SZRCE v Minister for Immigration
[2012] FMCA 587
•4 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRCE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 587 |
| MIGRATION – Review of decision by the Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424A, 425, 474, Pt.8 |
| NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 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 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 |
| Applicant: | SZRCE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 169 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 July 2012 |
| Date of Last Submission: | 4 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2012 |
REPRESENTATION
The applicant appeared in person with the assistance of an interpreter in the Mandarin language.
| Appearing for the Respondents: | Ms M Stone |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The proceeding before this Court, commenced by way of application filed on 25 January 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $3,500.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 169 of 2012
| SZRCE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 December 2011 and handed down on 23 December 2011.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a practicing Falun Gong follower.
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 applicant’s protection visa application claims, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
The applicant arrived in Australia on 13 May 2011, having departed legally from China on a passport issued in her own name and with a tourist visa.
On 20 May 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. Copies of the applicant’s passport where provided with the application. The applicant also nominated a migration agent to receive correspondence from the Department.
On 11 July 2011, the Delegate refused the applicant’s application for a protection visa.
On 11 August 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 21 December 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 25 January 2012, the 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, is 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 as a result of such events, 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 Art.1A(2) of the Convention.
The Applicant’s application for a protection visa
The applicant stated in her application for a protection visa that because she is a Falun Gong practitioner she was “prosecuted” in China and fears that if returned she would be jailed.
On 29 June 2011 the applicant provided a document to the Department titled “Full Claim Statement” in support of her application for a protection visa.
The applicant claimed that she first became involved in Falun Gong in December 1998 while employed as a receptionist at a restaurant. At this time the applicant claimed that an “experienced traditional medicine doctor” also recommended to her the practice of “Qigong” because “several sets of Falun gong are very similar to ‘Qi’ from the perspective of Chinese medicine”. Consequently the applicant claimed that “they organised several waiters, waitress and chef to practice together” including the applicant. The applicant claimed that she became healthier after two months of practice.
The applicant claimed that from mid 1999 the Chinese government began to persecute Falun Gong practitioners causing the restaurant where the applicant worked to be “rated as serious reeducation group by the local police”. The applicant claimed that the local police attended the restaurant and questioned the employees. The applicant claimed that they were so afraid that they did not answer the police’s questions, but promised not to practice again. Nevertheless, the applicant claimed that the police attended the restaurant every week and would remain in the restaurant lobby for the afternoon and sometimes dine at the restaurant. The applicant claimed that the police never paid their restaurant bills and their attendance scared other patrons. Consequently the applicant claimed the restaurant became bankrupt in May 2000 and the applicant claimed that at this time she ceased practising Falun Gong.
Later the applicant fell pregnant and claimed that after experiencing a difficult child birth she began practising Falun Gong again to improve her health, which she continued to do for six months. The applicant claimed that after this time she began to remember the practice of Falun Gong and became a committed practitioner again.
The applicant claimed that she then began work as an accountant in a coal company. The applicant claimed that she, along with three colleagues and the department’s chief were given a trip to Singapore and Malaysia by the company. The applicant claimed that she took some Falun Gong manuscripts with her which were noticed by her female colleague with whom she shared a room with on the trip. The applicant claimed that her colleague was surprised that she was carrying the material and asked the applicant why she had the material with her. The applicant claimed that on her arrival home the police were waiting outside her residence at which time they arrested her.
The applicant claimed that she was taken to the police station and was asked where the manuscripts were. The applicant claimed that she denied knowledge of the manuscripts and was consequently kicked in the stomach and then later detained, where three days later she was transferred to a detention centre. While in detention the applicant claimed that she was required to participate in anti-Falun Gong
re-education classes. The applicant also claimed that she was interrogated and mistreated. The applicant claimed that she was released on 12 December with the assistance of her husband who paid a bribe of 50,000 RMB.
After her release the applicant claimed that she was required to attend the local police station twice a month to monitor and prevent the applicant practising Falun Gong or attending protests. The applicant was required to write a daily report or be detained for two days for monitoring.
