SZQBM v Minister for Immigration and Citizenship
[2012] FCA 551
•30 May 2012
FEDERAL COURT OF AUSTRALIA
SZQBM v Minister for Immigration and Citizenship [2012] FCA 551
Citation: SZQBM v Minister for Immigration and Citizenship [2012] FCA 551 Appeal from: SZQBM v Minister for Immigration & Anor [2011] FMCA 807 Parties: SZQBM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1993 of 2011 Judges: BUCHANAN J Date of judgment: 30 May 2012 Legislation: Migration Act 1958 (Cth) Date of hearing: 16 May 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Appellant: The appellant appeared in person with the aid of an interpreter. Counsel for the First Respondent: Mr T. Reilly Counsel for the Second Respondent: The second respondent submitted save as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1993 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQBM
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
30 MAY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1993 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQBM
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
30 MAY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This appeal from a decision of the Federal Magistrates Court of Australia (“the FMCA”) relies, in essence, on grounds which were considered and rejected by that Court. It therefore represents a form of renewed challenge to the decision of the Refugee Review Tribunal (“the RRT”) which affirmed a decision of a delegate of the first respondent refusing the appellant’s application for a protection visa.
Beyond repeating the grounds which were relied upon before the FMCA, and asserting that the FMCA erred in rejecting them, the appellant’s grounds of appeal to this Court do not identify any respect in which the analysis of the FMCA was incorrect. Contrary to directions made for the preparation of the appeal, no written submissions were filed which shed any further light on the appellant’s position.
When the hearing of the appeal commenced, the appellant sought an adjournment to pursue further enquiries about the possibility of obtaining legal assistance. The application for an adjournment was opposed. The hearing had already been adjourned once on medical grounds. On 15 April 2012, Legal Aid NSW wrote to the appellant indicating that her application for legal aid had been refused. For reasons which were recorded in the transcript I refused a further adjournment and the hearing of the appeal proceeded. In brief, my reasons for refusing an adjournment were that first, there was nothing before me to indicate that the appellant would be successful in obtaining legal assistance even if an adjournment were granted; and secondly, it did not appear that the appeal would or could proceed by reference to matters which had not already been canvassed before the FMCA, where the appellant had the benefit of legal representation. There was no reason, therefore, to think that the arguments upon which the appellant might rely had not already been fully exposed.
The appellant is a citizen of the People’s Republic of China. She came to Australia on 11 August 2009 on a student visa. Although her student visa expired on 19 May 2010, the appellant nevertheless remained (unlawfully) in Australia. The appellant made a valid application for a protection visa on 31 May 2010 and was granted a bridging visa. She was granted a further bridging visa with permission to work on 12 July 2010. On 27 August 2010, the appellant’s application for a protection visa was refused by a delegate of the Minister.
The appellant claimed to fear persecution in China as she is a practitioner of Falun Gong. The delegate found that since around 1999 Falun Gong has been “harshly repressed” in China. The delegate provided a detailed explanation of this and other factors which he took into account in evaluating the appellant’s claims. In the end the delegate was not persuaded that the appellant’s claims were genuine. Although the discussion of these matters by the delegate is not relevant to the assessment later made by the RRT, it is germane in the sense that the appellant was thereby put on notice of the areas in which her account to the delegate had been unpersuasive. She had a practical opportunity to address those matters before the RRT.
On 24 September 2010, the appellant applied to the RRT for review of the delegate’s decision. The RRT was obliged to make its own assessment of the appellant’s claims, but in that assessment it was entitled to take into account the responses the appellant had provided to the delegate about matters relating to her claim to be a refugee with a genuine fear of persecution in China.
The RRT conducted an oral hearing on 17 January 2011 after two postponements – one which was requested by the appellant for health reasons and one which was due to difficulties for the RRT itself. Like the delegate, the RRT accepted that Falun Gong practitioners are treated harshly in China. However the RRT’s assessment was that the appellant’s claims suffered from inconsistencies, internal conflicts and logical difficulties. The RRT came to the view that the appellant was not truthful in relation to the claims she made. Those reservations were shared with the appellant during the oral hearing. It must be emphasised that assessment of the merits of the appellant’s claims is not a matter with which this Court may deal. Nor is it a matter with which the FMCA may deal. Proceedings for judicial review of the decisions of the RRT in the FMCA, and on appeal in this Court, are confined to the question of whether jurisdictional error has been identified. The RRT found that the appellant was “not a genuine Falun Gong practitioner” and that “she will not engage in Falun Gong practice in China”. It found that:
… since arriving in Australia, the applicant has developed knowledge of Falun Gong principles and practices and that she has had some limited involvement in practice sessions and other activities. However, the Tribunal does not accept that these are evidence that she has a genuine commitment to Falun Gong. The Tribunal has found that the applicant is not a person of credibility. The applicant has made no claim to have been a Falun Gong practitioner in China, and the Tribunal is not satisfied that the applicant has engaged in Falun Gong related activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee. The Tribunal therefore disregards the applicant’s Falun Gong practice in Australia in accordance with s.91R(3) of the Act.
