whether the husband and the son faced a chance of persecution in China.
Ms Rayment submitted that in respect of Ground One it was important to consider the fact that both the second and third applicants before this Court could not obtain a protection visa unless the first applicant obtained a protection visa. In the decision in SZLGF v Minister for Immigration & Citizenship [2008] FCA 1369 per Graham J the only issue before the Tribunal in respect of the second and third applicants was whether or not they were in fact family members as asserted. At [43] and [44] his Honour stated:
[43] … The sole matter that was personal to her was whether or not she was the spouse of the first appellant. The Tribunal clearly addressed this and found that she was. In the circumstances, her claim for a protection visa had to rise or fall with the success of the first appellant’s claim to be a refugee within the meaning of the Convention.
[44] Nothing in the statement that was provided with the Application for Review lodged by the appellants with the Tribunal on 6 June 2007 converted the second appellant’s claim for a protection visa from one made under s 36(2)(b) of the Act into one under s 36(2)(a) of the Act. …
At CB 159 at [58] the second applicant gave evidence. He said that he had no involvement and could not provide any information.
Ms Rayment submitted that not only was this a case where the applicants were represented all throughout the process, the applicants made the application in terms that they did, but at the hearing before the Tribunal the second applicant said “I Don’t know anything about it”. There is nothing in either the application to the Tribunal or in his evidence before the Tribunal that converted it from a s.36(2)(a) to a s.36(2)(b) application.
Ms Rayment referred to the submissions made by Mr Zipser in the Full Court decision in NABE. The Court in NABE was dealing with the primary applicant which is to be distinguished from the matter before this Court as the second and third applicants did not at any time try to make a claim similar to that advanced in NABE.
Consideration – Ground One
The Court Book reveals that the applicants retained the services of a migration agent by the name of Southpac Services for the preparation of their protection visa application (CB 1). In “Form B – Persons included in this application and family composition form 866 B at 14 – Assistance with this form” (CB 10) it indicated that a Ms Esther Yu who is a registered migration agent assisted in the preparation of the application forms for all family members. The agent also completed a “Form 956 – Appointment of a migration agent or exempt agent or other authorised recipient” (CB 39 – 42) which was also lodged with the application. The first applicant completed “Form C – 866C Application for an applicant who wishes to submit their own claims to be a refugee – application for a Protection (class XA) visa” (CB 13 – 26). The details of the first applicant’s claims are contained in a summary of statement (CB 43 – 44).
The first applicant’s husband and son both completed a “Form D – 866D Application for a member of a family unit” which stated on its face “This part is for a member of a family unit who does NOT have their own claim to be a refugee, but is included in this application. If you DO have your own claim to be a refugee, complete a Part C instead” (emphasis added). Although in the first applicant’s statement the husband is mentioned in respect of a number of different aspects there is no separate claim made by the second or third applicant in respect of being persecuted and seeking protection.
At the time of filing the protection claim the applicants were represented by a registered migration agent who would have been well aware of the significance of the structure of the Migration Act and the application being made in that for the second and third applicants to be successful in obtaining protection it was totally dependant on the primary applicant’s success in their claim. Section 36(2) of the Migration Act states:
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
…
(emphasis added)
Clearly the first applicant is seeking a visa under s.36(2) (a) whereas the second and third applicants are seeking visas under s.36(2) (b).
A new section 36(2) was introduced in to the Migration Act by Migration Legislation Amendment Act (No.6) 2001 and the Explanatory Memorandum indicates that the new subsection 36(2) provides that a criterion for a protection visa is that the applicant for a visa is:
· A non-citizen of Australia to whom Australia has protection obligations under the Refugee Convention; or
· A non-citizen of Australia who is a spouse or a dependent of a non-citizen who:
- is mentioned above; and
- holds a protection visa.
