SZOXR v Minister for Immigration

[2011] FMCA 186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 186

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424(A)(1); 424(A)(3); 474; pt.8 div.2

SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZOXR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 35 of 2011

Judgment of: Emmett FM

Hearing date: 22 March 2011

Date of Last Submission: 22 March 2011

Delivered at: Sydney

Delivered on: 22 March 2011

REPRESENTATION

The Applicant appeared in person assisted by a Mandarin interpreter

Solicitors for the Respondent: Ms K. Whittemore (Sparke Helmore Lawyers)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 35 of 2011

SZOXR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 December 2010 and handed down on 13 December 2010.

2. The applicant claims to be a citizen of the People’s Republic of China (China) and of Falun Gong faith (“the Applicant”).

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

1. The Applicant arrived in Australia on 15 May 209 having departed legally from China on a passport issued in her own name and a subclass 572 student visa issued on 30 April 2009 and cancelled on 19 November 2009.

2. On 3 June 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. The Applicant was granted a Bridging visa in association with her valid Protection visa application.

3. On 9 September 2010, the Delegate refused the Applicant’s application for a protection visa.

4. On 15 October 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 10 December 2010 the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 12 January 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by Chinese authorities by reason of her practice of Falun Gong.

2. The Applicant claimed that she began practising Falun Gong in 1997 in an attempt to cure her illness. The Applicant ceased her practice of Falun Gong in 1999 when Falun Gong was suppressed by the Chinese government.

3. In 1994, the Applicant claimed she resumed her practice of Falun Gong after she became ill once again.  The Applicant claimed she practised Falun Gong secretly at home approximately once per day and also read Falun Gong books.

4. The Applicant claimed that she and her husband were arrested on 23 April 2006 after they were discovered practising Falun Gong. She claimed that they were detained separately at Sujiatun District police station.

5. The Applicant claimed that her husband was released after he signed a statement promising to not practice Falun Gong. She claimed that she was further detained, interrogated, tortured and forced into heavy physical labour and subject to brainwashing classes. She claimed to have been transferred to hospital when she became ill again and was subseuquently released back to her home.

6. The Applicant claimed that she and her husband were required to report to the authorities every week and were forced to bribe the police in order to pass requisite checks. The Applicant claimed this became too expensive for them particularly as the Applicant was too ill to work and her husband had lost his job. She claimed that she and her husband bribed officials to obtain passports and visas in order to leave China.

7. The Applicant fears that if she returns to China she will be arrested and that her mother and child will be caused difficulties by the authorities.

The Delegate’s decisions

1. On 12 August 2010, the Applicant was invited to attend an interview with the Delegate, however, she failed to attend the scheduled interview. The Delegate noted that there was no contact from the Applicant to confirm attendance at the interview or to advise that there was any reason as to why she was unable to attend.

2. The Applicant did not attend an interview with the Delegate.

3. The Delegate noted that the Applicant had provided no detailed evidence to substantiate her claim of being a Falun Gong practitioner. The Delegate was not satisfied that the Applicant was of any interest to authorities at the time of her departure from China. The Delegate also noted that the Applicant did not apply for protection in Australia until some 12 months after her arrival in Australia.

4. On 9 September 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 15 October 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 5 November 2010, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 6 December 2010 to give oral evidence and present arguments.

3. On 8 November 2010, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).

4. On 6 December 2010, the Applicant attended the Tribunal hearing and gave evidence.

5. The Applicant provided to the Tribunal a medical report dated 3 September 2010, being the same date as the Delegate’s interview, a prescription and invoice, also dated 3 September 2010, as well as copies of pages from her passport.

6. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:

   “15. In a decision dated 10 December 2010, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa: CB 92-113.

   16. On the basis of comprehensive adverse credibility findings, the Tribunal rejected the applicant’s claim to have had any association with Falun Gong or its practitioners in the PRC. The Tribunal found that the applicant had been ‘vague’ in many aspects of her claims and that there were ‘a number of significant inconsistencies between the oral and written evidence’: CB 108, par 66.

   17. The Tribunal set out in its ‘Findings and Reasons’ the particular concerns it had with the applicant’s claims and evidence. Firstly, the Tribunal was concerned by the applicant’s changed evidence regarding the conversation with her husband that purportedly led to their arrest: CB 108, par 66(a). Secondly, she was unaware that Falun Gong remained banned by the government in 2006: CB 109, par 66(b). Thirdly, she was only able to recall details that were contained in her written statement: CB 109, par 66(c). Fourthly, she was unable to satisfactorily explain why she did not leave the PRC until 2008 when she was issued a passport in 2007: CB 109, par 66(d). Fifthly, the Tribunal was concerned by the fact that the applicant and her husband were able to leave the country on passports in their own names without facing any difficulties: CB 110, par 66(e).  

