SZQZI v Minister for Immigration

[2012] FMCA 748

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQZI v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 748

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 420, 424A, 425

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
SZORL v Minister for Immigration and Citizenship [2011] FCA 553

Applicant: SZQZI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2933 of 2011

Judgment of: Barnes FM

Hearing date: 6 August 2012

Delivered at: Sydney

Delivered on: 6 August 2012

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2933 of 2011

SZQZI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal made on 29 November 2011.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant is a citizen of the People’s Republic of China.  She first arrived in Australia in 2009 as the holder of a Student (Guardian) visa.  Her daughter held a student visa.  Most recently, after returning to China, the applicant arrived in Australia in September 2010.  She applied for a protection visa in December 2010.

3. In connection with her protection visa application the applicant claimed that her daughter had been detained and interrogated by Chinese policemen for carrying Falun Gong material when she returned to China in December 2010.  The applicant’s husband was said to have been accused of cooperating with an illegal overseas organisation and jailed.  

4. The applicant claimed that she and her husband had practised Falun Gong in China from 1996 until they gave it up in 1999 when it was banned by the Chinese authorities.  She claimed that after the authorities detained her daughter they had searched the home of the applicant and her husband and discovered Falun Gong material that she and her husband had kept from 1996 when they practised Falun Gong.  The applicant claimed that she would be suspected of attempting to overthrow the Chinese regime. 

5. In addition, the applicant claimed that a summons had been issued in December 2010 requiring her to attend an interrogation.  She provided the Department with a copy of a document said to be the “Summons Certificate” and also a copy of a document said to be an Arrest Warrant for her husband as well as a number of other documents in support of her claim. 

6. The applicant attended an interview with the delegate of the first respondent.  The delegate refused the application in essence finding the applicant’s claims not to be plausible.  The delegate found the Chinese language documents submitted were seriously defective and inconsistent with country information as to the format of such documents and that they were most likely concocted for the purpose of enhancing refugee claims. 

7. The applicant sought review by the Tribunal.  She submitted further documents in support of her claim, in particular a document described as a Criminal Judgment issued by a particular People’s Court and photographs and a ticket to a show in Sydney related to Falun Gong. 

8. The applicant attended a Tribunal hearing.  The only evidence of what occurred in that hearing before the court is the Tribunal’s account of the hearing.  It appears from that account that during the hearing the applicant claimed that when she visited China in August 2010 she had lent her iPhone to her husband on which was stored information and photographs concerning Falun Gong and that while the applicant’s husband had distributed Falun Gong material in China after she and her daughter came to Australia, the applicant did not know about this until she received a copy of the Criminal Judgment in July 2011.

9. The applicant was recorded as having told the Tribunal that she had practised Falun Gong in Australia since February or March 2011 and that she feared returning to China as the police suspected that she had helped her husband with his Falun Gong activities in China and suspected that she had asked her daughter to bring Falun Gong materials back to China.

10. On 7 November 2011 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth), putting to her information consisting of the oral evidence she gave to the delegate and raising the differences between that information and her oral evidence at the Tribunal hearing. The applicant responded to the s.424A letter on 20 November 2011. On 29 November 2011 the Tribunal affirmed the delegate’s decision.

11. In its findings and reasons the Tribunal commenced by indicating that it had “serious concerns” about the applicant’s credibility.  It referred to major discrepancies and inconsistencies between her oral evidence at the Departmental interview and at the Tribunal hearing that it had put to her in writing.  The Tribunal was of the view that the applicant’s response did not resolve the concerns, especially as she claimed to have “forgotten” major claims (subsequently made at the Tribunal hearing) when she attended the Departmental interview.

12. The Tribunal’s finding in that respect has to be seen in light of its earlier summary of the information put to the applicant in the s.424A letter and her response which is set out in detail in its reasons for decision. In particular, it referred to inconsistencies in her evidence about whether her husband had practised Falun Gong since 1999 or engaged in anti-government activities, when and whether she practised Falun Gong in Australia after her daughter returned to China in December 2010 and whether her husband had been active in distributing leaflets and other Falun Gong related activities after she and her daughter left China in 2009. The Tribunal put to her the differences in her evidence about such issues and raised with her the fact that she gave evidence about giving an iPhone to her husband with Falun Gong material on it for the first time at the Tribunal hearing as well as the differences in her evidence as to what she had said to her daughter in relation to taking Falun Gong material back to China.