Section 91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”) obliged the RRT, as the RRT correctly recorded, to disregard any conduct engaged in by the appellant in Australia unless the RRT was satisfied that the appellant engaged in the conduct otherwise than for the purpose of strengthening her claim for a protection visa. It is clear from the decision of the RRT that the RRT was not satisfied about that matter. Accordingly, the RRT was obliged to disregard the appellant’s claimed involvement with Falun Gong in Australia.
The RRT’s decision was made on 25 February 2011 and conveyed to the appellant, through her migration agent, on 28 February 2011. On 31 May 2011 the appellant, with legal assistance, commenced proceedings in the FMCA seeking judicial review of the RRT’s decision. The grounds for that application were as follows:
Ground one.
1.The Tribunal based its finding that the Applicant’s practice of Falun Gong in Australia had to be disregarded in assessing her claims pursuant to section 91R(3) of the Migration Act 1958 (Cth) on a test of credibility which had no basis in the evidence before the Tribunal.
…
Ground two.
2.In the alternative to ground one, the Tribunal’s reasoning particularised in ground one was illogical, irrational, or unreasonable, because it applied an illogical, irrational, or unreasonable test of the genuineness of the Applicant’s commitment to Falun Gong.
Ground three.
3.In the alternative to grounds one and two, the Tribunal asked the wrong question when it asked whether or not the Applicant “held back”, or expressed her opinions without prompting, in determining whether or not the Applicant’s practice of Falun Gong in Australia should be excluded pursuant to section 91R(3) of the Act.
A hearing took place before the FMCA on 26 August 2011. The appellant was represented by counsel. In a judgment delivered on 21 October 2011 the FMCA dismissed the application for judicial review (SZQBM v Minister for Immigration & Anor [2011] FMCA 807). The argument advanced on behalf of the appellant before the FMCA criticised the manner in which the RRT used a statement made by Dr Benjamin Penny in 2006. In a part of the decision recording “Information from Other Sources” (i.e. information from sources other than the appellant), the RRT recorded Dr Penny’s statement that:
What I would do to test genuineness, however, is to talk to applicants about why they do Falun Gong, what their experience of it is, how it has helped them and other people they know, etc. I realize the interview situation can be a little artificial but whenever I’ve talked to practitioners and displayed sincerity in wanting answers, they’ve never held back. You might also ask them how they apply the moral tenets of truth, compassion and forbearance (zhen, shan, ren) in their lives. (Penny, Dr. B, ‘Falun Gong: An Academic’s Perspective’, transcript of seminar presented to the RRT on 26 July 2006).
The RRT appeared to apply this, and other information, later in its assessment:
159.Country information as quoted above indicates that three factors are useful indicators of whether a person is a genuine Falun Gong practitioner: their ability to perform the five exercises, their reading of Zhuan Falun and their ability to speak about why they do Falun Gong, what their experience of it is, and how it has helped them and other people they know (a subject on which genuine practitioners never hold back). The Tribunal asked the applicant on several occasions during the hearing to describe the importance of Falun Gong in her life. The applicant’s first response was to say that Falun Gong had made her fitter and healthier and spiritually more tolerant and calmer. The Tribunal put to her that she was being medically treated for high blood pressure, stress and insomnia which seemed to belie the claimed benefits. The applicant said that within the circumstances of her health, she had gained some benefits. As put to the applicant at hearing, while she was able to talk about what Falun Gong meant to her, the Tribunal considered that she required some prompting to do so and did not gain the impression from her delivery that she had a deeply felt personal attachment to Falun Gong even though she was describing it as her faith. The applicant did not respond specifically to this observation except to say that her migration agent had advised her that her evidence of Falun Gong practice in Australia was insufficient.