The Explanatory Memorandum indicates that the existing subsection 36(2) does not clearly apply to a non-citizen who falls within the second scenario. While the Refugee Convention does not require Member States to provide protection to a person solely by reason of their close family relationship with a person who is given protection under the Convention, it has been longstanding practice in Australia to allow the spouse and dependents in Australia of those persons found to be owed protection under the Refugee Convention to be granted a visa to remain with that person in Australia. New subsection 36(2) makes it clear that a non-citizen in Australia is eligible for a grant of a protection visa if he or she is a spouse or dependent of a non-citizen who is owed protection obligation and holds a protection visa. This is the case even though this non-citizen does not himself or herself claim to be a refugee to whom Australia owes protection obligations under the Convention.
In this matter clearly the first applicant’s husband and son have not articulated any claim for protection and in the words of his Honour Graham J in SZLGF their “claim for a protection had to rise or fall upon the success of the first applicant’s claim to be a refugee within the meaning of the convention”. The situation would have been distinctly different if the second and third applicants had completed form 866C and either advanced their own claim or referred to the primary applicant’s statement of claim and indicated that they would also be persecuted because of their relationship with the primary applicant. That has not been done upon the informed advice of the registered migration agent. The submissions being made to the Court are in effect asking both the delegate of the Minister and the Tribunal to speculate as to the nature of a claim not articulated by either the second applicant or third applicant. In these circumstances I cannot be satisfied that Ground One of the Amended Application can be sustained and it should be dismissed.
Ground Two – Back Pain Claim Issue
Ground Two of the Applicants’ Amended Application was:
The applicant father claimed that the applicant mother “was suffering from back pain and Falun Gong cured her”. The Tribunal failed to consider this claim.
Mr Zipser referred the Court to [60] (CB 159) of the Tribunal decision where it stated:
[SZOSR] stated that he had a good life in China and he would not have abandoned that life including his property and car to flee to Australia unless it was necessary to do so. The Tribunal commented that the applicant was suffering from back pain and that appeared to be the main reason she was involved in Falun Gong. He was asked if he and his wife considered seeking other forms of treatment for back pain which would not attract adverse interest from the authorities or necessitate their departure from China. He stated that Falun Gong was the only treatment that assisted her.
(emphasis added)
Mr Zipser submitted that these claims, if they were true, supported the position that the applicants were entitled to protection visas, however he contended that the Tribunal did not deal with these claims and where the Tribunal does not deal with a claim, there is a jurisdictional error: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [44] – [47].
Mr Zipser contended in the Findings and Reasons (CB 164 – 167) the Tribunal did not address the claim being made by the second applicant. The Tribunal did not say that it didn’t believe the second applicant or even if it did believe the second applicant, that did not mean the first applicant faced a well founded fear of persecution in China which falls short of the requirements of the Tribunal to deal with a claim.
Ms Rayment argued that the information relied upon in respect of Ground Two was not a claim as the second applicant was giving evidence before the Tribunal. He was not making a claim on behalf of the first applicant, but rather was giving evidence in support of her claim. The substance of the argument being advanced on behalf of the Applicant’s claim before the Tribunal was that she was suffering from back pain and that Falun Gong assisted in her rehabilitation and cured her. This was dealt with by the Tribunal explicitly at [84] (CB 166) where it stated:…The only apparent benefit she was able to identify in Falun Gong was relief from back pain which in the Tribunal’s view is a rather superficial appraisal of Falun Gong. After considering the Applicant’s evidence regarding her interest in Falun Gong, in conjunction with the Tribunal’s findings that the Applicant had essentially contrived her core claim relating to Falun Gong to obtain a protection visa, the Tribunal cannot be satisfied that the Applicant had a genuine interest in Falun Gong…
Ms Rayment submitted that a witness giving evidence in support of another person’s claim does not make it a separate claim. However, it was clear that the subject matter had been dealt with by the Tribunal in its findings and reasons.
Consideration – Ground Two
In the Tribunal decision under the heading claims and evidence at [23] (CB 153) it stated:
The first named applicant indicated that in the protection visa application that she wished to submit refugee claims. Her husband, the second named applicant, and her son, the third named applicant, indicated that they did not have an individual claim to refugee status and that they were applying as family members of the first named applicant. …
Then at [35] (CB 155):
The applicant stated that her husband was not a Falun Gong practitioner and he had no views regarding her involvement with Falun Gong. She stated that he did not object to her involvement with Falun Gong.