13. Even if the applicant was “extremely distressed”, as she claimed at the Departmental interview, the Tribunal did not accept that she would have forgotten a major claim such as the discussion she had with her husband in September/October 2010 during which time she claimed she lent him her phone on which was a “substantial amount” of information about Falun Gong.

14. The Tribunal did not accept the reasons given by the applicant for not attending Falun Gong practice in Sydney from the time of her arrival in October 2009 until December 2010.  It did not accept her duties of care for her daughter (who was attending school) were “so onerous” that they would have precluded her from attending Falun Gong practice if she had been “genuinely committed”, that she was prevented by her lack of understanding of English from travelling by public transport or that she did not have time to contact Falun Gong practitioners in Sydney.

15. It found the applicant’s failure to practice Falun Gong in Australia was the result of her “lack of interest in and commitment to the practice of Falun Gong”.  The fact that she did not indicate at the Departmental interview that she or her husband had practised Falun Gong in China at all after 1999 led the Tribunal to form the view that neither of them had a commitment to the practice or beliefs of Falun Gong after 1999. 

16. The Tribunal rejected the documents submitted by the applicant purporting to be a summons, an arrest warrant and the criminal judgment against her husband as fraudulent.  It had regard to country information it had cited indicating document fraud was “widespread” in China and also to the fact that it had found the applicant’s evidence relating to the reasons for the authorities’ purported actions against her daughter and her husband was lacking in credibility.  It also expressed concern about the delay in provision of the criminal judgment document.  The Tribunal did not accept the applicant’s explanation that her mother was looking for a lawyer for her husband.  It found the late submission of this document and the “confused explanation” for the delay added weight to the finding that the documents were fraudulent.  The Tribunal also had regard to the fact that the content of the purported court judgment was inconsistent with evidence given by the applicant previously about her own and her husband’s “lack of interest” in Falun Gong after 1999. 

17. The Tribunal accepted that the applicant and her husband were Falun Gong practitioners up to 1999 when Falun Gong was banned in China having regard to her knowledge of the practice of Falun Gong at the hearing, but did not accept that she practised thereafter, prior to resumption in February or March 2011, having regard to the absence of any such claims prior to the hearing and the applicant’s explicit statement at the Departmental interview that she had not practised Falun Gong in Australia and that neither she nor her husband had practised Falun Gong since it was banned in China.

18. The Tribunal was of the view that the applicant had been given “every opportunity” in the Departmental interview to explain why her daughter and husband had been arrested and detained as she claimed.  The delegate had raised the implausibility of her claims and asked her why the government would suspect her husband of an offence when there was no evidence of it.  She had not, in that context, stated that her husband continued to practise Falun Gong or that she gave him an iPhone on which there was a “substantial amount” of Falun Gong material when she went to China in 2010.

19. The Tribunal disregarded the applicant’s conduct in Australia in involving herself in Falun Gong demonstrations from March 2011 in accordance with s.91R(3) of the Migration Act. It did not accept her explanation that she took up the practice of Falun Gong after her daughter returned to China out of “loneliness and concern” for her family.  It observed that she had not resumed the practice in China after 1999 and had not taken the opportunity to practise in Australia after she arrived in October 2009.  It was not satisfied that the applicant engaged in “very limited” Falun Gong activities in Australia after February 2011 otherwise than for the purpose of strengthening her claim to be a refugee.

20. The Tribunal considered but did not accept the applicant’s claim that her daughter and husband had been arrested and detained in China in December 2010.  It had regard to her claim that she and her daughter had acquired souvenirs, including Falun Gong material and DVDs, when shopping in Chinatown.  However given that the Tribunal found that the applicant and her husband had not practised Falun Gong since 1999 and that her daughter had never done so, it rejected her claim that the daughter “wilfully insisted” on taking back to China material the applicant knew to be “incriminating and likely to cause trouble” for her daughter, the applicant and her husband.

21. The Tribunal did not accept that the applicant’s daughter took Falun Gong material back to China for “novelty value” or for any other reason.  Hence it did not accept that the daughter was arrested for having Falun Gong material, that the husband was detained because of imputed involvement with Falun Gong or that he was tried and convicted of an offence related to Falun Gong.  It did not accept the claims about a search of the applicant’s home and finding Falun Gong material or that the applicant had been summoned by the authorities as claimed.  It stated that it gave no weight to the documents purporting to support these claims on the basis that document fraud was widespread in China and the applicant’s evidence was lacking in credibility.

