SZQWM v Minister for Immigration
[2012] FMCA 310
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 310 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China because of his Falun Gong practice in Australia – applicant not believed – Tribunal disregarding the applicant’s conduct in Australia including conduct prior to his claim for protection – consideration of the operation of s.91R(3) of the Migration Act 1958 (Cth). |
| Migration Act 1958 (Cth), ss.91R(3), 424A, 425 |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) 96 ALD 1; [2007] HCA 26 WAEE v Minister for Immigration (2003) 75 ALD 630; [2004] FCAFC 184 |
| First Applicant: | SZQWM |
| Second Applicant: | SZQWN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2677 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 13 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2012 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Ms M Stone DLA Piper |
ORDERS
The application is dismissed.
The applicants are to pay the first respondents costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
The Court notes that the first applicant claimed that he has paid the Court hearing fee.
The Court notes that the applicants have changed their residential address and are now residing at 36 Cardigan St, Auburn, 2144.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2677 of 2011
| SZQWM |
First Applicant
| SZQWN |
Second 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 19 October 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants who are a father and son. The relevant protection visa claims were made by the first applicant, the applicant father. References in this judgment to “the applicant,” are references to him.
The following statement of background facts relating to the applicant’s protection visa claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 4 April 2012.
The first applicant is a male citizen of China born on 10 April 1967.[1] The second applicant is a male citizen of China born on 17 August 1992,[2] and is the first applicant's son. The applicants most recently arrived in Australia on 26 January 2010,[3] having first come to Australia in March 2008.[4]
[1] court book (“CB”) 36
[2] CB 41
[3] CB 40 and CB 42
[4] CB 1 and CB 38-39
The applicants applied for protection (Class XA) visas on 3 December 2010.[5] Only the first applicant made claims in support of the application. The second applicant relied on his membership of the applicant's family unit.
[5] CB 1-32
The applicant claimed to have become involved in Falun Gong activities in Australia from 2008 and in China in 2009, and to fear harm from the authorities in China on the basis of his Falun Gong practice and beliefs.[6] In support of his claims, the applicant submitted photographs depicting him attending demonstrations in Australia against the Chinese Communist Party.[7] He also submitted statements from other Falun Gong practitioners attesting to the applicant's participation in Falun Gong activities.[8]
[6] CB 1-2 and CB 45
[7] CB 51-53 and CB 56-57
[8] CB 58-63
The application was refused by a delegate of the Minister on 17 June 2011.[9]
a)The delegate found that the applicant was not a genuine Falun Gong practitioner, but reached no conclusion as to whether the applicant in fact practiced Falun Gong since arriving in Australia. The delegate found that any involvement the applicant had with Falun Gong in Australia, claimed or real, was for the purpose of claiming protection and not because of any genuine belief. The delegate found that the applicant's involvement in demonstrations in Australia was for the sole purpose of strengthening his claims, and applying s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”), disregarded that conduct.
[9] CB 65-80
The applicants applied to the Tribunal for review of the delegate's decision on 8 July 2011.[10]
[10] CB 81-104
The applicants attended a hearing before the Tribunal on 28 September 2011, at which both applicants gave oral evidence.[11]
[11] CB 120
The Tribunal its decision on 19 October 2011, affirming the decision under review not to grant the applicants protection (Class XA) visas.[12]
[12] CB 134
The Tribunal decision
The Tribunal found that the applicant was not a credible witness at [100][13] for the following reasons:[14]
a)the Tribunal did not accept the applicant's explanations for converting from Buddhism to Falun Gong[15];
b)the Tribunal found it implausible that the applicant would not have discussed his practice of Falun Gong with his son and with his wife[16];
c)the applicant gave inconsistent and contradictory evidence about when and where he practiced Falun Gong[17].
[13] CB 152
[14] see also at CB 154 [110]
[15] see CB 152-153 [101]-[104]
[16] See CB 153 [105]-[106]
[17] see CB 154 [109]
The Tribunal considered the photographs and statements submitted by the applicant[18]. The Tribunal accepted on the basis of that evidence that the applicant had attended Falun Gong activities. However, the Tribunal did not accept that the applicant was a genuine practitioner.
