SZQPM v Minister for Immigration
[2012] FMCA 65
•7 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQPM v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 65 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 NADH of 2001 & Ors v Minister for Immigration (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H [2001] 179 ALR 425 ReMinister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SCAA v Minister for Immigration [2002] FCA 668 |
| Applicant: | SZQPM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1977 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 7 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Weston Minter Ellison |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1977 of 2011
| SZQPM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 9 August 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims for protection based upon his practice of Falun Gong. The following statement of background facts relating to the applicant’s claims and the decision of the Tribunal on them is derived from the Minister’s written submissions.
The applicant is a citizen of the People's Republic of China[1] who arrived in Australia on 8 October 2001 with a tourist (Subclass 676) visa.[2] That visa allowed the applicant to remain in Australia for three weeks from the date of his arrival and, after remaining in the community for a number of years, the applicant lodged an application for a protection (Class XA) visa on 24 September 2010.[3]
[1] court book (“CB”) pages 28-29
[2] CB pages 84 and 97
[3] CB
The applicant's claims for protection were set out in a statement provided with the protection visa application forms.[4] He claimed that he had developed sympathy for Falun Gong practitioners while working in a drug abuse control section of a prison in 1999 and that he was implicated after some of the prisoners escaped.[5] The applicant claimed that he had received help from Falun Gong practitioners in Australia and that, even though he is not a practitioner in a strict sense, he had “sympathy and support” for Falun Gong.[6]
[4] CB pages 15-17
[5] CB pages 15-17
[6] CB page 17
The applicant was interviewed by a delegate of the Minister on
24 January 2011.[7] By decision dated 4 February 2011 the delegate refused to grant the applicant a protection (Class XA) visa as the delegate was not satisfied that the applicant was a person to whom protection obligations were owed.[8]
[7] CB pages 30-31
[8] CB pages 47-53
The applicant applied to the Tribunal for review of the delegate's decision on 7 February 2011.[9]
[9] CB pages 54-55
By letter dated 14 March 2011 the Tribunal invited the applicant to appear before it to give evidence and present arguments in support of the application on 3 May 2011.[10] That hearing was adjourned as the requested Mandarin interpreter was found not to be suitable for the applicant.[11] The hearing was resumed on 20 May 2011 with the assistance of a Cantonese interpreter.[12] At the hearing the applicant asked for more time to write to the Tribunal and he was told that he could do so by 17 June 2011.[13]
[10] CB pages 67-68
[11] CB page 74 and 76-78
[12] CB pages 91-93
[13] CB page 122 at [50]
On 16 June 2011 the Tribunal received a letter from the applicant together with a translated statement from a person named Wen Chen dated 15 June 2011 and photographs showing the applicant participating in protests in Sydney.[14]
[14] CB pages 106-109
By decision dated 9 August 2011 the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.[15]
[15] CB pages 111-127
The Tribunal accepted that people who oppose the authority or the Chinese Communist Party and Falun Gong practitioners or supporters might suffer persecution in China.[16] However, the Tribunal did not accept that the applicant left China for the reasons claimed or that he faced a well founded fear of harm there.[17] The primary basis for the Tribunal’s decision was the finding that the applicant had not given truthful evidence about his claims.[18] In reaching this conclusion the Tribunal made the following findings and observations:
a)The Tribunal considered that the applicant's “very lengthy” delay in lodging an application for a protection visa was not consistent with his claim that he would be persecuted in China, especially as he had known about the availability of such visas for approximately three years.[19]
b)The Tribunal was not satisfied that the applicant had given truthful information about his work history in China.[20] The Tribunal did not accept that the applicant had worked in a drug abuse centre as he had claimed and so did not accept that he helped Falun Gong practitioners escape.[21]
c)The Tribunal accepted that the authorities at the Chinese consulate in Sydney may have asked the applicant questions about his passport and his intentions to return to China when he obtained a new passport.[22] However, it did not accept that this was because of the alleged events in China or because the authorities were interested in him.
d)The Tribunal did not accept that the applicant's claim that his family members had, or would have, difficulties in China because of him.[23]
e)The Tribunal accepted that since coming to Australia the applicant had attended some Falun Gong activities and had been involved in activities opposing the Chinese Communist Party.[24] However, the Tribunal was not satisfied that the applicant had participated in that conduct otherwise than to strengthen his claim to be a refugee and so disregarded it for the purposes of the application pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).[25]
f)The Tribunal also accepted that Wen Chen believed that the applicant was a genuine Falun Gong practitioner and a reliable person.[26] However, the Tribunal did not accept that the applicant had been a genuine practitioner in either Australia or China.
[16] CB page 123 at [58]
[17] CB pages 124-127
[18] CB page 124 at [60]
[19] CB page 124 at [60]
[20] CB page 124 at [62]
[21] CB page 125 at [62]
[22] CB page 125 at [63]
[23] CB page 125 at [63]
[24] CB page 125 at [64]
[25] CB page 126 at [65]
[26] CB page 125 at [64]
The Tribunal concluded that there was no plausible evidence before it that the applicant had suffered or would suffer persecution in China because of his religion, his membership of a particular social group, his political opinion or imputed political opinion, or for any other Convention reason at the time of the decision or in the reasonably foreseeable future.
Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom “Australia has protection obligations under the Refugees Convention” and therefore concluded that he did not satisfy the criterion set out in s.36(2)(a) of the Migration Act for a protection (Class XA) visa.
