SZQLH v Minister for Immigration
[2011] FMCA 950
•1 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 950 |
| MIGRATION – Protection visa application – Refugee Review Tribunal Decision – application for judicial review – Chinese citizen – husband a Falun Gong practitioner. |
| Migration Act 1958 (Cth), ss.36(2), 65(1), 476 |
| Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Plaintiff S157/2002 v Commonwealth Bank of Australia (2003) 211 CLR 476; [2003] HCA 2 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 SZGNJ v Minister for Immigration [2006] FMCA 91 SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 WZAOB v Minister for Immigration and Citizenship [2011] FCA 162 |
| Applicant: | SZQLH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1517 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 1 December 2011 |
| Date of Last Submission: | 1 December 2011 |
| Delivered at: | Perth |
| Delivered on: | 1 December 2011 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 1517 of 2011
| SZQLH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Issue
The issue in these proceedings is whether the Refugee Review Tribunal[1] committed jurisdictional error in deciding to affirm the Minister’s delegate’s[2] decision to refuse the applicant a protection (class XA) visa.[3]
[1] “Tribunal”.
[2] “Delegate”.
[3] “Protection Visa”.
Background facts
The applicant was born in the People’s Republic of China[4] on 20 September 1972 and is 38 years old.[5] She arrived in Australia on a Chinese passport as the holder of a tourist visa on 15 May 2010.[6]
[4] “China”.
[5] CB 19 and 53.
[6] CB 101.
On 26 July 2010 the applicant applied for a Protection Visa.[7] The applicant claims that she fears persecution on the basis that because her former husband is a Falun Gong practitioner, the Chinese authorities will also consider her to be a Falun Gong practitioner, and because she has been persecuted by the Chinese Government on the basis that she “harboured a Falun Gong believer”.[8]
[7] CB 5-36
[8] CB 33.
The Delegate refused the application on 25 February 2011.[9] On
22 March 2011 the applicant sought review of the Delegate’s Decision by the Tribunal.[10] The applicant attended a hearing before the Tribunal on 8 June 2011.[11]
[9] Delegate’s Decision, CB 60-78.
[10] CB 79-82.
[11] CB 124 and 133.
Tribunal Decision
On 24 June 2011 the Tribunal affirmed the Delegate’s Decision to refuse to grant a Protection Visa to the applicant.[12]
[12] CB 129-148 (“Tribunal Decision”).
The Tribunal Decision:
a)details the relevant law as to the required standard of satisfaction of the decision maker with respect to a visa, including satisfaction as to whether Australia has protection obligations towards the applicant under the Refugee’s Convention;[13]
b)sets out the definition of “refugee” as defined in the Refugee’s Convention, and the basis on which a well-founded fear of persecution might be established;[14]
c)sets out in detail the claims made by and evidence of the applicant:
i)in her primary application;[15]
ii)upon merits review before the Tribunal;[16] and
d)reviews and sets out relevant country information.[17]
[13] CB 130, citing Migration Act1958 (Cth), ss.36(2) and 65(1) (“Migration Act”)
[14] CB 130-132 and 142-143.
[15] CB 132-133.
[16] CB 133-139.
[17] CB 139-142.
The Tribunal Decision accepted that:
a)in China people associated with Falun Gong practitioners may be imputed with an adverse political opinion;[18]
b)the applicant’s former husband was a Falun Gong practitioner and had allowed a fellow practitioner to reside in their house;[19]
c)in October 2008 the police came to the applicant’s home and arrested the applicant, her then husband and his fellow practitioner and took them all to a police station;[20]
d)the applicant was charged with harbouring a Falun Gong practitioner;[21]
e)the applicant was detained by the police for seven days;[22]
f)the applicant’s former husband and his fellow practitioner were sent to re-education in a labour camp;[23]
g)the applicant divorced her former husband in 2009 and had not seen or spoken to him since the divorce;[24] and
h)country information supported the applicant’s claim, in her written documentation, that she was arrested and detained for seven days.[25]
[18] CB 143.
[19] CB 143.
[20] CB 143-144.
[21] CB 144.
[22] CB 143-144.
[23] CB 144.
[24] CB 143.
[25] CB XX
The Tribunal found that the applicant had never practised Falun Gong by herself or with her former husband, and that she had “no level of knowledge or understanding which would be expected from a genuine [Falun Gong] practitioner”.[26]
[26] CB 144.
The Tribunal rejected the applicant’s evidence that she was detained for two weeks (as opposed to seven days), and that two months later she stood trial and obtained a lawyer who succeeded in having the charges against her dropped. The Tribunal found that explanation to be inconsistent with an earlier account given by her.[27]
[27] CB 144-145.