[18] at CB 154-155 [111]
The Tribunal accepted that the applicant had practised Falun Gong since arriving in Australia in 2008, but because it did not accept that he was a genuine practitioner, the Tribunal did not accept that the applicant had practised Falun Gong while in China on a return visit in 2009[19].
[19] see [112]
The Tribunal went on to find that the applicant's sole purpose in practising Falun Gong and participating in Falun Gong activities in Australia was to strengthen his refugee claims. The Tribunal accordingly disregarded that conduct pursuant to s.91R(3) of the Migration Act[20].
[20] see CB 156 [119]
The Tribunal concluded that the applicant would not practise Falun Gong if he returned to China, because he was not a genuine practitioner[21]. Having disregarded the applicant's conduct in Australia, the Tribunal also concluded that the applicant would not be perceived to be a Falun Gong practitioner if he returned to China[22]. The Tribunal concluded that the applicant therefore did not face a well founded fear of persecution for those reasons.
[21] see [120]
[22] see [121]
These proceedings began with a show cause application filed on 23 November 2011. The applicants continue to rely upon that application. There are three grounds in that application:
1. I attended Falun Gong Group in Auburn since July 2008. I have evidence for my practicing Falun Gong. I fear that I will be persecuted by the Chinese authorities because of my involving practicing Falun Gong activities if I return to China.
2. The Refugee Review Tribunal member didn’t accept that I am a genuine practitioner and will be persecuted if I return to China.
3. The Refugee Review Tribunal member has bias against me and failed to take all my claims and evidence into account according to s.91R [and s.477] of the Migration Act 1958.
I received as evidence the court book filed on 15 December 2011. The court book was not received by the applicants before today’s hearing. It transpired that the court book was sent by post by the Minister’s solicitors to the residential address identified by the applicants at the first court date directions made on 15 December 2011. However, the applicants had identified a postal address for service and had moved their place of residence. I provided a copy of the court book to the applicants for reference for the purposes of today’s hearing. I explained the contents of the court book to the first applicant. I am satisfied that no documents in the court book took the applicants by surprise and that they have not been prejudiced by the late provision of the court book.
The Minister’s legal submissions were received by the applicants prior to today’s hearing but they had not had an opportunity to read them prior to today’s hearing because they were in the English language. The interpreter read the submissions to the applicants before I came on the bench today.
The first ground in the application does not raise any allegation of jurisdictional error. It simply repeats in summary form the applicant’s protection visa claims. Likewise, the second ground does not assert any jurisdictional error. It simply repeats the fact that the applicant was not believed by the Tribunal. The third ground alleges bias and a failure to take into account all claims according to s.91R of the Migration Act. There is also an apparent reference to s.477 of the Migration Act, which I am satisfied was included in error.
The first applicant accepted a proposition from me that the reference to s.91R of the Migration Act was intended to be a reference to s.91R(3).
The applicant’s claim of a fear or persecution was essentially a sur place claim. It was based on his conduct in Australia in the practice of Falun Gong and involvement in other Falun Gong activities. The applicant asserted that he commenced Falun Gong practice in 2008, however, he conceded that he did not become a serious practitioner until October 2010, shortly before he made his protection visa application.
The Tribunal did not accept that the applicant was at any stage a genuine Falun Gong practitioner. The Tribunal disregarded all of the applicant’s Falun Gong activities in Australia in purported compliance with s.91R(3) of the Migration Act.
The Tribunal’s reasoning in relation to the application of s.91R(3) is contained at [113]-[119] of its reasons:[23]
[23] CB 155-156
In this case, the applicant has claimed that other than a six week trip to China in 2009 to 2010, his claimed Falun Gong practice has taken place entirely in Australia. The Tribunal has found that the applicant did not practise Falun Gong when he returned to China in 2009. In terms of his practise in Australia, the Tribunal has considered the applicant’s evidence and the evidence from third parties. The Tribunal accepts, based on this evidence, that the applicant has practised Falun Gong at Auburn and Burwood Park and that he has attended Falun Gong activities since 2011. The applicant must satisfy the Tribunal that he has engaged in this conduct in Australia, otherwise than for the purpose of strengthening his claim to be a refugee.
The applicant claims that he joined a Falun Gong practice group in July 2008. When the Tribunal asked the applicant about why he delayed making an application for protection until December 2010, he said that he did not know that Falun Gong practitioners were persecuted until around about the time he returned from China in January 2010. He said that at the beginning he did not think about applying for protection but just about enhancing his health. He said at first he did not want to stay in Australia and that he did not become a committed practitioner until October 2010.