22. The Tribunal reiterated that it did not accept the applicant’s claims about the arrest and detention of her daughter and husband or the conviction of her husband and found that it followed that there was not a real chance that she would be persecuted in China because of her involvement in their alleged criminal behaviour. Having regard to the fact it had disregarded under s.91R(3) the applicant’s conduct in Australia in taking up an association with Falun Gong and its finding that she had not genuinely practised Falun Gong from the time of its banning in China by the authorities in 1999, the Tribunal did not accept that the applicant would take up the practice of Falun Gong if she returned to China in the foreseeable future.

23. The Tribunal was not satisfied that there was a real chance that the applicant would face Convention-related persecution if she returned to China in the foreseeable future.  It was not satisfied that she had a well-founded fear of persecution in China within the meaning of the Refugees Convention and affirmed the decision of the delegate. 

24. The applicant sought review by application filed on 21 December 2011.  Her application contains three grounds.  The applicant did not file an amended application or written submissions, but she raised a number of matters in oral submissions today which I have considered.  It is convenient to consider first the grounds in the written application.

25. The applicant claimed first that the Tribunal “failed to comply with the rules of application of S 91R of the Migration Act”, that the test of whether she “would be facing “serious harm”” as defined by the Convention was not “scientifically applied” by the Tribunal and that the Tribunal simply dismissed all her evidence “without following proper evidentiary rules”. 

26. It appears that the applicant takes issue with the fact that the Tribunal did not accept her claims and evidence.  Insofar as she takes issue with whether the Tribunal properly considered the concept of “serious harm”, such contention was not elaborated on and there is nothing in the Tribunal decision to indicate that it misunderstood or misapplied the law in relation to serious harm.

27. The Tribunal not only considered whether the applicant had been persecuted in the past but also whether there was a real chance she would be seriously harmed for a Convention reason if she returned to China in the foreseeable future.  Moreover, in circumstances where the factual underpinnings of the applicant’s claims to persecution were rejected by the Tribunal, the persecution element of the test for granting a protection visa was not otherwise enlivened. 

28. Insofar as the applicant contended that the Tribunal failed to follow proper evidentiary rules there are no particulars. Moreover, as stated in s.420(2) of the Migration Act, the Tribunal is not bound by technicalities, legal forms or rules of evidence.

29. As contended for the first respondent, the Tribunal as the arbitrator of fact is entitled to reject evidence.  Even if a different decision maker may have arrived at a different decision on the material before the Tribunal that does not of itself establish jurisdictional error (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at 1167).

30. Some aspects of what may have been intended to be included in ground one were elaborated on in oral submissions to which I will return but, as expressed, ground one is not made out. 

31. Ground two is that the Tribunal “wrongly applied” s.91R(3) of the Migration Act, that the applicant’s husband’s activities in China were “disregarded” with reference to third party country information and that this would constitute “‘bias’ without conscience”.  The application refers to “paragraph 79”, which I take to be a reference to paragraph 79 of the Tribunal’s reasons for decision, in which the Tribunal recorded that it had disregarded conduct engaged in by the applicant in Australia under s.91R(3) and, for the reasons it had outlined, did not accept that she would take up the practice of Falun Gong if she returned to China in the foreseeable future.

32. No jurisdictional error is apparent in this aspect of the Tribunal’s decision. To the extent that ground two is intended to relate to the applicant’s husband’s activities, that misconceives the operation of s.91R(3) of the Migration Act which is directed at conduct engaged in by the visa applicant in Australia. Section 91R(3) could have no application to the husband’s activities in China. Beyond this there is no evidence that the applicant’s husband engaged in activities in Australia relevant to the applicant’s claims.

33. The Tribunal’s findings in respect of the applicant’s activities in Australia were open to it on the evidence before it for the reasons which it gave and no jurisdictional error is revealed in the Tribunal’s application of s.91R(3) of the Act.

34. Ground two also involves a contention that the Tribunal exhibited bias. Whether this allegation is based on its approach to s.91R(3) or, as emerged in oral submissions, more generally contended, neither actual nor apprehended bias is made out on the material before the court (see in that respect Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). An allegation of bias is a serious allegation. It must be strictly alleged and strictly proved. It has not been established on the material before the court that the Tribunal had reached a state of pre-judgment or that it was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.

