SZRNF v Minister for Immigration

Case •

[2012] FMCA 1208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1208
MIGRATION – Review of decision of the Refugee Review Tribunal – allegation of bias – request for impermissible merits review – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.36, 65, 91R, 476, Pt.7
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
SZMJM v Minister for Immigration & Citizenship [2010] FCA 309
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515; (2006) 228 CLR 152
First Applicant: SZRNF
Second Applicant: SZRNG
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1176 of 2012
Judgment of: Nicholls FM
Hearing date: 11 December 2012
Date of Last Submission: 11 December 2012
Delivered at: Sydney
Delivered on: 19 December 2012

REPRESENTATION

The Applicants: In person
Appearing for the Respondents: Ms M Stone
Solicitors for the Respondents: DLA Piper Australia

ORDERS

  1. The application made on 30 May 2012 is dismissed.

  2. The applicants pay the first respondent’s costs set in the amount of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1176 of 2012

SZRNF

First Applicant

SZRNG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 30 May 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 4 May 2012, which affirmed the decision of the delegate of the first respondent to refuse to grant protection visas to the applicants.

Background

  1. The applicants are citizens of the People’s Republic of China (“China”) who arrived in Australia on 23 August 2011 on tourist visas (Court Book – “CB” – CB 13). On 13 September 2011, the first named applicant (“the applicant”) applied for a protection visa. Also at this time, the second named applicant, the applicant’s wife, applied for a protection visa as a member of the applicant’s family unit. Attached to the applicants’ protection visa applications was a copy of the applicant’s passport and a translated document titled “Personal Statement” (CB 1 to CB 44). The applicants had the assistance of a migration agent (“Yu Jie” of “Eternity International”) (CB 45 to CB 47).

Claims to Protection

  1. The applicant’s claims to protection were set out in a statement attached to his application for a protection visa (CB 42 to CB 44).

  2. The applicant claimed that, on 1 September 2007, while a group of Falun Gong practitioners, including his mother-in-law, were practicing, the police broke into the applicant’s home in order to arrest the practitioners (CB 42.8). The applicant claimed that he “tussled with the cops” in an attempt to prevent the police from arresting his mother-in-law (CB 42.8). Consequently he was also arrested and taken to the police station (CB 42.8). He claimed that while in detention he was tortured and beaten because he would not reveal the venues and times of where Falun Gong was practiced and who was involved (CB 42.9)

  3. The applicant claimed that “[a]fter a night’s torturing, [his] nerve on the left leg was damaged permanently and caused muscular atrophy.” (CB 42.9 to CB 43.1). The applicant claimed that the police ignored his injury and he was detained for a further seven days (CB 43.1).

  4. After this incident the applicant claimed that his mother-in-law encouraged him to practice Falun Gong “to get rid of the pai[n]” but that he refused as he “was too scared to be caught” (CB 43.4). Ultimately, in January 2010, the applicant began practising Falun Gong and, after three weeks, the pain in his leg was reduced (CB 43.7)

  5. The applicant also claimed that, on 1 June 2009, his mother-in-law was arrested again while practicing Falun Gong and was consequently detained for three months, during which time she was tortured (CB 43.5).

  6. The applicant further claimed that, on 14 February 2010, he was arrested by the police for practicing Falun Gong and was consequently detained for 15 days, during which time he was tortured (CB 43.8). After his release he claimed that he had “… lost hope to the Chinese Government completely and made up [his] mind to leave [China] where there’s no democracy, no human rights at all” (CB 43.9). Consequently the applicant claimed that he sold their property and travelled to South Korea. The applicant claimed that he and his wife returned from South Korea to China because they were told by a student that they could not seek refugee protection there (CB 43.10).

  7. The applicant claimed that, on 20 May 2011, he was again arrested by police for attending a Falun Gong assembly and was consequently detained for one month (CB 44.3). After his release he claimed that he obtained tourist visas, with the assistance of “the agent”, for himself and his wife in order to travel to Australia to seek protection (CB 44.5).

The Delegate

  1. On 23 November 2011 the delegate wrote to the applicant and invited him to attend at interview scheduled for 6 December 2011, which the applicant attended (CB 48 to CB 52). On 7 December 2011, the delegate wrote again to the applicants informing them that their applications for protection visas had been refused (CB 56 to CB 81).

  2. The delegate ultimately found that the applicant was not a genuine, or committed, Falun Gong practitioner. That finding was, in part, based on the applicant showing no “… deep spiritual or religious commitment to Falun Gong” (CB 77.7).

The Tribunal

  1. On 3 January 2012, the applicants applied for review by the Tribunal of the delegate’s decision (CB 82 to CB 85). They were assisted in making that application by the same migration agent (CB 83).

