SZOVH v Minister for Immigration
[2011] FMCA 216
•31 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 216 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it denied the applicants procedural fairness, failed to consider the first applicant’s situation in China, asked the second applicant few questions and by reason that its consideration of the applicants’ claims was unfair. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SZOVH |
| Second Applicant: | SZOVI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2627 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 31 March 2011 |
| Date of Last Submission: | 31 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2011 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2627 of 2010
| SZOVH |
First Applicant
| SZOVI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first and second applicants, who are husband and wife respectively, are citizens of China. The first applicant claims that while in China he was a Falun Gong practitioner and distributor of materials on Falun Gong and that this subsequently led to his arrest.
The first applicant claims to fear persecution in China because of his religion.
After their arrival in Australia on 18 August 2007, the applicants applied for protection visas, the second applicant being included in the application as a member of the first applicant’s family unit. These applications were refused by a delegate of the first respondent (“Minister”) on 8 July 2010. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claim for protection visas are set out on pages 4 – 9 of the Tribunal’s decision.
The first applicant made the following claims in his application for a protection visa:
a)he is a Falun Gong practitioner;
b)a former colleague of his who was a follower of Falun Gong taught him the principles of Falun Gong and he started to practice it. His colleague dropped Falun Gong publicity materials in letterboxes from about 2004 and the first applicant began to assist him from March 2006 onwards;
c)on 13 August 2006 the police broke into his house and took him to the local police station where they tried to force him to confess to propagating Falun Gong. They also tried to force him to tell them the name of the “principal plotter”. When he refused to confess he was kicked and punched severely. He was detained for 24 hours and then set free because the police had no proof with which to charge him. His former colleague was, however, arrested and sentenced to 12 months’ gaol;
d)he was told that his former colleague reported him to the police for sending him some publicity material on Falun Gong and that this aroused the attention of the Chinese Government; and
e)he is afraid of being persecuted if he returns to China.
At the Tribunal hearing, the first applicant made the following additional claims:
a)he came to Australia in 2007 on a Skilled Migration Visa, leaving China, in part, because he had been persecuted in 2006;
b)he fears that he will be arrested and brainwashed if he goes back to China as the Communist Party views Falun Gong as a cult;
c)he is still in contact with his former colleague who introduced him to Falun Gong;
d)his former colleague was arrested in 2009 for distributing pamphlets and told the authorities that the pamphlets he was distributing had been provided by the first applicant. The first applicant believed that his former colleague gave this information to the authorities to lessen his sentence. When the first applicant rang to speak to his former colleague, the latter’s wife told him all this and she also warned him not to return to China. His former colleague had told his wife when she visited him in prison that the first applicant was in danger and that he should not return to China;
e)he had, in fact, not provided his former colleague with any literature;
f)he became involved with Falun Gong in 2005 and 2006 and his friend asked him to help distribute pamphlets because he had a car and could drive him around, whereas his friend only had a bicycle. They would go out at night secretly to hand out the pamphlets;
g)he practises Falun Gong in Australia on Friday nights from 6:30pm to 7:30pm and studies Fa afterwards, participates in protests and sometimes helps to distribute the Epoch Times on Sundays. He also listens to Master Li’s lectures on his MP3 player and practises Falun Gong at home;
h)he had been involved with the Parramatta practice site since about May or June 2010. Prior to that he moved around sites, sometimes going to Auburn, Hurstville and Belmore Park;
i)he had not applied for a protection visa until March 2010 because he still had a Skilled Migrant Visa. Although it permitted multiple entries he had not returned to China because he was in fear of harm; and
j)he was concerned about the presence of Chinese spies in Australia who may have witnessed his involvement in Falun Gong activities here in Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the first applicant was a genuine Falun Gong practitioner. In this regard:
i)the Tribunal did not accept that the first applicant participated in Falun Gong activities prior to May 2010. The Tribunal noted that the applicants’ applications for protection visas were lodged in March 2010 and it said that the timing of the first applicant’s participation in Falun Gong activities in Australia, when compared with the lodgment of the protection visa applications, together with the absence of prior involvement with Falun Gong, led it to not be satisfied that the first applicant’s Falun Gong activities were otherwise than for the purpose of strengthening the protection visa applications. Accordingly, pursuant to s.91R(3) of the Act the Tribunal disregarded this activity; and
ii)the Tribunal found the first applicant’s evidence of his claimed commitment to Falun Gong unconvincing and unpersuasive. In its view, the responses provided by the first applicant about Falun Gong were not commensurate with his claimed level of commitment to Falun Gong;
b)the Tribunal did not accept that the first applicant had involved himself in Falun Gong in 2005 or that he had assisted in secretly distributing Falun Gong literature. It also did not accept that the first applicant had been detained in 2006, finding that he had not elaborated on this claim in a manner or with sufficient detail such as to indicate that he was recounting an actual lived experience; and
c)the Tribunal did not accept that the first applicant has a friend in China, who, on his arrest in 2009 for distributing Falun Gong literature, told the Chinese authorities that the first applicant had provided that material. The Tribunal also found the first applicant’s evidence that his friend was arrested, and had given his name to authorities in the hope that it would reduce his sentence, to be unpersuasive.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
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 back in jail if I go back.