Then at [46] (CB 156 – 157):
The applicant attended the hearing accompanied by her husband, three witnesses, and her adviser. …
The second applicant gave evidence to the Tribunal which is recorded at [57] – [61] (CB 158 – 159). In none of those paragraphs did the second applicant make any specific claim for protection on his own behalf but merely responded to questions by the Tribunal Member in respect of his wife’s condition and the alleged benefit in the treatment of her back pain by her practice of Falun Gong. His comments at [60] (CB 159) which are relied upon by Mr Zipser and extracted at [40] above describe his circumstances in China and what he sacrificed in order to accompany his wife, the first applicant, to Australia but he did not advance or articulate any claim that he would suffer if he were to return to China. I am satisfied that the suggestion that the Tribunal has overlooked claims made by the second applicant while giving evidence in support of his wife cannot be sustained and should be dismissed.
Ground Three – Falun Gong Knowledge Issue
Ground Three of the Applicants’ Amended Application was:
One reason the Tribunal rejected the claims of the applicant mother was because it found that ”the only apparent benefit she was able to identify in Falun Gong was relief from back pain which in the Tribunal’s view is a rather superficial appraisal of Falun Gong”. The Tribunal overlooked evidence given by the applicant mother in making this finding.
Mr Zipser submitted that the first applicant claimed that there were a number of benefits she obtained from Falun Gong. For example:
a)She stated in her two page typed Summary of Statement (CB 43):
After resuming my Falun Gong practice I became better and better both physically and spiritually. I found many life truths in practicing Falun Da Fa. Falun Da Fa has become my spiritual food and belief.
b)As recorded by the Tribunal, the first applicant gave the following evidence to the Tribunal:
·The Applicant wife was a Falun Gong practitioner because she wanted to be a good person. She stated that it improved her health. (CB 155 at [37])
·She indicated that her problems with back pain was the reason she returned to Falun Gong and why she maintained her involvement with it. She stated that after her car accident she was very bad tempered and her husband divorced her. The Applicant stated that when her back pain disappeared through Falun Gong she became a better person and her husband re-married her. (CB 157 – 158 at [51])
The Tribunal found at [84] (CB166) of it’s decision record:
… The only apparent benefit she was able to identify in Falun Gong was relief from back pain which in the Tribunal’s view is a rather superficial appraisal of Falun Gong. After considering the Applicant’s evidence regarding her interest in Falun Gong … the Tribunal cannot be satisfied that the applicant has a genuine interest in Falun Gong.
As the evidence above indicates, the Applicant identified benefits she was able to identify in Falun Gong other than relief from back pain such as:
· Her general physical heath improved;
· Her spiritual health improved;
· She “found many life truths”; and
· She “became a better person and her husband re-married her” .
Mr Zipser argued that as the Tribunal did not regard in its findings at [84] the other benefits listed in the above paragraph, the Court should consider that the Tribunal overlooked this evidence of the Applicant and is a jurisdictional error: NAJT v Minister For Immigration Multicultural and Indigenous Affairs (2005) 147 FCR 51 per Madgwick J with whom Conti J agreed in the majority, with Hill J in dissent. This is a case where a delegate made a decision and an application was made directly to the Federal Court to set-aside the delegate’s decision. His Honour, Madgwick J at [115] stated:
The delegate then said:
On 22 May 2002 a letter was received from Mr William Wei of the Fa Lun Fo Xue Association of Australia Inc claiming that the [appellant] is one of 31 genuine Falun Gong practitioners seeking protection in Australia and that she would face serious persecution if she were required to return to China.
That is all that the delegate said about the letter. Madgwick J then interpolated the full text of Mr Wu’s letter on account of its importance and his Honour noted at [117]:
The delegate at no point provided any reason for depreciating Mr Wei’s evidence.