35. It is apparent from the Tribunal reasons for decision, the only evidence of what occurred in the hearing, that the Tribunal raised issues of concern with the applicant and gave her every opportunity to respond to its concerns. It also gave her further opportunity pursuant to s.424A of the Migration Act. The fact that the Tribunal raised issues of concern with the applicant is not indicative of bias. Nor is an apprehension of bias apparent either from the Tribunal account of the proceedings or from the Tribunal findings, having regard to the viewpoint of the hypothetical fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias.

36. In essence, the applicant’s concerns in this respect takes issue with the Tribunal’s fact finding.  However, the fact finding had not been shown to be conducted in a manner which resulted in a reasonable apprehension of bias.  The Tribunal’s findings were open on the material before it for the reasons which it gave.  It is well-established that an applicant must do more than simply refer to the fact that evidence or claims have not been accepted or, indeed, that evidence and claims have been tested through the process of the application and at the Tribunal hearing (see the discussion by Flick J in SZORL v Minister for Immigration and Citizenship [2011] FCA 553). Neither actual nor apprehended bias is made out on the material before the court.

1. Ground three in the application is that the Tribunal did not “properly examine” both the written and oral evidence of the applicant, that the Tribunal did not warn the applicant of any issues arising from her evidence prior to making the decision under s.425 of the Migration Act and that the applicant was “deprived of any opportunities to give proper and considered responses” to the reasons for the decision to refuse the application. 

2. First, it has not been established that the Tribunal failed to have regard to any relevant consideration in the sense of considerations made mandatorily relevant.  Rather, the Tribunal considered all the integers of the applicant’s case raised orally and in writing.  Insofar as the applicant takes issue with the Tribunal’s factual findings, credibility findings are a matter for the Tribunal and merits review is not available in this court. 

3. Insofar as this is a contention that the Tribunal was under an obligation to make inquiries (as the applicant submitted orally) this is not a case in which it has been established that the limited circumstances in which such an obligation to inquire would arise in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. There is no evidence that the applicant asked the Tribunal to make inquiries or that the Tribunal undertook to make any inquiries. Nor, contrary to the applicant’s contention, can it be said that the Tribunal failed to consider in detail and address properly her claims in a manner that would show a failure to conduct a review.

4. To the extent that it is contended that the Tribunal failed to comply with s.425 of the Migration Act, that is not made out. Section 425 relates to the Tribunal hearing. The Tribunal decision record indicates that the Tribunal discussed at length with the applicant aspects of her claim in issue and those that were ultimately not accepted, including matters such as her involvement with Falun Gong since 1999; her involvement with Falun Gong in Australia; her claims about her husband’s involvement with Falun Gong and his arrest and detention; her claims about downloading Falun Gong material on her iPhone; the authenticity of the supporting documents; and the applicant’s overall credibility. In particular, the Tribunal decision indicates that the Tribunal informed the applicant that it may reject her documentary evidence on the basis of independent country information, a copy of which was provided to her. The Tribunal made the point that if an applicant’s evidence and claims were not credible, documents purporting to support such claims would not be given weight. According to the Tribunal reasons for decision, the applicant was given and took the opportunity to make submissions in this respect. There is no evidentiary basis for a contention that there was a failure by the Tribunal to comply with s.425 of the Migration Act (see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]).

5. To the extent that this ground is a wider complaint that the applicant was denied an opportunity to respond to the final reasons, or perhaps the provisional reasons, of the Tribunal, the Tribunal is under no obligation to put its provisional reasoning to an applicant for comment. I also note that the Tribunal specifically put to the applicant its concerns about major differences between her oral evidence to the Department and to the Tribunal in the s.424A letter to which she had and took the opportunity to respond. Ground three is not made out.

6. In oral submissions the applicant raised a number of issues, some of which overlap with the claims in her application.  Insofar as she took issue generally with the correctness of the Tribunal decision, such concerns seek impermissible merits review and do not establish jurisdictional error. 

7. The applicant expressed concern on a number of occasions that the Tribunal did not believe the documents she provided and her claims.  It has not been established and nor is it apparent on the material before the court that the Tribunal decision was so illogical, irrational or unreasonable as to demonstrate or give rise to a jurisdictional error (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16). Insofar as the applicant’s contention in this respect relates to the Tribunal’s failure to “believe” the documents that purported to be official Chinese documents it was on the basis of the credibility finding as well as independent country information in relation to documentary fraud in China that the Tribunal concluded that no weight should be given to such documents.  It also had regard to other issues such as the lateness of the provision of the court judgment and the fact that the content of that document was inconsistent with the previous evidence of the applicant.  It was open to the Tribunal in view of all the evidence, having rejected the credibility of the applicant’s claims, to give no weight to the corroborative evidence (see Applicant S20/2002).  The Tribunal did not fail to consider the corroborative evidence.  It assessed and weighed such corroborative evidence, but gave it no weight. 