These proceedings began with a show-cause application filed on
5 September 2011. The purported grounds to that application are set out in an attachment to the application:
Orders sought by the Applicant
1, I disagree with Immigration and RRT’s decision. They did not well consider my potential risk and danger if I return to China due to my Falungong record.
2. RRT member did not carefully consider the evidence and my explanation to my history associated with Falungong in China especially my relatives in China who suffers due to my background.
3, RRT treated my unfair and did not give me enough chance to explain about the issues in relation to my previous employment history in China and it is the true after approx ten year’s time, my memory couldn’t produce accurate date and details. I feel innocent in the item of 61 & 62 of decision with so called “inconsistencies and credibility” issue pointed out by the member.
The Grounds of the Application are:
1, I am free from China and used to work in detention centre of [Falungong] practitioners. Due to my sympathy and protection of Falungong practitioners in China I was related in threat and persecution, and driven by Chinese government and that is why I escaped to Australia.
2, I can not go back to China since Chinese government never stopped to look for me and I am very scared to be taken by police and sentenced.
3, As a committed Falungong practitioners, I concerned about my safety if return. My family will also be further affected if I return to origin since they actually have been harassed and investigated by government.
The paragraphs under the heading “The Grounds of the Application are” are in essence a summary of the applicant’s claims for a protection visa. Those go to the merits of the Tribunal decision. The paragraphs under the heading “Orders sought by Applicant” do contain in very general terms an expression of the applicant’s dissatisfaction with the Tribunal’s decision.
Because of the generality of the applicant’s claims I listed the matter for a show cause hearing today. At the same time, on 6 October 2011, I made procedural orders, including an order for the filing of any additional evidence by the applicant, including any transcript of the Tribunal hearing by 17 November 2011. I also provided the applicant with the opportunity to file and serve an amended application. The applicant has not taken up either of those opportunities. Further, only the Minister has filed written submissions.
I received as evidence the court book filed by the Minister.
The Minister submits that all of the grounds of review and the purported orders raised in the originating application principally seek to cavil with the factual findings of the Tribunal. To this extent, it is clear that no arguable jurisdictional error arises as it is well established that findings of fact, including findings of credibility, are a function of the primary decision maker par excellence (cf Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 292; ReMinister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423).
To the extent that the second “order” of the application alleges that the Tribunal erred in its consideration of the applicant's evidence, the Minister submits that no arguable jurisdictional error is raised. It is well established that the weight to be accorded to the evidence before it is a matter for the Tribunal (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and the Tribunal is not required to give a subset of reasons why it accepted or rejected individual pieces of evidence (see Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407).
The Minister notes that the third “order” raises an allegation that the Tribunal treated the applicant unfairly which might be generously construed as an allegation that the Tribunal’s decision was affected by actual or imputed bias. The Minister submits that any such allegation should not be found to succeed on the evidence before the Court.
It is well settled that allegations of bias, or the apprehension of bias, are serious charges to make against any decision maker which must be clearly made and distinctly proved (cf Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425). As such, it is rare that such an allegation can be made out with reference to the decision record alone (see SCAA v Minister for Immigration [2002] FCA 668 at [38], per von Doussa J).
The Minister submits that there is nothing in the evidence before the Court which supports an allegation that the Tribunal was biased in any way.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that it was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
Moreover, there is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] 179 ALR 425 at [27]- [32]; NADH of 2001 & Ors v Minister for Immigration (2004) 214 ALR 264 at [115]).
I asked the applicant at the trial of the matter today to explain his concerns about the Tribunal decision. He expressed a concern that the Tribunal’s hearing was unfair because he did not have sufficient time to explain his claims. He said that the Tribunal member cut him off before he was able to complete what he wanted to say. I asked the applicant if he had raised any complaint with the Tribunal at the time of the hearing. He said that he had raised his concern with the interpreter, and that the interpreter had told him he could not do anything about it. If such an exchange occurred, it would have been inconsistent with the interpreter’s obligation to interpret faithfully what the applicant said into the English language. I note that the applicant had insisted upon a Cantonese interpreter, having been initially provided with a Mandarin interpreter.
I put to the applicant that if he had raised any complaint to the Tribunal at the Tribunal hearing, I would have expected the Tribunal to have made some mention of it in its reasons. The Tribunal deals in its reasons with what occurred at the Tribunal hearing from [25]-[50] of its reasons[27]. That appears to be a very comprehensive record of the course of the Tribunal hearing. There is no indication in that record of any concern on the part of the applicant about an inability to put his case.
[27] CB 115-122
Further, the court book records[28] that the applicant was provided with a copy of the sound recording of the Tribunal hearing at his request.
On 16 June 2011 the applicant made a post-hearing submission to the Tribunal in writing in the English language[29]. Although the applicant told me that he was very concerned at the time of the hearing about being cut off by the presiding member, he was unable to explain why he made no mention of that concern in his post-hearing submission.
[28] CB 103
[29] CB 104
I find that the applicant has failed to demonstrate an arguable case of procedural unfairness in the conduct of the Tribunal hearing.
The application also appears to assert some inadequacy in the Tribunal’s consideration of the applicant’s claims. To the extent that that is a dispute over the merits of the Tribunal’s decision, the Court cannot assist. To the extent that it is an assertion of jurisdictional error, I find that no arguable case has been established.
The court book discloses to my satisfaction that the applicant’s claims were considered by the Tribunal and no element or integer of the applicant’s claims was overlooked. Neither does the available material raise an arguable case of any other jurisdictional error by the Tribunal in the consideration of the applicant’s claims.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules 2001”).
Costs should follow the event in this case. The Minister seeks scale costs in the sum of $3,123. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 23 February 2012
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