In his Honour’s findings at [205] his Honour considered the submission that the delegate was obliged to have regard to the letter and had failed to do so. At [212] his Honour said:
… Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. …
In those circumstances, his Honour concluded that the delegate had not had regard to the letter. Mr Zipser asked this Court to draw the same inference that the first applicant gave evidence both in written form and orally of the benefits she had obtained from Falun Gong. At [84] of the Tribunal decision, he considered the very important question of whether the first applicant had a genuine interest in Falun Gong and closely connected this in the Tribunal’s reasoning process. Of the benefits that the first applicant said she had received from Falun Gong the Tribunal only quotes one of those benefits and does not refer to the other benefits in this important part of the reasoning process.
Mr Zipser contended that it was open to this Court to conclude that the Tribunal had overlooked that evidence and that this was a jurisdictional error.
Mr Zipser acknowledged that if the Tribunal had overlooked this piece of evidence, it did not necessarily mean there was a jurisdictional error. The case law on this point is not entirely clear but the authorities indicate that the mere failure to overlook some evidence or a piece of evidence is not necessarily a jurisdictional error. In the Full Federal Court decision of VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 the Court found that the Tribunal had failed to consider a document which was arguably of critical importance. Similarly, in the decision of Martinez v Minister for Immigration and Citizenship [2009] FCA 781 per Goldberg J, the Court found that the Tribunal had ignored and failed to have regard to strongly corroborative and relevant material and in those circumstances, His Honour found that there was a jurisdictional error. In SZOBS v Minister for Immigration and Citizenship [2010] FCA 1000 per Bromberg J referred back to some earlier Full Federal Court decisions which stated that the evidence overlooked had to be of pivotal importance. Mr Zipser submits that in circumstances where the Tribunal was making an important finding, as it did at the end of [84] of its decision, it was an important issue and the evidence was of great importance.
Ms Rayment submitted that in respect of the identification of further benefits by the Applicant which she claimed she obtained by carrying out Falun Gong, the Tribunal addressed this issue at [51] (CB 157) which states:
The Tribunal asked the applicant if her health problems in China were physical, psychological or both. She stated that her problems were strictly physical. She stated she had back pain. The Tribunal asked the applicant if she had received or was receiving medical treatment for her back pain. She stated that she did not require medical treatment as Falun Gong completely cured her. She indicated that her problem with back pain was the reason she returned to Falun Gong and she maintained her involvement with it. She stated that after the car accident she was very bad tempered and her husband divorced her. The applicant stated that when her back pain disappeared through Falun Gong she became a better person and her husband re-married her. The Tribunal asked the applicant if she considered receiving any other form of treatment, such as treatment by a doctor, which could assist her condition and avoid the hazards associated with Falun Gong. She stated that only Falun Gong helped her.
Ms Rayment contended that the Applicant herself gave evidence that she indicated that the problem with her back was the reason she returned to Falun Gong and why she maintained her involvement in it. It was at least open for the Tribunal to have concluded that was the reason for her involvement in Falun Gong. The conclusion at [84] must be read in terms of the paragraphs preceding being [78] – [83] where the Tribunal made adverse credibility findings in strong terms that the first applicant had fabricated her claim and gave very persuasive and cognitive reasons for coming to those conclusions.
Ms Rayment submitted that the fact that the first applicant was not aware what was contained in the pamphlets was addressed by the Tribunal by writing to the Applicant raising a number of concerns with the evidence given by the first applicant and the inconsistencies that arose with issues in relation to document fraud. The first applicant replied to that request through her advisor and the Tribunal had regard to that response but was not persuaded by the explanations provided. There were cogent and persuasive reasons given as to why the Tribunal did not accept the first applicant’s claims. The Tribunal was not satisfied by the response it received and was positively satisfied that the documents were fabricated. Ms Rayment contended that ground 3 did not rise above a request to this Court to review the merits of the decision.
Consideration – Ground Three
I agree with the submissions made by Ms Rayment that the Tribunal specifically addressed the question of the identification of further benefits the first applicant claims she obtained by pursuing her activities in Falun Gong. In response to the question by the Tribunal Member to the first applicant which is recorded at [51] of the Tribunal Decision (CB 157 – 158) the first applicant herself stated that her problems were strictly physical and Falun Gong was her chosen remedy for this physical affliction. It is perfectly reasonable for a person who is obtaining relief for a debilitating physical condition to also experience a sense of well being which may be expressed or described in various terms.
