SZRIZ v Minister for Immigration
[2012] FMCA 1068
•29 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRIZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1068 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425 Federal Magistrates Court Rules 2001 (Cth) |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 |
| Applicant: | SZRIZ |
| Respondent: | MINISTER FOR IMMIGRATION |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 814 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 29 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,399.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 814 of 2012
| SZRIZ |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 18 March 2012. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a citizen of the People's Republic of China who arrived in Australia in February 2011. He applied for a protection visa in March 2011. He attended an interview with a Departmental delegate. His application was refused and he sought review by the Tribunal.
In a statement accompanying his protection visa application the applicant claimed to fear persecution as a Falun Gong practitioner. He claimed in his statement and at the Tribunal hearing that he had worked as an “associate policeman” during a period where the police raided, monitored and arrested Chinese citizens for practising Falun Gong, that he witnessed Falun Gong practitioners suffering and being mistreated (including being beaten) by the police and that after March 2003 he wrote a letter to “the upper level officers” reporting this mistreatment. He claimed he subsequently lost his job “on the excuse” that he had breached his duty.
However the applicant’s claim to fear persecution appeared to be based on his claims that he thereafter started a small business that became a place where materials and information on Falun Gong were transferred and that he took part in Falun Gong activities. He claimed before the Tribunal that he joined the Falun Gong organisation “out of anger” and in circumstances where, after losing his job, he had been harassed by police officers who suspected that he supported Falun Gong and was distributing Falun Gong material. He claimed that he was arrested in June 2008, but released with a warning after 24 hours. He also claimed that he had engaged in activities such as distributing pamphlets and material for Falun Gong and that he practised Falun Gong “alone at home”.
The applicant claimed that in October 2010 some Falun Gong practitioners known to him were arrested by the police while distributing pamphlets and that he became “fearful” for his safety and fled to Japan for four days. A lawyer in Japan led him to believe that he would not be able to apply for asylum and he returned to China. He claimed at the Tribunal hearing that when he returned to China he was locked up in a police station for a day and interrogated about his involvement with Falun Gong. Subsequently he applied for an Australian visa and travelled to Australia, leaving his wife and children in China. He claimed that he initially did not make any contact with Falun Gong practitioners in Australia and that while he subsequently had attended “a small gathering”, he did not maintain contact because the Falun Gong practitioners “did not believe him” and suspected that he was only taking part in order to obtain a protection visa. The applicant claimed to fear persecution by the authorities in China if he were to return home due to his involvement in Falun Gong.
In its reasons for decision the Tribunal set out in some detail the conduct of the Tribunal hearing, including the evidence of the applicant and issues raised by the Tribunal with the applicant about the credibility of his evidence, his account of past events and several inconsistencies in his evidence.
In its findings and reasons the Tribunal summarised the applicant's claims, but found that his account was not credible. It did not accept his claims in relation to his Falun Gong activities, although it accepted that he had “a reasonable knowledge” of the way in which the police operated in China and that he had worked as an associate policeman for a period of time with the police in China. The Tribunal referred to the fact that the Tribunal hearing had “continued for several hours” during which time “[t]he applicant was calm, composed, articulate and cooperative” and “spoke with ease about police methods of operation” and various incidents. It found the applicant’s “knowledge and composure throughout the several hours of testing his claims and evidence” was more than might have been expected given the background that he claimed as a person with a “modest education” who was “not good at school”, who had a “low level of work and responsibilities” as an associate policeman and who had performed “hard and “dirty work””.
The Tribunal had concerns about the credibility and inconsistency of some of the evidence the applicant gave. It found that these concerns were not addressed satisfactorily by the applicant. It found that the applicant’s description of distributing prohibited material, attending illegal gatherings and avoiding being found with material at his booth “difficult to believe or accept”. It did not believe or accept those accounts. It found that his responses to the issue of his ability to renew his passport to be “implausible”, observing that this would have required direct involvement from the local police who were said to have “a special interest in him”, yet he claimed to have been able to renew his passport “without encountering any difficulty”. The Tribunal did not accept that there were any reasons to question the applicant's passport renewal application and that was why he had no difficulties.
The Tribunal also found a lack of credibility in the applicant’s claims about being monitored and the ease with which he travelled to Shanghai after returning from Japan and to Australia.
The Tribunal accepted that the applicant had read Falun Gong material, including Zhuan Falun. In its reasons for decision it referred to the applicant's responses to questions about his knowledge in that respect. However it did not accept his claims that his stationery booth became a point of distribution for Falun Gong material, that he distributed pamphlets or other Falun Gong material, or that he otherwise took part in Falun Gong activities and attended gatherings. Nor did the Tribunal accept that the police monitored his booth, arrested him, took him to the police station, beat him up, searched his business and home and held him for 24 hours before releasing him, for reasons of activities related to Falun Gong. It did not accept his claims about the arrest of Falun Gong practitioners, about the reasons for his travel to Japan or about being interviewed by the police thereafter for Falun Gong activities. It did not accept that the applicant was of any interest to the police or other authorities or that the claimed raids occurred for Convention-related reasons.
In addressing the credibility of the applicant’s claim to be a Falun Gong practitioner the Tribunal referred to the “stark contrast” between the way the applicant presented at the hearing and the credibility of the evidence he gave about past events in circumstances where the evidence was examined and re-examined over a period of time. It referred to its concerns about the credibility of his accounts of events and incidents he claimed he had experienced. Having considered his responses to its concerns about the credibility of his account of these events, the Tribunal rejected the applicant’s account of past events relating to the authorities’ interest in and actions taken against him in relation to claimed Falun Gong activities as not credible.
