SZQIJ v Minister for Immigration and Citizenship
[2012] FMCA 63
•8 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQIJ & ANOR v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR | [2012] FMCA 63 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error - whether or not the Refugee Review Tribunal’s adverse credibility findings were open to it on the evidence and material before it whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) in giving the applicants information that may be the reason or part of the reason for affirming the decision under review - whether the Refugee Review Tribunal had regard to the current situation of Falun Gong in China. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 |
| 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; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29; 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; |
| First Applicant: | SZQIJ |
| Second Applicant: | SZQIK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1200 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 February 2012 |
| Date of Last Submission: | 6 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2012 |
REPRESENTATION
| The applicants appeared in person assisted by a Mandarin interpreter |
| Solicitors for the Respondent: | Ms Jane Reardon (Minter Ellison) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1200 of 2011
| SZQIJ |
First Applicant
| SZQIK |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 6 May 2011 and handed down on that day.
The second applicant is the husband of the first applicant. The applicants claim to be citizens of the People’s Republic of China and Falun Gong practitioners. Both applicants claimed to be refugees and to have been persecuted in China because they were Falun Gong practitioners.
The issue before this Court is whether or not the Tribunal’s adverse credibility findings were open to it on the evidence and material before it, whether the Tribunal complied with s.424A of the Act in giving the applicants information that may be the reason or part of the reason for affirming the decision under review and whether the Tribunal had regard to the current situation of Falun Gong in China.
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 applicants’ 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
The first applicant arrived in Australia on 23 April 2009 having departed legally from China on a passport issued in her own name and a student visa issued on 2 April 2009.
On 3 June 2010, the first applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 1 September 2010, a delegate refused the first applicant’s application for a protection visa.
On 5 October 2010, the first applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 6 May 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 June 2011, the first applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative Framework
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.
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”).
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.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The applicants’ applications for protection visas
The first applicant provided a statement in support of her protection visa application.
The first applicant claimed that she was first introduced to Falun Gong in 1998 but stopped the practise shortly thereafter when she discovered the practice of Falun Gong was illegal. She claimed that she recommenced practise in 2008 following a work injury and introduced her husband to Falun Gong at that time. The first named applicant said both named applicants practised Falun Gong at their home which was eventually discovered by police who arrested and detained them.
The first applicant claimed that she was released following the signing of a declaration and that the second named applicant was released after the first applicant paid a fee to police. Both applicants were required to report to the police station every two weeks following their release.
On 23 April 2009 the applicants came to Australia on student visas.
On 9 June 2010 the first applicant lodged a protection visa application and, at that time, the second applicant lodged an application as a family member of the first applicant.
The delegate’s decision
The first applicant was invited to an interview with a delegate of the Minister which she failed to attend. No reason was provided as to why she was unable to attend.
On 1 September 2010, the delegate refused the first applicant’s application for a protection visa on the basis that the first applicant was not a person to whom Australia owed protection obligations under the Convention.
The Tribunal’s review and decision
On 5 October 2010, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided no further documents in support of their review application.
On 29 October 2010, the Tribunal wrote to the applicants informing them 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 applicants to attend a hearing on 25 November 2010 to give oral evidence and present arguments.
On 25 November 2010, the applicants attended the Tribunal hearing and gave evidence. The Tribunal noted that the second applicant had refugee claims of his own arising from the first applicant’s statement in support of her protection visa application. For that reason, the Tribunal proceeded to hear evidence from each of the applicants separately. In relation to the second applicant, the Tribunal put to him that the first applicant’s statement clearly indicated that he was also a Falun Gong practitioner who had been detained in China and therefore the Tribunal considered his own claims for protection.
The Tribunal explored with each of the applicants the substance of their claims and put to each of them concerns the Tribunal had about aspects of their claims and evidence that caused the Tribunal’s concern.
The Tribunal noted that it told the applicants that both had given evidence that was both internally inconsistent and inconsistent with the evidence of each other.
On 9 December 2010, the Tribunal gave the applicants information which the Tribunal considered may be the reason or part of the reason for affirming the decision under review. The information was given to the applicants by the Tribunal pursuant to s.424A of the Act. The information related to aspects of the evidence of the applicants which was not consistent. The Tribunal’s letter broke this information into four categories being the circumstances of detention of the applicants in China, how the applicants obtained their passports in China, matters relating to the first applicant’s employment in China and how her evidence was inconsistent with information in her student visa application. The letter also referred to inconsistent evidence in their claims of Falun Gong practice in Australia. In particular, the Tribunal noted that both had said at first that they did not practise in Australia. The first applicant then said that they both had practised in Australia, whereas the second applicant said that he had not. The letter purported to explain to the applicants the relevance of the information.