On advice from the cleaner at the police station the applicant claimed that she bribed the police so that she was not given a “hard time” when attending the station. However due to the financial constraints on the applicant and her family she claimed that she was unable to maintain paying a bribe to the police. Consequently the applicant made arrangements through a travel agency to obtain a visa to travel abroad. The applicant claimed that she spent 100,000 RMB to prepare documents where the applicant stated that she had to bribe officers because she had been previously arrested.
On arrival in Australia the applicant claimed that she continued to practice Falun Gong. The applicant also claimed that since arriving in Australia her husband told her that the police attended her family home looking for her and have threatened to list the applicant as “wanted by government”. The applicant claimed that she fears she will be arrested if returned to China.
The Delegate’s decision
On 14 June 2011, the applicant was invited to attend an interview with the Delegate on 7 July 2011. However there was no appearance by the applicant and no explanation was received for her non-attendance.
On 11 July 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate was not persuaded by the applicant’s written claims that there was a real chance that the applicant would face persecution if she was to return to China.
The Tribunal’s review and decision
On 2 September 2011, the Tribunal wrote to the applicant informing her 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 applicant to attend a hearing on 29 November 2011 to give oral evidence and present arguments. The applicant attended the hearing on that date.
The decision of the Tribunal is accurately summarised by the solicitor for the first respondent in her written submissions as follows:
“8. The RRT found that the applicant was not a reliable and truthful witness, and considered that it was therefore unable to rely on her evidence to find that her claims were genuine (see [90]). This finding was made on the basis of the following concerns with the applicant's evidence:
8.1 The RRT found the applicant's evidence at the RRT hearing to be vague and lacking in detail, and considered that the applicant adjusted her evidence in response to questioning by the RRT (see [90]).
8.2 The applicant was able to give some evidence about Falun Gong but the RRT found that this evidence was given without any knowledge or understanding of what she was talking about (see [96]).
8.3 The applicant did not know the name of any Falun Gong books (see [97]).
8.4 The applicant gave evidence that she was not able to do all 5 exercises of the Falun Gong. The RRT considered, on the basis of country information, that a genuine practitioner would know all 5 exercises (see [98]).
8.5 The RRT concluded at [99] that the correct answers given by the applicant were learnt for the purposes of responding to questions at the hearing. The RRT was not satisfied that the applicant's knowledge and understanding of Falun Gong resulted from a genuine commitment or practice.
9. On the basis of its credibility finding, the RRT did not accept that the applicant was a Falun Gong practitioner (see [90] and [101]). Accordingly the RRT rejected the applicant's claim to have been discovered as a Falun Gong practitioner by a work colleague, to have been arrested and detained, and to have been required to report to the police after her release (see [102]-[106]).
10. The RRT considered the applicant's attendance at a Falun Gong group in Sydney and found that the applicant did this for the sole purpose of strengthening her claims to be a refugee. The RRT accordingly disregarded that conduct in accordance with section 91R(3) of the Act (see [109]).”
The proceeding before this Court
The applicant was unrepresented before this Court, although she had the assistance of an interpreter in the Mandarin language.
On 20 March 2012, the applicant attended a directions hearing before me. I explained to the 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 going to the jurisdiction of the Tribunal. I also explained to the 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 applicant confirmed that she wished to continue with the application. The 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 applicant elected to participate in the Court’s Legal Advice Scheme for free legal advice and was sent free legal advice in accordance with that scheme when the legal advisor was unable to contact the applicant.
At the commencement of the hearing, the applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application.
The applicant confirmed that she relied on the grounds contained in the application filed on 25 January 2012, as follows:
“1. There has been a constructive failure by the Refugee Review Tribunal to exercise jurisdiction.
2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958.
3. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.”
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
Ground 1 was not supported particulars, evidence or written or oral submissions.
In support of ground 1, the applicant made no relevant submission. She said that in China one does not have to know how to do all the Falun Gong exercises and that she was just practising to improve her health. She said that if one is very knowledgeable about Falun Gong in China then one would remain in jail.