   18. These concerns led the Tribunal to find that that applicant had not been truthful in her evidence and was not a person of credibility: CB 110, par 67. The Tribunal also found that the applicant’s ‘significant delay’ of 12 months in applying for a Protection visa after arriving in Australia indicated that she did not have a fear of persecution in the PRC: CB 110, par 68-69. The Tribunal also found that the applicant’s claims were undermined by the apparent lack of interest shown by her and her husband in their Protection visa applications, given that they both failed to attend the Departmental interview and the applicant’s husband failed to attend the Tribunal hearing because of work commitments: CB 110-111, pars 70-71. The Tribunal concluded that the applicant had fabricated her claim that her husband was a Falun Gong practitioner: CB 111, par 71.

   19. The Tribunal found further that the applicant’s limited knowledge of Falun Gong demonstrated that such knowledge was recently acquired and did not reflect many years of practice and commitment: CB 111, par 72. The combination of these reasons led the Tribunal to find that ‘the applicant had not been truthful in her evidence’ and that she had ‘fabricated her claims for the purpose of the protection visa application’. Accordingly, the Tribunal rejected the applicant’s claims in their entirety: CB 112, par 73.

   20. The Tribunal accepted that the applicant had practised Falun Gong in Australia but disregarded this conduct pursuant to s.91R(3) of the Act as it was not satisfied that she had engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee: CB 112, par 74. Accordingly, the Tribunal found that the applicant would not engage in any Falun Gong activities, or be perceived as being a Falun Gong practitioner, if she returned to the PRC in the reasonably foreseeable future: CB 112, par 75. For these reasons, the Tribunal also found that the applicant’s husband was not a person to whom Australia owed protection obligations: CB 112, par 76. 

   21. The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function. In particular, the Tribunal’s conclusion that the applicant was not credible was a finding of fact for the Tribunal par excellence.  This finding was open to the Tribunal on the evidence before it and the Court cannot review the merits of the Tribunal’s decision.  ”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 9 February 2011, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that she wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

4. At the commencement of the hearing, the Applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application.

5. The Applicant confirmed that she relied on the grounds contained in the application filed on 12 January 2011 as follows:

   “1. The Tribunal failed to carry out its statutory duty.

   2. The Tribunal failed to provide particulars of the information that was part of the reason for affirming the decision.

   3. The Tribunal failed to explain why the information was relevant and provide the applicant with an opportunity to comment.”

6. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

7. In support of her application to this Court the Applicant first complained that she had not been provided with an opportunity to comment on the thoughts the Tribunal had in relation to her case.

8. Such a complaint does not establish jurisdictional error on the part of the Tribunal. It is well established that the Tribunal’s subjective appraisals, thought processes or determinations do not impose any obligation on the Tribunal to put those matters to an applicant (SZBYR & Anor  v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [18].

9. In any event, a fair reading of the Tribunal’s decision record makes clear that the Tribunal discussed the Applicant’s claims with her in some detail and put to her matters of concerns that it had arising out of her evidence.

10. Further, the Tribunal gave the Applicant information that may be the reason or part of the reason for affirming the decision under review in a letter dated 8 November 2010. The Tribunal’s letter informed the Applicant that she entered Australia on 15 May 2009 on a student visa issued on 30 April 2009 which was cancelled on 19 November 2009. Yet the Applicant did not apply for a protection visa until 25 June 2010. The letter informed the Applicant that the information was relevant because it may cause the Tribunal to find that she did not have a genuine fear of persecution in China, and was therefore not a person of credibility. The Applicant was invited to comment on the information.

11. Ultimately, part of the reason that the Tribunal affirmed the decision under review, was because it found that if the Applicant had any interest in seeking protection in Australia, she would have made enquiries about possibilities of remaining in Australia as soon as she entered the country. In making that finding, the Tribunal had particular regard to the Applicant’s delay of over 12 months in circumstances where she held a student visa, yet was not attending the course. The Tribunal found such conduct by the Applicant to indicate that the Applicant or her husband had no interest in seeking protection and no fear of persecution.

12. The Tribunal found the Applicant’s evidence to be vague and inconsistent in many respects. The Tribunal identified particular concerns it had about her evidence and noted her responses.  Those concerns included: why it took the Applicant more than 2 years from her release from detention to decide to leave China when she had been issued with a passport in 2007; why she was able to exit China in a passport in her own name if she was required to report to authorities as alleged; why she had not undertaken study in accordance with her student visa; why she delayed for 12 months in applying for a protection visa; why her husband made no separate claim to be a refugee in light of her claims that he had also been arrested for Falun Gong practice in China; how she was able to provide evidence of significant funds to support herself in Australian on her student visa where she alleged that neither she nor her husband were employed in China; and, her lack of knowledge and familiarity with Falun Gong practice, principles and verses.

13. Ultimately, the Tribunal found that while none of the concerns on their own were determinative, the combination of the unsatisfied concerns caused the Tribunal to find that the Applicant had not been truthful in her evidence. The Tribunal found that she had fabricated her claims for the purposes of the protection visa application. The Tribunal comprehensively rejected her claims that either she or her husband had ever practised Falun Gong in China or been persecuted or detained in China for that reason. The Tribunal further found that the Applicant and her husband had no interest in Falun Gong and no commitment to Falun Gong in China, would not engage in any Falun Gong related activities in China and would not be perceived as Falun Gong practitioners.

14. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).

15. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

1. Following the submissions by the solicitor for the First Respondent, Ms Whittemore, the Applicant was invited to say anything further in support of her application. On this occasion, she said that on the day of the Tribunal hearing, the Tribunal said that she had not provided a medical certificate in respect of her illness but it did not tell her that such a document was necessary for a protection visa application. Such an assertion is not consistent with the Tribunal’s decision record.

2. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 16 December 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

3. The Tribunal’s decision record refers specifically to a medical certificate given by the Applicant to the Tribunal. However, the issue for the Tribunal was that the medical certificate, which was dated the same day as her scheduled interview with the Delegate, was not provided to the Delegate. Neither was any request made of the Delegate to reschedule the interview due to her illness. The Tribunal noted that the Applicant stated that she did not know she could ask to reschedule the interview. However, the Tribunal did not accept that explanation because the Applicant had an experienced migration agent assisting her with the application. Further, the Tribunal noted that the Delegate’s decision was not made for about 6 days after the scheduled interview and at no time in that period did the Applicant inform the Delegate that she could not attend the interview due to medical reasons. Such conduct led the Tribunal to find that the Applicant and her husband had little interest in the processing of their application and did not have a genuine fear of persecution. The Tribunal found that its other expressed concerns were exacerbated by the apparent lack of interest in their applications by the Applicant and her husband.

4. As stated above, the Tribunal’s decision was open to it on the evidence and material before it and for the reasons it gave.

5. The Applicant further complained to this Court that the Tribunal had said that her husband did not attend the hearing and that such conduct could be seen as her husband not treating their applications seriously. The husband had not attended the Delegate’s interview or the Tribunal hearing. The Applicant said to this Court that if her husband had come to the Tribunal hearing, he would lose his job.

6. However, the Tribunal noted that no evidence of the husband’s work commitments had been presented and no request had been made to postpone the Tribunal hearing. Indeed, the Applicant’s representative had informed the Tribunal on 17 November 2010 that the husband would not attend the hearing. The Tribunal noted that no evidence was presented that the husband had made any attempt to change his work commitments to be able to present his case to the Tribunal. The Tribunal found that the failure of the husband to present his claims at any time within the past 6 months, his failure to attend the interview with the Delegate and his failure to attend the Tribunal hearing indicated that he had no interest in the application before the Tribunal. The Tribunal found that such conduct was contrary to the Applicant’s claims that she and her husband were Falun Gong practitioners who had been persecuted in the past and feared persecution in the future.

7. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. 

8. The Applicant’s complaints in relation to this issue and her medical certificate are more in the nature of disagreements with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

9. The Applicant also complained that the reason that her husband did not attend the Tribunal hearing was because he was not asked to go the Tribunal hearing. However, such complaint is not made out in light of the bundle of documents identified as “Court Book”, filed on 10 February 2011 and marked Exhibit 1R.

10. The application for review by the Tribunal was made in the name of both the Applicant and her husband. The application for review nominated their adviser as an authorised recipient In accordance with the statutory regime, on 5 November 2010, the Tribunal wrote to the Applicant’s migration adviser annexing a letter clearly addressed to both the Applicant and her husband inviting them both to come to a hearing on 6 December 2010. Further, the Tribunal’s letter to the migration adviser made clear that the invitation was to both the Applicant and her husband.

11. Ground 1 of the Applicant’s application to this Court for judicial review of the Tribunal’s decision makes the bare assertion that the Tribunal failed to carry out its statutory duty. The assertion was not supported by particulars, evidence or relevant submissions. There is no evidence before this Court to suggest that their review was conducted other than in accordance with Part 7 of the Act. Accordingly, ground 1 is rejected.

12. Grounds 2 and 3 appear to assert that the Tribunal failed comply with s.424A(1) of the Act in that it did not give the Applicant information that was part of the reason for affirming the decision under review and/or give her an opportunity to comment on such information. Those assertions in grounds 2 and 3 are unsupported by particulars, evidence or relevant submissions.

13. As stated above, the Tribunal sent the Applicant a letter in accordance with s.424A(1) of the Act in respect of certain information that it considered would be the reason or part of the reason for affirming the decision under review, and invited the Applicant to comment.

14. Largely, the Tribunal’s reasons for affirming the decision under review were based on its adverse credibility findings in respect of the Applicant’s claims in support of her protection visa application. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) and s.424A(3)(ba) of the Act, in that the information was given by the Applicant for the purposes of her review or was information given by the Applicant during the process that led to the decision under review, other than such information that was provided orally by the Applicant to the Department.

15. The only other information to which the Tribunal had regard was information that was not specifically about the Applicant and was about a class of persons of which the Applicant claimed to be a member. That information was reflected in independent country information identified by the Tribunal in detail. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.

16. Accordingly, grounds 2 and 3 are not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence both orally and in writing and noted the Applicant’s responses. The Tribunal also put to the Applicant independent information before it about Falun Gong practice and invited the Applicant to comment upon it.  The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  22 March 2011