The separate categories identified by Mr Zipser as additional or extra benefits flowing from the practice of Falun Gong I believe can all be attributed to the feeling of relief that the first applicant was allegedly obtaining from the treatment method she had selected as being most appropriate for the symptoms of her back pain. I have no doubt that the alleged relief being experienced by the first applicant could also be expressed in a number of different ways other than the terms that she used to describe her improved situation emanating from the practice of Falun Gong. I am satisfied that the Tribunal considered the first applicant’s claimed benefits and did not overlook it as suggested by Mr Zipser.
If the first applicant’s claim was that she was suffering severe psychological problems as a consequence of the alleged back pain then this may have resulted in the Tribunal further inquiring in to the nature of the problems, but in the circumstance where the first applicant has denied that she was suffering from any psychological problems the enquiry was limited to the aspects of the physical suffering claimed by her. In this circumstance I am not satisfied that the Tribunal failed to have regard to or overlooked some evidence in respect of the claimed benefits that the first applicant was obtaining from the practice of Falun Gong. Consequently this Ground cannot be sustained and should be dismissed.
Ground Four – Witness Evidence Issue
Ground Four of the Applicants’ Amended Application was:
The witness Zeng Lin gave written and oral evidence that the applicant mother was a “genuine Falun Gong practitioner”. The Tribunal failed to have regard to this evidence in the course of making a finding to the contrary.
Mr Zipser referred to the Statutory Declaration provided by Zeng Lin who was the co-ordinator of the Falun Gong practice group. In his Statutory Declaration (CB 74) he stated:
I met [SZOSQ] at March 2010 in Hurstville. [SZOSQ] has been going to Hurstville Falun Gong practice site and Falun Gong reading groups for more than three months. She has also been active in participating in many Falun Gong activities, including all major events and large-scale parades. She is a genuine Falun Gong practitioner.
At [62] (CB 159 – 160)of the Tribunal decision, the Tribunal recorded:
The Tribunal took evidence from Mr Zeng Lin. He stated he met the [first] applicant in March 2010 when she joined one of the Falun Gong groups he was coordinating. He stated that she was an active member of a Falun Gong movement in Sydney and in his view she was a genuine Falun Gong practitioner. The Tribunal asked the witness if the applicant appeared to be an experienced Falun Gong practitioner when she first joined the group. He stated that she was. The Tribunal commented that it had a list published by Falun Da Fa organisation regarding the contact persons and coordinators of the various Falun Gong groups in Sydney. The Tribunal noted that his name was not listed and that Mr Jian Hu was listed as the contact person for the Hurstville group. The witness stated that he was not fluent in English and for that reason Mr Hu was listed for the Hurstville group rather than him. He stated that they worked together. The Tribunal discussed with Mr Zeng the applicant’s Falun Gong activities in Sydney. He indicated that her activities related mostly to the practice of Falun Gong. He was asked if she had participated in any activities of a political nature such as protests against the PRC government. He stated that he recalled one protest that she attended. He was asked if the applicant discussed with him her difficulties in China. He stated that he had no details regarding her difficulties in China but she had told him she was seeking a protection visa in Australia.
Mr Zipser submitted that the Tribunal on considering at [84] of its decision whether the first applicant was a genuine Falun Gong practitioner did not refer to this evidence. In circumstances where the evidence was important to the question of whether the first applicant was a genuine Falun Gong practitioner, the Court should infer that the Tribunal overlooked the evidence which was a jurisdictional error: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (supra).
Ms Rayment submitted that in respect of Ground Four, the applicants again were asking the Court to draw an inference that evidence had been overlooked. In the recent High Court decision of Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, his Honour Gummow J at [67] stated:
An applicant in the Federal Magistrates Court for judicial review of the Tribunal’s decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case. In Industrial Equity Ltd v DCT, Gaudron J made a similar point with respect to the ADJR Act. We are not concerned here with questions of a presumption of the regularity or validity of administrative action. - 48#48 Rather, the point to be made is that it fell to the first respondent to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error. There was certainly no burden upon the Minister to demonstrate the positive proposition that the Tribunal had indeed considered the request.