The applicant claims that he practised with a Falun Gong group for more than 18 months before they told him about the persecution of Falun Gong practitioners. When the Tribunal noted that it seemed unusual that the group would meet regularly but that they would not have told him about the persecution of Falung Gong practitioners for over 18 months, the applicant replied that they were usually teaching the exercises and the theory, and that at the beginning they barely talked to each other and he just practised with them. He said that he got to know little by little that about the persecution when he attended the parades and demonstrations with them. The Tribunal does not find it plausible that the applicant would meet with a group of Falun Gong practitioners in China. The Tribunal has found that the applicant is not a credible witness. In view of these findings, the Tribunal does not accept that the applicant did not know about the persecution of Falun Gong practitioners until after January 2011.
The Tribunal has had regard to the applicant’s claims about why he started to practise Falun Gong and that he started to practise at a time that he was not aware of the persecution of Falun Gong practitioners and therefore about his ability to make a claim for protection. For the reasons outlined above, the Tribunal has not accepted those claims.
The Tribunal had regard to the evidence of the third parties about the applicant’s practice in Australia and has found that while it accepts that the applicant has practised and engaged in Falun Gong related activities in Australia, it does not accept that he is a genuine practitioner.
The Tribunal has also found that the applicant is not a credible witness.
Given the above findings, the Tribunal finds that the applicant’s sole purpose in performing Falun Gong exercises in Australia, and participating in Falon Gong activities, was for the purpose of strengthening his claim to be a refugee. The applicant has not satisfied the Tribunal that he has engaged in his conduct in Australia, otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal is therefore required to disregard his conduct engaged in Australia in accordance with subsection 91R(3) of the Act.
There are some difficulties with the Tribunal’s reasoning. The first is that the Tribunal did not make any factual finding as to when the applicant commenced practising Falun Gong in Australia. The Tribunal appears to have proceeded on the basis that it would assume he commenced practice in 2008, as he claimed. The difficulty with that approach is that the applicant did not claim protection until 3 December 2010.
As I found in SZQLJ v Minister for Immigration & Anor [2011] FMCA 932, s.91R(3) may apply to conduct in Australia before protection is claimed. That recognises that a person may plan a claim for protection before the clam is made. Further, s.91R(3) does not require a blanket judgement to be made about conduct in Australia. It is open to a decision-maker to make different judgements about conduct in Australia occurring at different times or for different purposes. For example, it would have been open to the Tribunal to find that the applicant had commenced Falun Gong practice in 2008 out of curiosity, but, in 2010, heightened his involvement in order to support his protection visa claims. Alternatively, the Tribunal might have found that the applicant did not commence practising Falun Gong at all until 2010, shortly before he claimed protection.
That is not to express any view as to what the Tribunal should have found. That is simply to recognise that a range of conclusions were open to the Tribunal. Where the Tribunal does not specify in its reasoning relevant factual findings and explanations for its conclusions, the court is left to engage in some speculation.
A concern for the Tribunal was the applicant’s delay in seeking protection if he had been a genuine Falun Gong practitioner. In those circumstances, it is surprising that the applicant, if not a genuine Falun Gong practitioner, would engage in Falun Gong practice in Australia for years before making a claim for protection for the sole purpose of supporting that claim.
There is a risk in the Tribunal, if it does not make clear factual findings and adopt clear reasoning, might expose itself to allegations of absurdity and irrationality. However, I am not able to conclude that the conclusions reached by the Tribunal concerning the applicant’s conduct in Australia were unavailable to it on the evidence before it. Reasonable minds can differ about the probability of an applicant engaging in Falun Gong practice for the sole purpose of enhancing a protection visa claim and then delaying making that claim for a period of years.
It is important to bear in mind here that s.91R(3) casts upon an applicant the onus of satisfying the Tribunal that conduct in Australia was engaged in for some purpose other than enhancing protection claims. While the Tribunal purports to make a finding at [119][24] of its reasons, it was, in reality, for the purposes of s.91R(3), expressing a lack of satisfaction. It was for the applicant to persuade the Tribunal that he had some purpose for his conduct engaged in prior to claiming protection other than supporting that claim. If the applicant was never a genuine practitioner as the Tribunal found but had some purpose other than to enhance his protection claims, that purpose may not have assisted him.