8. In Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 (in particular at [37]) North and Lander JJ made the point that the Tribunal “does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence”.  When the Tribunal’s findings and reasons are read fairly and as a whole it is apparent that the Tribunal gave no weight to the documents on the basis of the independent country information that document fraud was widespread in China and “crucially” that the applicant’s evidence was lacking in credibility. 

9. It was also contended by the applicant that the Tribunal erred in failing to investigate the authenticity of the documents.  As indicated earlier, this is not a case in which the Tribunal was under a duty to inquire in the manner contended for by the applicant in relation to documents of the nature in question.  Its findings in respect of the documents were open to it for the reasons which it gave. 

10. The applicant contended generally that the Tribunal treated her application unfairly, incorporated the Tribunal member’s personal opinion into consideration of the application and that the Tribunal was not open-minded about her claims and documents.  As considered above, neither actual nor apprehended bias is established insofar as this is intended to be contended.  Contrary to the applicant’s contentions it has not been established that the Tribunal pre-judged her case.  Furthermore, it was open to the Tribunal to consider the applicant’s claims and assess them on the basis of the information before it.  The fact that it did so is not indicative of jurisdictional error.  Insofar as the applicant contended that the Tribunal failed to consider the evidence and documents she provided, as indicated, the Tribunal considered both the applicant’s claims and evidence. 

11. The applicant made a number of submissions on the merits of her substantive claims in relation to lending the iPhone to her husband and whether she practised Falun Gong in Australia.  Her claims in that respect do not establish jurisdictional error on the part of the Tribunal. 

12. Insofar as the applicant claimed that she had been given no opportunity to give an explanation, she had a number of opportunities to give an explanation of her claims in writing, in the Departmental interview, at the Tribunal hearing and in response to the s.424A letter. The fact that the Tribunal did not believe the applicant does not establish jurisdictional error, given that the findings were open to it for the reasons which it gave on the material before it. The more general contention that the Tribunal did not take the application seriously is contrary to the evidence before the court. There is no material before the court to support such a claim.

13. The applicant contended generally that the Tribunal was under an obligation to conduct its own investigation.  However it is for an applicant to put material before the Tribunal in support of his or her claims and for the Tribunal to determine those claims on the basis of the material before it.  Contrary to the applicant’s contentions it cannot be said that the Tribunal did not believe her for “no reason”.  Rather it gave reasons for not accepting her credibility.  The fact that the Tribunal did not accept the applicant’s explanations for its concerns about various aspects of her claims is not a matter that establishes jurisdictional error. 

14. The applicant also took issue with the standard of the advice she received under the free legal advice scheme coordinated through the Registry.  As I endeavoured to point out to her, her concerns in that respect do not establish jurisdictional error on the part of the Tribunal. 

15. The applicant took issue with the fact that the Tribunal had relied on inconsistencies in her claims, apparently on the basis that she was given a second opportunity by virtue of the Tribunal review and appeared to contend that having taken what she saw as a second opportunity and submitted more documents she should have been believed. 

16. However the Tribunal raised with the applicant the inconsistencies in her claims both at the Tribunal hearing and in the s.424A letter. It gave her the opportunity to respond and it considered such responses in its reasons for decision. Insofar as she now seeks to provide further explanations for inconsistencies or inadequacies in her evidence or to rely on the fact that she provided further documents to the Tribunal, that does not establish jurisdictional error on the part of the Tribunal on the material before it at the time of its decision.

17. The applicant’s concerns about the independent country information in relation to documentary fraud in China do not establish jurisdictional error.  It is well-established that the choice and weight to be given to items of independent country information is a matter for the Tribunal.  The Tribunal put the information in question to the applicant for comment at the hearing.  No jurisdictional error is established in relation to the Tribunal’s approach to the independent country information. 

18. As no jurisdictional error has been established the application must be dismissed. 

    RECORDED   : NOT TRANSCRIBED

19. The applicant has been unsuccessful and the Minister seeks costs in the sum of $5,000.  The applicant told the court that she had no money or work.  However, the applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  24 August 2012