Ms Rayment submitted that this was in circumstances where the applicant before the Court had said there was an error and Rares J found that there was jurisdictional error on the basis that the Tribunal failed to consider or overlooked a request that the Applicant undertake a medical and the Court make it plain that the reasons of the Tribunal do not create an obligation under s.430. This is discussed at [69] of Gummow J’s decision:
The question whether the inference should have been drawn in the present case can only be addressed in the setting provided by the Migration Act, and in particular by reference to the requirement in para (b) of s 430(1) that the Tribunal provide a written statement which sets out the reasons for the decision. Contrary to the reasoning in the Federal Court, para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former. The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on a review”. There may be situations where a procedural decision forms part of the Tribunal’s “reasons for the decision” under para (b), but that is not so here.
Ms Rayment submitted that the case before this Court should be distinguished on the facts as the claims made on both Ground Three and Four that information identified has been overlooked. There is explicit reference by the Tribunal to that material. Specifically in respect to the witness, Zeng Lin in his Statutory Declaration refers only to the practice in Australia and refers to the fact that the witness met the Applicant in March 2010 and he speaks about conduct in Australia. At [62] of the Tribunal decision (CB 159 – 160 which is reproduced above at [63]) records the evidence given to the Tribunal. The witness repeated his evidence that he considered the Applicant was a genuine Falun Gong practitioner, however, when the Tribunal asked the witness if the first applicant discussed with him her difficulties in China he states that he had no details regarding this issue other than that she had told him that she was seeking a protection visa in Australia. Consequently, this was a witness who could speak only of the Applicant’s conduct in Australia and when asked by the Tribunal to give evidence could not add anything to it.
Ms Rayment submitted that it was not at all surprising that there is no reference to that evidence at [84]. However, at [85] the Tribunal stated that it accepted that the Applicant was involved in Falun Gong in Australia. This is an acceptance of the witness’ evidence which is of a personal opinion formed only from conduct of the first applicant in Australia. He could not speak to or have any relevance, let alone be of critical importance to the decision brought before the Tribunal as to whether or not she had been a genuine Falun Gong practitioner in China. The opinion that the witness was a genuine Falun Gong practitioner was the issue that the Tribunal had to consider and that witness could not speak when asked as to any details, even those details that might have been given by the first applicant herself to the witness of the difficulties the first applicant had faced in China.
Consideration – Ground Four
Again, I accept the submissions made by Ms Rayment that the claim that evidence has been overlooked cannot be sustained. There is no dispute that the first applicant participated in Falun Gong activities in Australia and this is acknowledged and supported by the evidence from Mr Zeng Lin. The Tribunal records that in its decision and there is no dispute on this issue, however, his evidence clearly states that he was not informed by the first applicant as to the nature of her problems in China and made no comment other than the fact that she was pursuing a protection visa in Australia. That admission may raise some speculative thought in the mind of Mr Zeng Lin as to the reasons for the first applicant to seek protection, but Mr Lin does not appear to have pursued this issue with the first applicant nor was the applicant forthcoming as to the nature of her problems.
The statutory declaration prepared by Mr Lin (CB 74) makes no reference to the first applicant’s activities in China and is limited to her activities in Australia. The evidence given by Mr Zeng Lin during the Tribunal hearing is recorded at [62] of the Tribunal Decision (CB 159 – 160) and is reproduced in this decision at [63]. The issue in question was addressed at the end of that paragraph and states:
… [Mr Lin] was asked if [the first applicant] discussed with him her difficulties in China. He stated that he had no details regarding her difficulties in China but she had told him she was seeking a protection visa in Australia.
Mr Zipser raised the complaint that this material was not addressed in the Findings and Reasons at [84] of the Tribunal’s Decision. On a fair reading of that paragraph, it is difficult to see that the evidence given by Mr Ling was at all relevant to those findings and if repeated would make absolutely no impact on the Tribunal’s reasoning. Consequently this Ground cannot be sustained and should be dismissed.
Conclusion
I am satisfied that the four Grounds upon which this Application is made cannot be sustained, and therefore the application should be dismissed with costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 11 November 2011
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