At the hearing of the present appeal the appellant made a complaint that the RRT had simply judged “from my eyes” that she lacked “enthusiasm” for Falun Gong. The appellant confirmed that this complaint referred to the observations of the RRT in paragraph 159 of its decision and a similar statement earlier in the decision.
An assessment by the RRT of the appellant’s claim to be a genuine Falun Gong practitioner, who would pursue that practice upon any return to China, was inevitable. The RRT was not obliged to accept uncritically everything the appellant said in that regard and was, on the contrary, required by s 91R(3) of the Migration Act to disregard the appellant’s conduct in Australia unless affirmatively satisfied that it did not arise from attempts by the appellant to strengthen her claim to be a refugee. The assessment of those matters was a matter committed by the Migration Act to the RRT. Provided the RRT did not misunderstand the nature of the task committed to it or fail to perform it within its statutory mandate, no jurisdictional error would be committed, even if another person might arrive at a different assessment. Proceedings for judicial review do not provide an opportunity for a reassessment of the merits of claims for protection visas.
I can see nothing in the decision of the RRT to support a claim or suggestion that it misunderstood the nature of the task it was required to perform, or any indication that it performed its functions by reference to any impermissible material or impressions. It was necessary to test, and form a view about, the claimed embrace of Falun Gong by the appellant. I do not accept that the RRT did so by any impermissible reliance on purely subjective factors, which is what I understood the appellant to suggest.
More specifically, so far as the present appeal is concerned, I can see no error in the way in which these matters were assessed by the FMCA, both by reference to the findings of fact made by the RRT and its consideration of the assessment made by the RRT of the strength of the appellant’s claimed beliefs.
The FMCA observed at [43] – [46]:
43.It is difficult in the circumstances of this case not to view the applicant’s argument as an artificial construct designed to achieve the outcome of revealing jurisdictional error. It is the case that a failure to apply the correct test, or the misapplication of the correct test, or the misapplication of a test, can lead to jurisdictional error. However an assessment with which the applicant disagrees is merely a challenge to the merits. That is a challenge to the fact finding made by the Tribunal. This does not lead to jurisdictional error being revealed, particularly in circumstances where this Court cannot conduct merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481).
44.A plain, and certainly a fair, reading of the material before the Court reveals that the Tribunal did not purport, or even mistakenly act, to apply any such “test” in the way that the applicant now contends.
45.The relevant facts as found by the Tribunal, and not disputed by the applicant now, are that the applicant was not a Falun Gong practitioner, genuine or otherwise, in China. The relevant events in China, as put by the applicant herself, were that she feared harm because she had harboured a Falun Gong practitioner.
46.It is the second basis of her claim to fear persecutory harm which is of concern to the applicant’s attack now. That is, that she became a “genuine Falun Gong” practitioner since she came to Australia, and feared persecutory harm for this reason if she were to return to China.
The FMCA said later at [70]-[72]:
70.In the Tribunal’s view, the applicant had not displayed a satisfactory ability to speak fulsomely and openly about her Falun Gong faith. To the contrary, the Tribunal found she required prompting. It ultimately formed the view from her “delivery” that she did not have a deeply felt personal attachment to Falun Gong. Implicit in this is that, given that she was claiming to describe her faith, the Tribunal expected her to have done so.
71.In my view, this was an exercise within jurisdiction. The Tribunal applied relevant information to the applicant’s circumstances and evaluated her evidence and the way that she gave that evidence. This was done as against the expert advice it had received as to how a genuine Falun Gong practitioner would deal with the presentation of their faith, even in the stressful, artificial environment of an “interview”.
72.When viewed in this way, the Tribunal’s assessment that the applicant was not a genuine Falun Gong practitioner, based as it was on the applicant’s own evidence and relevant information before it, was reasonably open to make on what was before it, and for which it gave reasons.
The FMCA did not find that any of the three grounds relied upon by the appellant were made out. Nothing has been put on this appeal which leads to any different conclusion. The assessment which was made by the RRT was a matter committed to it under the Migration Act. The appellant has failed to show that any jurisdictional error was committed by the RRT. Nor does it appear to me from my own study of the material that any jurisdictional error was committed by the RRT.
The appeal from the judgment of the FMCA must be dismissed. It is appropriate to dismiss the appeal with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 30 May 2012
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