At the hearing, the first applicant also submitted that the Tribunal had hardly asked the second applicant any questions.
Ground 1
The first ground of the application has two elements. The first of these is that the Tribunal considered the applicants’ case unfairly. This suggests that the Tribunal failed to conduct a bona fide review of the applicants’ claims. It might also be interpreted to be an allegation of bias. Whether it be an allegation of a want of good faith or of bias, it is not made out. The applicants have not pointed to any aspect of the review, whether in the way it was run, or in the reasoning for the decision which was reached, which would tend to make out allegations of that sort. The Tribunal’s decision record discloses that it held an apparently unexceptional hearing, considered the evidence presented at the hearing and the evidence submitted prior to the review in a considered and appropriate way and reached factual findings which were open to it on that evidence. It is not apparent that the review conducted by the Tribunal was anything other than conscientious.
The second element of the first ground of the application is the allegation that the Tribunal doubted the first applicant’s claim without substantive evidence. As the Minister’s submissions correctly noted, this contention misunderstands the Tribunal’s statutory function. The Act requires the Tribunal to affirm the delegate’s decision unless it is satisfied that an applicant meets the criteria for the grant of a protection visa. The Tribunal does not require evidence adverse to an applicant’s case before it can affirm the delegate’s decision. It is simply a question of the Tribunal not being satisfied, on the material advanced by an applicant, that the criteria for the grant of a protection visa are made out. In this case, the applicants’ claim failed because the evidence which they adduced and the arguments they put to the Tribunal failed to satisfy it that they met the criteria for the grant of the visas they sought. In such circumstances, under the Act the Tribunal had no alternative but to affirm the delegate’s decision.
For these reasons, the first ground pleaded in the application does not disclose any basis upon which the Tribunal’s decision should be set aside.
Ground 2
The second ground set out in the application alleges that the applicants were denied procedural fairness by the Tribunal. For the reasons given in connection with the first ground of the application, I am not of the opinion that the Tribunal’s decision is tainted by bias. As to the other aspect of procedural fairness, the natural justice hearing rule, this is codified in div.4 of part 7 of the Act by s.422B of the Act. The principal provisions in that division are ss.424A and 425. In relation to the former, because the information relied upon by the Tribunal in affirming the delegate’s decision was information which did not fall within the notification obligations provided by the section, the Tribunal had no duty to give the applicants a notice in accordance with that section.
As to s.425, it relevantly provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal invited the applicants to a hearing, which they attended, where the first applicant gave evidence and the second applicant was given the opportunity to say to the Tribunal what she wanted to say. The Tribunal therefore discharged one of the two duties which the section relevantly imposed on it. The Tribunal also put the applicants on notice of the issues which might have been determinative of the review by questioning the first applicant in the presence of the second applicant on matters going to the credibility of aspects of his account and as to the motivation for his Falun Gong activities in Australia. By doing so, the Tribunal discharged the other duty which s.425 relevantly imposed on it.
The applicants have not identified any other provisions of div.4 of part 7 of the Act which the Tribunal may have failed to observe, or may have breached, and it is not apparent that the Tribunal did fail to comply with any relevant obligations it had pursuant to those provisions.
For these reasons, the second ground of the application does not disclose jurisdictional error on the Tribunal’s part.
Ground 3
In the third ground of the application the applicants alleged that the Tribunal did not consider the first applicant’s situation in China and his fear of being imprisoned if he returned. The Tribunal’s summary of the evidence and claims, and its consideration of those matters, have been set out earlier in these reasons. The applicants have not indicated that the Tribunal’s summary of the evidence and arguments before it was inaccurate or failed to refer to information or claims which they advanced. In circumstances where there is no basis to believe that the Tribunal’s decision record fails to record the applicants’ evidence and claims accurately, I do not conclude that it failed to note or consider the claims made by the first applicant, or the evidence he advanced in support of those claims. I am satisfied that the Tribunal did consider the applicants’ claims. As a result the third ground set out in the application does not disclose a basis upon which the Tribunal’s decision should be set aside.
Ground 4
In his oral submissions at the hearing in this proceeding, the first applicant submitted that the Tribunal had hardly asked any questions of the second applicant. However, it is for a party to advance their claims and to put before the Tribunal any evidence they wish it to consider. The Tribunal has no obligation to require or encourage a party to elaborate on their case. It is for an applicant to put their case before the Tribunal in the way they consider appropriate. Consequently, the fact that the Tribunal may not have asked any particular questions of the second applicant does not disclose any error on its part.
But in any event, as the Tribunal’s decision records at para.64, it did ask the second applicant whether she had any comments or statements she wished to make and she responded to the effect that she believed her husband was a genuine Falun Gong practitioner and that she hoped that they would be able to stay in Australia.
The matter raised by the first applicant in his submissions at the hearing does not indicate jurisdictional error on the Tribunal’s part.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 12 April 2011
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