On 4 January 2011, the first applicant responded to the Tribunal’s letter and the Tribunal understood it to be a response from the first applicant only.
The Tribunal identified with specificity the country information to which it had regard. That information related to the background to Falun Gong, when and why Falun Gong started to attract government attention, an overview of the types of treatment of Falun Gong practitioners since 1999, evidence of differential treatment of leaders and followers and DFAT advice on the issuing of passports to Falun Gong practitioners and the treatment in China of returnees.
Ultimately, the Tribunal did not accept that either of the applicants had ever been a Falun Gong practitioners in China or that either would be perceived to be a Falun Gong practitioner or associated with Falun Gong practitioners by authorities in China. The Tribunal found the applicants to be untruthful witnesses who gave false evidence from time to time. The Tribunal found that, based on all the evidence before it, the claims of each of the applicants were not credible.
Further, the Tribunal was not satisfied that the applicants have practised Falun Gong in Australia at all or have been involved in Falun Gong activities in Australia.
The Tribunal concluded that neither of the applicants had a well founded fear of persecution for a Convention related reason and, accordingly, affirmed the decision under review.
The Proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 12 July 2011, the first applicant attended a directions hearing before me on behalf of both applicants. I explained to the first 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 that goes to the jurisdiction of the Tribunal. I also explained to the first 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 first applicant confirmed that she wished to continue with the application. The first 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.
At the directions hearing, the first applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicants have participated in the Court’s Legal Advice Scheme and received free legal advice. The first applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing, the applicants confirmed that they had not filed any amended application, evidence or submissions in support of their application and that they had no further documents to present to the Court this morning.
The applicants confirmed that they relied on the grounds contained in the application filed on 10 June 2011 as follows:
“1. The Tribunal based it’s [sic] findings on the information contained in the applicant’s application for a p [sic].
2. The Tribunal failed to explain why the information is relevant and made jurisdiction [sic] error.
3. The Tribunal failed to take into consideration the current situation of Falun Gong in China.”
Each of the grounds was interpreted for the assistance of the applicants and each of the applicants was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1 – “The Tribunal based its findings on the information contained in the applicant’s application for a p [sic]”
Ground 1 makes no sense on its own. Neither applicant was able to explain what was meant by ground 1. By itself it does not establish any error capable of review by this Court and must therefore be rejected.
The first named applicant said that the ground related to inconsistencies in the applicants claims and that the Tribunal had not believed their claims or looked into their matter. The second applicant made no further submission.
Otherwise, ground 1 was not supported by particulars, evidence, written submission or relevant oral submissions.
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).
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicants provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 12 July 2011, the applicants were given an opportunity to file a transcript of the Tribunal hearing. The applicants were also directed to give notice if they wished to rely on recordings of the hearing. However, no step was taken by the applicants 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 applicants and exchanges it had with the applicants at the Tribunal hearing.
A fair reading of the Tribunal decision record makes clear that the Tribunal accurately summarised the written claims of the first applicant. The decision record refers comprehensively to the evidence given by each of the applicants at the hearing and the matters of concern about the evidence put to each of the applicants by the Tribunal and their responses.
A fair reading of the Tribunal decision record makes clear the concerns the Tribunal had about the evidence of each of the applicants and why those concerns led the Tribunal to make adverse credibility findings in respect of each the applicants. In particular, the Tribunal stated as follows:
“The applicants did not impress the Tribunal as reliable, credible and truthful witnesses. In reaching this view the Tribunal has had regard to inconsistencies and changes in the evidence presented in support of their claims to be refugees, the lack of credible detail the applicants provided regarding significant aspects of their claims, their failure to provide to the Tribunal plausible explanations for significant inconsistencies and changes in evidence and other concerns detailed below.”
The Tribunal identified aspects that caused it particular concern relating to the differing evidence of the applicants in relation to their claimed apprehension and detention in China; the inconsistent evidence of the first applicant with information in her student visa application about her employment in China; the differing evidence of the applicants in relation to their departure arrangements; and, the differing evidence of the applicants in relation to alleged Falun Gong practice in Australia.
As stated above, the Tribunal gave information to the applicants that it stated may be the reason or part of the reason for affirming the decision under review in accordance with s.424A of the Act. The Tribunal’s letter gave the applicants clear particulars of the information, ensured as far as was reasonably practicable that they understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review. The letter invited the applicants to comment on the information. The Tribunal had regard to the response to that letter provided by the first applicant but was not persuaded by it.