[24] CB 156
While I have some concerns about the lack of express factual findings by the Tribunal and the paucity of reasoning, I am not satisfied that the Tribunal fell into jurisdictional error in applying s.91R(3).
There is no evidence to support the allegation of bias, and I reject it. To the extent that the third ground in the application claims the Tribunal overlooked claims or evidence, I likewise reject that assertion:
a)Bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision-maker. It must be clearly articulated and proved by admissible evidence. In the absence of any evidence as to the conduct of the Tribunal at the hearing or otherwise, no bias should be inferred solely from factual findings that were open on the material before the Tribunal.[25]
b)The ground of failure to take into account a relevant consideration can only be made out where a decision maker fails to take into account a consideration which he or she is bound under the Migration Act to consider.[26] In the present case, the Tribunal was bound to consider the applicant's claim as to why he was a person to whom Australia owed protection obligations. The applicant's claim was to fear persecution in China as the result of his practice of Falun Gong. This claim was clearly considered and rejected by the Tribunal, and the assertion that the Tribunal failed to consider the applicant's claims cannot be made out.
c)The assertion that the Tribunal failed to consider all of the applicant's evidence cannot be made out. The Tribunal considered the applicant's documentary evidence and relied on that evidence to accept the applicant's claim to have practiced Falun Gong in Australia[27]. It is noted that in any event, the Tribunal is not obliged to refer in its reasons to every piece of evidence or every contention by an applicant,[28] or to expressly grapple with any evidence contrary to its findings of fact.
[25] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 519 and 531–532, Re Refugee Review Tribunal, ex parte H(2001) 179 ALR 425 at 434; VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at 107.
[26] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
[27] see CB 154 [111]
[28] WAEE v Minister for Immigration (2003) 75 ALD 630; [2004] FCAFC 184 at [46] per French, Sackville and Hely JJ
The Minister’s submissions also deal with the Tribunal’s compliance with Part 7, Division 4 of the Migration Act which was not expressly raised by the applicants. I agree with those submissions.
The Minister submits, and I accept, that there was no “information” before the Tribunal which enlivened its obligations pursuant to s.424A(1) of the Migration Act.
a)The applicant's son (the second named applicant) gave oral evidence at the Tribunal hearing, which is summarised by the Tribunal at [76]-[79][29]. The Minister accepts that his evidence could fall within the requirements of s.424A(1) despite being an applicant in the Tribunal proceedings.[30]
b)However, s.424A(1) only applies to information which the Tribunal considers would be the reason or part of the reason for affirming the decision under review. This has been interpreted as requiring the material to “contain in their terms a rejection, denial or undermining” of an applicant's refugee claims. [31]
c)The applicant's son did not give any oral evidence which in its terms rejected, denied or undermined the applicant's claims. His evidence therefore does not come within s.424A(1), and that this evidence did not enliven the Tribunal’s obligations under that section.
d)There was otherwise no information before the Tribunal which potentially fell within s.424A(1).
[29] CB 148
[30] See SZGSI v Minister for Immigration (2007) 160 FCR 506; [2007] FCAFC 110
[31] SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) 96 ALD 1; [2007] HCA 26, at [17]
Further, the Tribunal complied with its obligations pursuant to s.425 of the Migration Act.[32]
a)The applicants were invited to, and attended, a hearing before the Tribunal at which they gave evidence regarding the dispositive issues on the review.
b)The applicants were on notice from the delegate's decision that the applicant’s credibility was in issue. Similarly, the applicants were on notice, from the delegate's decision, as to the operation of s.91R(3) and its potential relevance to their application.
c)The issues relied upon by the Tribunal to conclude that the applicant practised Falun Gong in Australia for the sole purpose of strengthening his refugee claims were discussed at length at the Tribunal hearing. The applicant was therefore given the opportunity to present evidence on this issue.
[32] With reference to SZBEL v Minister for Immigration (2006) 228 CLR 152
I find that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,500. Scale costs in this instance would be $6,240. Neither applicant made any submission as to costs.
I will order that the applicants are to pay the first respondents costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 19 April 2012
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