Without particulars, the applicant’s complaint in ground 1 is meaningless.
A bundle of documents identified as “Court Book”, filed on 10 February 2012, was marked Exhibit 1R. Exhibit 1R disclosed that the Tribunal invited the applicant to attend a hearing in accordance with s.425 of the Act and the applicant attended such a hearing and gave evidence and presented arguments in support of her claims.
The Tribunal commenced its decision record by citing the applicant’s statement in support of her claims. The Tribunal then explored the applicant’s claims with her at the hearing and noted in detail various exchanges it had with the applicant about her claims. The Tribunal then put to the applicant matters of concern it had about her evidence and noted her responses. In particular, the Tribunal put to the applicant that it would have expected her to know the five exercises of Falun Gong, given that she commenced practice in 1998. The Tribunal noted the applicant’s responses although was not ultimately persuaded by them.
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 20 March 2012, the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the applicant 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 applicant and exchanges it had with the applicant at the Tribunal hearing (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
The Tribunal identified the country information to which it had regard.
Ultimately, the Tribunal rejected comprehensively the applicant’s claims to have been a Falun Gong practitioner in China or to have been persecuted in China for that reason. The Tribunal found the applicant’s evidence to be unreliable, vague and lacking in detail. The Tribunal found the applicant not to be a truthful witness.
The Tribunal also found to the fact that the applicant was able to leave the China on a passport in her own name indicated that the applicant was not of interest to the authorities.
The Tribunal accepted that the applicant may have joined a group of Falun Gong practitioners in Sydney. However, the Tribunal found that the applicant had done so for the sole purpose of strengthening her refugee claims and, pursuant to s.91R(3) of the Act, disregarded that evidence.
Ultimately, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution in China for a Convention reasons and was satisfied that there was not a real chance that the applicant would suffer serious harm if she returned to China now or in the reasonably foreseeable future.
Accordingly, the Tribunal affirmed the decision under review.
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).
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).
In the circumstances, there is not a constructive failure by the Tribunal to exercise jurisdiction and ground 1 is rejected.
Ground 2
Ground 2 asserts that the Tribunal failed to comply with s.424A of the Act. Ground 2 was otherwise not supported by particulars, evidence or written or oral submissions.
I explained to the applicant the obligations of s.424A of the Act and asked her what was the information that the Tribunal failed to give her for comment. The applicant answered only that she had been truthful to the Tribunal.
The Tribunal’s decision record makes clear that there was no information that was part of the reason for the Tribunal affirming the decision under review that was not otherwise excluded by s.424A(3) of the Act. In the circumstances, there was no information that enlivened the obligations of s.424A(1) of the Act.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 asserts that the Tribunal failed to notify the applicant of the reason or part of the reasons for the Tribunal affirming the decision under review. Again, ground 3 was not supported by particulars, evidence or written or oral submissions.
When I asked the applicant what was the part of the reason about which the Tribunal failed to notify her, she answered that if she spoke to fast at the hearing the Tribunal would stop her and ask her to pause and then found what she said to be inadequate. This was the first time any such complaint was made. It was not supported by any evidence and the Tribunal’s decision record does not suggest that there was any such complaint made by the applicant to the Tribunal either during or after the hearing.
Whilst that answer is entirely unresponsive to ground 3, the assertion by itself does not demonstrate any error on the part of the Tribunal. As stated above, the applicant was given an opportunity to file and serve evidence in support of her application. Even if made out, it is not a complaint that demonstrates any error going to the Tribunal’s jurisdiction.
As stated above, the Tribunal’s concerns about the applicant’s knowledge of Falun Gong was put to her during the hearing and her responses noted.
The Tribunal is not obliged to give the applicant for comment its subjective appraisals, thought processes and determinations on the evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal 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 and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. 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 and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all information and material provided in support. The Tribunal put to the applicant matters of concern it had about her evidence and noted the applicant’s 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 sixty-six (66) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 4 July 2012
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