The first respondent submitted that none of the information was information that enlivened s.424A of the Act because it was essentially the Tribunal’s assessment and appraisal of the evidence before it and was not information that by itself was a rejection, denial or undermining of the applicants’ claims. However, to the extent that the Tribunal gave information to the applicants that it believed may be the reason or part of the reason for affirming the decision under review, it complied with the requirements of s. 424A of the Act for the reasons referred to above. There was no error in the Tribunal giving that information to the applicants even if it was not information that enlivened the obligations under s424 of the Act.
The decision record referred in detail to the s.424A letter and the first applicant’s written response. As stated above, the Tribunal’s decision also identified country information to which it had regard.
The Tribunal’s findings were open to it on the materials and evidence 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).
Accordingly, ground 1 is rejected.
Ground 2 – “The Tribunal failed to explain why the information is relevant and made jurisdiction [sic] error”
I asked each of the applicants what was the information which they say the Tribunal failed to explain was relevant. The first applicant answered that they were not believed and made no further submission in support of ground 2. The second applicant made no submission in support of ground 2.
Ground 2 was not supported by particulars, evidence, written submission or relevant oral submissions.
As stated above, the Tribunal’s s.424A letter, dated 9 December 2010, gave clear particulars to the applicants of the information that may be the reason or part of the reason for affirming the decision under review. That information was the evidence of each of the applicants where the applicants gave differing accounts of the same events. The information also included evidence of the information provided by the first applicant in her student visa application and which the Tribunal found to be inconsistent with her oral evidence.
In relation to the information relating to the applicants alleged detention in June 2008, following the particulars, the Tribunal explained the relevance as follows:
“This information is relevant to the review because providing different or inconsistent or implausible accounts of these events may lead the Tribunal to infer that the events did not occur, and that you have fabricated your claims in relation to these events.”
In relation to the information relating to the applicants arrangements to leave China, following the particulars, the Tribunal explained the relevance as follows:
“This information is relevant to the review because it may lead the Tribunal to infer that you have not been truthful about the circumstances in which you arranged your departure from China and may lead the Tribunal to doubt your claims about the events leading up to and the reasons why you left China.”
In relation to the information relating to the fist applicants employment in China, following the particulars, the Tribunal explained the relevance as follows:
“This information is relevant to the review because the Tribunal may infer that (the first applicant) has not been honest about her employment history and it may lead the Tribunal to doubt her other claims.”
In relation to the information relating to the applicants claims to be Falun Gong practitioners in Australia, following the particulars, the Tribunal explained the relevance as follows:
“This is relevant to the review because it may lead the Tribunal to conclude that you have not practised Falun Gong in Australia and that you are not permitted practitioners of Falun Gong and that you will not practise Falun Gong or wish to practise Falun Gong if you return to China.”
In addition to the written explanations about the relevance of the information given to the applicants by the Tribunal in its s.424A letter, the Tribunal put aspects of this information to the applicants at the hearing and noted their responses.
In the circumstances, I am not satisfied that the Tribunal failed to explain why the information which it found to be adverse to the applicants was relevant to the review.
Accordingly, ground 2 is not made out.
Ground 3 – “The Tribunal failed to take into consideration the current situation of Falun Gong in China”
In support of ground 3, the first applicant again repeated her complaint that the applicants were arrested and persecuted in China but the Tribunal did not believe their claims. The second applicant made no submission.
Ground 3 was not supported by particulars, evidence, written submission or relevant oral submissions.
As stated above, the Tribunal identified with particularity the country information to which it had regard. The applicant did not identify any other country information which the Tribunal failed to consider.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In the circumstances, I am not satisfied that the Tribunal failed to take into account consideration of the current situation of Falun Gong in China.
Accordingly, ground 3 is not successful.
At the conclusion of the hearing, I invited each of the applicants to say anything further they wished in response to anything they had heard from the solicitor for the first respondent or anything further in support of their application generally. The second applicant made a complaint for the first time that the inconsistencies in their evidence had been because they were nervous at the Tribunal hearing. I said to the applicants that there was no evidence before this Court of any evidence of any complaint made at any time by either of them or their Migration Agent to the Tribunal to this effect. They confirmed that no such complaint had been made to the Tribunal. I explained that in those circumstances there could be no error on the part of the Tribunal going to its jurisdiction because it failed to have regard to any nervousness on their part and about which they made no complaint.
Otherwise, the applicants’ oral complaints made to the Court appear to be more in the nature of a disagreement 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).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants and explored those claims with the applicants at a hearing. The Tribunal put to the applicants matters of concern it had about their evidence both at the hearing and in writing and noted their responses. 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.
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.
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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 8 February 2012
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