In that respect I note that in its account of the Tribunal hearing the Tribunal set out in detail its concerns about the credibility of the applicant’s evidence and gave specific examples of implausibilities, inconsistencies (such as his evidence about the ability of the police to arrest, detain or send a suspect to a “training camp” but that in his case they could not hold him for lack of evidence) and “happy coincidences” the Tribunal described (such as the fact that the applicant claimed never to have encountered the police when distributing material or participating in illegal Falun Gong activities, and in relation to his ability to travel and renew his passport without difficulty). It found that his responses addressed very few of these concerns and were only brief responses. In its findings and reasons it expressed dissatisfaction with the applicant’s explanations.
The Tribunal had regard to “the ease” the applicant displayed in relating knowledge of the literature, principles and values of Falun Gong practice and the fact that he had “performed the exercises confidently and fluidly”. It expressed some concern about whether such knowledge and ease belied the claim that he began the practice in secret in 2008 “without the benefit of viewing others” and found that “[h]is articulation of the belief system” was “more than might reasonably be expected” from a person of the background he claimed.
Despite this, the Tribunal accepted that it was possible to learn the practice and principles of Falun Gong and that the applicant had done so through reading material. However the Tribunal found the applicant’s evidence that he was “shunned” by local Falun Gong practitioners in Australia supported its finding that he was not a Falun Gong practitioner but had “learnt sufficiently to give this impression”. It had regard to the fact that, although he was free to do so in Australia, the applicant had not sought to distribute Falun Gong material or engage in any Falun Gong related public activities.
The Tribunal did not accept that the applicant was a Falun Gong practitioner in China, that he was a practitioner now or that if he were to return to China he would practice Falun Gong.
Hence the Tribunal found the authorities did not and would not have a real interest in the applicant for reasons of the practice of Falun Gong and that he did not face a real chance of persecution in China for a Convention-related reason now or in the reasonably foreseeable future. It affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 13 April 2012. The application contains two general and unparticularised grounds. The applicant did not file an amended application or written submissions. He made oral submissions today. I will deal first with the grounds in the application.
The first ground is that “[the Tribunal] and Immigration Department denied [his] evidence without conscience”. Insofar as the applicant in ground one takes issue with the Tribunal’s factual findings, he seeks impermissible merits review. It was open to the Tribunal to reject the applicant’s claims on the basis of not being satisfied as to his credibility. Credibility findings are a function of the decision-maker (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). The Tribunal’s stated lack of satisfaction in relation to the applicant’s credibility was open to it on the material before it for the reasons which it gave. Ground one is not made out.
The second ground is that “[the Tribunal] failed to comply with procedural fairness”. Insofar as this may be taken as a contention that the Tribunal failed to comply with the codified requirements of procedural fairness in the Migration Act 1958 (Cth) it is not made out. The Tribunal conducted a hearing to which the applicant was invited and attended as required under s.425 of the Migration Act. It based its decision on evidence provided by the applicant.
As the first respondent submitted, the Tribunal’s conclusions reflected its reasoning process and subjective appraisals of the evidence, as well as the identification of inconsistencies, gaps and defects in the applicant’s evidence. There is nothing in the material before the Court to indicate that the Tribunal had any obligation in relation to s.424A(1) of the Migration Act. I note more generally that the Tribunal raised with the applicant dispositive issues and questioned him as to various perceived shortcomings in his case. There is nothing in the material before the Court to suggest any failure by the Tribunal to comply with its obligations under the Migration Act.
In oral submissions the applicant was given the opportunity to explain the basis for the grounds in his application. While he conceded that he did not have any evidence to support his case (an issue that the delegate in particular had raised), he contended that, as he thought his experience was real, it was for the Tribunal to prove that he had not been persecuted.
However it is for the applicant to advance evidence or arguments in support of his contention that he has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Gummow and Hayne JJ). As their Honours pointed out (at [187]) “the proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradicter”. The claims that the applicant makes in this respect do not establish jurisdictional error on the part of the Tribunal.
The applicant also submitted that the Tribunal had no sympathy for his experience, that it had its own opinion and that it was very assertive. Such contentions would, as the solicitor for the first respondent suggested, appear to raise a contention that the circumstances revealed actual or apprehended bias in the conduct of the Tribunal or its decision.
There is nothing in the material before the Court to establish actual bias in the sense of a state of mind of prejudgment indicating that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration as discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (at [72]). Nor is the material before the Court such as to establish apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28. It has not been established on the material before the Court that the hypothetical fair minded lay person 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 would be of the view that the circumstances were such that there could be said to be a reasonable apprehension of bias.
I note that it is a rare and exceptional case in which bias is made out simply on the Tribunal’s reasons for decision. Actual bias must be clearly articulated and strictly proved and questioning of an applicant – even vigorous questioning – is not of itself such as to establish either actual or apprehended bias. It was for the Tribunal to test the applicant’s claims. Even if its questioning revealed that it was sceptical of the applicant’s claims, that would not of itself establish that the Tribunal approached its consideration of the applicant’s claims with a closed mind. Nor would apprehended bias be indicated by the type of questioning which the Tribunal recorded it engaged in during the Tribunal hearing. Nor are the reasons for decision and the conclusions that the Tribunal reached such as to demonstrate a reasonable apprehension of bias. The findings that the Tribunal made in relation to the applicant’s credibility were, as indicated above, open to it on the material before it for the reasons which it gave. There is nothing in the material before the Court to establish actual or apprehended bias, or indeed any lack of procedural fairness on any other basis, such as is contended for in ground two in the application. Ground two is not made out.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful. The first respondent seeks costs in the sum of $3,399. The applicant indicated that he had no money. 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 first respondent in determining when and how to seek to recover such costs. The amount sought is considerably less than that provided for in the Federal Magistrates Court Rules2001 (Cth). It is appropriate and reasonable in light of the nature of this and other similar matters.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 15 November 2012
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