The Tribunal also expressed concerns about the applicant’s evidence, stating that:
… whilst the applicant was respectful of the Tribunal it found her evidence was often less than straightforward. She answered Tribunal questions hesitantly and non-responsively. Her account of past events was vague and lacking in detail. She was unable to give a cogent account of her many claims. At times her evidence appeared to be adjusting to questioning by the Tribunal.[28]
[28] CB 143.
The Tribunal noted that at the hearing the applicant was “questioned … carefully”, but was “unable to state any convincing or cogent Convention based reasons for fearing to return to … [China]”.[29] And, whilst the Tribunal accepted that country information indicated that all Falun Gong practitioners are at risk of harm, it did not accept that the applicant would be at risk of persecution of her former husband’s involvement, as the applicant:
a)was no longer married to a Falun Gong practitioner; and
b)had no association with Falun Gong herself,
and that there was a “less than remote chance” that she would come to the attention of the Chinese authorities if she returned to China.[30]
[29] CB 144.
[30] CB 145.
The Tribunal Decision noted that the applicant had no difficulties:
a)obtaining a passport in her own name; or
b)leaving China, and that she did so lawfully,
and was able to depart China without difficulty,[31] and that notwithstanding sophisticated systems in place to identify persons of interest to the Chinese authorities seeking to leave the country the applicant “has not been identified by the Chinese authorities as of interest to them”.[32]
[31] CB 144-145.
[32] CB 144.
Finally, the Tribunal Decision found that the applicant’s evidence that she suffered from the traditional Chinese way of favouring sons over daughters was vague and lacked detail. Furthermore, it found that the Chinese way of favouring sons applies in a non-discriminatory way to the whole population and was not a tradition which targeted the applicant.[33]
[33] CB 145.
On the basis of all the evidence the Tribunal concluded that the applicant did not have a well-founded fear of persecution , and there was not a real chance she would be persecuted if she returned to China. The Tribunal was therefore not satisfied that Australia owed the applicant protection obligations, and decided to affirm the Delegate’s Decision not to grant a Protection Visa.[34]
[34] CB 145.
Grounds of Application
The grounds of the application for judicial review by this Court of the Tribunal Decision[35] are as follows:
Decision was made by RRT without considering my significant evidences. It is unfair.
RRT refused my claim that also based on my passport and visa was issued legally by PRC. It is not well-founded.
RRT didn't consider my situation. I could depart the PRC that doesn’t mean that I will not be put into jail if I go back.[36]
[35] Migration Act, s.476.
[36] Hereafter, Review Ground 1, 2 and 3 respectively.
Tribunal’s decision did not involve any jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[37] Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act.[38]
[37] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[38] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Review Ground 1
In Review Ground 1 the applicant essentially submits that the Tribunal made its decision without considering “significant evidence”, and that that it was “unfair”.
The first respondent submits that Review Ground 1 is without substance. The first respondent says that:
a)the applicant has failed to specify which evidence the Tribunal failed to consider;
b)from the Tribunal Decision it is clear that the Tribunal questioned the applicant in relation to each of her claims and gave consideration to her answers;
c)in any event, the Tribunal carefully considered the claims made in the applicant’s written statement and her evidence at the Tribunal hearing; and
d)it is therefore not that the Tribunal failed to deal with the applicant’s evidence, but rather that it did consider her evidence, but was not persuaded that it established a well-founded fear of persecution.
The applicant did not file written submissions, but at hearing did not point to any significant evidence which was before the Tribunal which it failed to consider.
It was for the applicant to advance before the Tribunal whatever evidence or argument she wished to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason.[39]
[39] Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; [1999] HCA 14 at para.187 per Gummow and Hayne JJ; SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 at para.11 per Jacobson J.
Section 65(1) of the Migration Act requires the Tribunal to refuse the applicant’s application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established.[40]
[40] SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 at paras.13-14 per Greenwood J; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at para.15 per Ryan, Jacobson and Lander JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at para.17 per Black CJ, Sundberg and Bennett JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
It is pre-eminently the Tribunal’s prerogative to allocate the appropriate weight to the evidence before it.[41]
[41] Wu Shan Liang;SZGNJ v Minister for Immigration [2006] FMCA 91 at para.85 per Lloyd-Jones FM.
The Tribunal clearly determined the matter on the evidence before it, and, it must be said, did so thoroughly with proper regard to all of the significant evidence before it. The Tribunal was not satisfied on the basis of the evidence before it that the applicant’s claims had been made out. The Tribunal’s approach to the assessment of the applicant’s evidence, and in relation to certain aspects the credibility of the evidence of the applicant, were fact-finding tasks within its jurisdiction. Any grievance as to the Tribunal’s conclusion in this regard, or as to the significance attributed to any evidence, is a grievance as to the merits of its decision. The function of this Court is not to conduct a merits review of the Tribunal Decision, but to conduct a judicial review of the Tribunal Decision to ascertain if the Tribunal committed jurisdictional error.[42] The findings made were open to the Tribunal and do not exhibit any jurisdictional error.
[42] WZAOB v Minister for Immigration and Citizenship [2011] FCA 162 at para.14 per North J (“WZAOB”).
Review Ground 1 therefore fails.
Review Ground 2
In Review Ground 2 the applicant asserts that the Tribunal Decision was not well-founded insofar as the “refusal” of her review application, or, more correctly, the Tribunal’s affirmation of the Delegate’s Decision, was based on the legality of the issuance of her passport.
The first respondent submits that:
a)the Tribunal’s finding in respect of the applicant’s ability to lawfully obtain a passport and depart China was based entirely on the applicant’s own evidence; and
b)the lawfulness of the applicant’s obtaining of a passport and visa was a relevant consideration as to whether the applicant might suffer persecution due to her political, or imputed political, opinion on the basis of her former husband’s involvement with Falun Gong,
and therefore says that this ground is without substance.
The means by which a person who alleges they are a refugee leaves their country of origin is manifestly relevant material for consideration by the Tribunal as to whether that person has a well-founded fear of persecution, and whether there is a real chance of such persecution in the future. In this case, as set out above, the Tribunal not only considered the legality of the applicant’s departure from China on a valid legally obtained passport, but put that departure in the context of country information which revealed that a person with a lawfully obtained passport who was of interest to the Chinese authorities would be identified as such at the time of exit from China, and the applicant has not been so identified, and was able to exit China accordingly.[43]
[43] CB 145.
Given that the information concerning the applicant’s passport, and the means of her departure, as well as the systems for detecting persons of interest to the Chinese authorities upon exit from China, were all relevant matters for consideration by the Tribunal, the consideration of them by the Tribunal was part of its proper function. The conclusions which it drew from a consideration of that material were open to it, and were fact-finding, and as such are not amenable to judicial review.[44]
[44] WZAOB at para.14 per North J.
At hearing the applicant conceded that her passport was legally issued, but said that her visa had been obtained by the payment of money and that the reasons given for seeking her visa were false. This matter was not raised before the Tribunal. In any event, it does not affect the validity of the Tribunal’s finding that were the applicant a person of interest to the Chinese authorities the systems in place would have resulted in her detection as she sought to leave China on her legally issued passport.
Review Ground 2 therefore fails.
Review Ground 3
In Review Ground 3 the applicant submits that:
a)the Tribunal did not consider her situation; and
b)her legal departure from China does not mean that she will not be jailed if she returns to China.
The first respondent submits that Review Ground 3:
a)is an impermissible attempt to re-engage in merits review;
b)simply challenges the finding made by the Tribunal; and
c)the Tribunal’s conclusion that the applicant was not at risk of being jailed on her return to China was based on a consideration of the applicant’s situation as a person who had:
i)never practised Falun Gong;
ii)no knowledge of Falun Gong; and
iii)divorced and had no contact with her former husband who had practised Falun Gong,
and was also grounded in a consideration of the country information.
The first respondent therefore says that the finding made by the Tribunal in this regard was one which was clearly open to it.
For reasons set out above, the Tribunal did consider the applicant’s situation, and considered all of the evidence before it. Insofar as Review Ground 3 asserts that the Tribunal did not consider the applicant’s situation, it must fail.
The applicant’s assertion that she might be jailed if she returns to China was the subject of consideration by the Tribunal in the Tribunal Decision.[45] The Tribunal carefully questioned the applicant about her fears if she returned to China, but the applicant was unable to articulate a Convention based reason for fearing to return to China.[46] Furthermore, the Tribunal, having regard to the applicant’s personal situation vis-à-vis her husband, and her lack of association with Falun Gong itself, found that there was a less than remote chance that she would come to the attention of the Chinese authorities on her return to China. Again, the Tribunal has considered the relevant material, and come to a factual conclusion which is open to it on that material. The finding of fact thus made is not amenable to judicial review by this Court.[47]
[45] CB 144.
[46] CB 144.
[47] WZAOB at para.14 per North J.
Review Ground 3 must therefore fail.
Conclusion and order
The Tribunal considered all of the applicant’s claims, had regard to the evidence before it, and set out its findings appropriately. In so doing it relied only on relevant material, and did not have regard to irrelevant material. It correctly identified the legal and factual issued which arose, and in respect of those issues did not ask itself any wrong questions. The Tribunal arrived at a decision which was open to it on the factual material available, and which was within the Tribunal’s power under the Migration Act. The Tribunal Decision does not therefore contain any jurisdictional error.
There will therefore be an order that the application be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 1 December 2011
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