  2. On 26 March 2012, the Tribunal wrote to the applicants inviting them to attend a hearing before it, scheduled for 30 April 2012 (CB 90 to CB 93). Both applicants attended the hearing before the Tribunal, at which time supporting documentation was presented (CB 95 to CB 121). On 4 May 2012, the Tribunal decided to affirm the delegate’s decision to not grant the applicants protection visas. The applicants were notified of that decision on the same day (CB 122 to CB 151).

  3. The Tribunal was not satisfied that the applicants were witnesses of truth as their evidence “… was not credible, not consistent with the independent evidence and that [the applicant] showed a tendency to alter his evidence in response to concerns raised by the Tribunal regarding aspects of his evidence” ([68] at CB 146). It further noted that it appeared that the applicants had “… manufactured the totality of their claims regarding their experiences in China and their reasons for leaving China” ([68] at CB 146).

  4. These findings were based on, in part, the applicant’s evidence which was variously said to be “inconsistent” ([69] at CB 146 and [70] at CB 147), “manufactured” ([71] at CB 147) and “vague and unpersuasive” ([72] at CB 147).

  5. The Tribunal also found the applicant’s evidence as to his reasons for travelling to South Korea in April 2011 to be “problematic” ([74] at CB 148). While the Tribunal accepted that the applicant suffered an injury, it did not accept that that injury was caused while he was in detention. Consequently, the Tribunal did not accept that the arrest and summons documents proffered by the applicant were genuine. The Tribunal noted the ease with which fraudulent documents were obtained in China, and together with the “problematic evidence”, it did not accept their genuineness ([75] at CB 149).

  6. In regard to the applicants’ claimed involvement in Falun Gong in Australia, it found that “limited evidence” had been provided as to their involvement but that, nonetheless, that involvement has been “extremely limited”. Nevertheless, it found their involvement in any Falun Gong activity in Australia to be engaged in for the sole purpose of strengthening their claims for protection. Consequently, pursuant to s.91R(3) of the Act, this conduct was disregarded for the purposes of the Refugees Convention consideration ([77] at CB 149).

  7. Further, the Tribunal also considered whether the applicants met the additional criterion in s.36(2)(aa) of the Act. However, the Tribunal found that the applicants’ limited involvement in Falun Gong activities in Australia would not become known to the Chinese authorities. (Nor did the applicant’s make any such claim). Consequently, the Tribunal concluded that there was not a real risk that they would suffer significant harm if they were returned to China ([79] at CB 150).

Application to the Court

  1. The grounds of the application to the Court are as follows:

    “1. In RRT’s decision record, par 79, the RRT considered inadequately of the Complementary Protection provisions. RRT said ‘the applicant has not claimed and the Tribunal is also not satisfied that the applicant’s limited involvement in Falun Gong activities in Australia will be known by the Chinese authority and that any such involvement will result in a real risk that the applicants will suffer significant harm upon their return to China.’ RRT has not provided any reasons or foundation to exclude the possibilities that it might be possibly known by Chinese authorities. The applicant’s failure to claim the risk does not exonerate the RRT’s obligation to consider the risk of being persecuted upon return to China.

    2. In RRT’s decision record, par 76, the RRT considers that it is beyond its role to speculate as to the reasons that the applicant came to Australia and lodge an application for a Protection visa. RRT refused to consider important information which would be essential to applicant’s protection visa application. The role of RRT should be inclusive of assessing the applicant’s situation in China. RRT made a jurisdictional mistake about what its role is and breaches procedural fairness by not taking the legitimate and relevant factor of reason the applicant and his wife came to Australia and lodge application for a Protection visa.”

Before the Court

  1. At the first Court date the applicant appeared in person and was assisted by an interpreter in the Mandarin language. The second named applicant did not appear. At this time the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme” (“RRTLAS”).

  2. Also, at this time, a timetable was made by way of relevant orders setting the matter down for final hearing and providing for the filing of documents. The applicants were given leave to file and serve an amended application, any evidence in support, and written submissions. At the time of the hearing, the applicants had not filed anything in support of their application for judicial review.

  3. At the hearing, the applicants appeared in person and were assisted by an interpreter in the Mandarin language. Ms M Stone appeared for the first respondent.

  4. The applicants were given the opportunity of obtaining legal advice. They did not attend when an arrangement had been made to consult with the panel lawyer. The applicant explained that his wife was sick on that day and that he had told his migration agent of this.

  5. It is clear that the applicants’ chose to rely on their migration agent in their application to the Court, rather than independent legal advice. The applicant’s “submissions” to the Court bore little, if any, resemblance to the grounds of the application. Although, it is also a clear, on any plain reading of the grounds, that they could not have been prepared by any legal practitioner.

  6. In any event, before the Court, the applicant’s oral complaints ranged over the following matters. [I note the applicant’s wife support of the applicant’s submissions.]

    1)The applicant took issue with the delegate’s decision, in particular the delegate’s question to him as to whether or not he would say that he was a Falun Gong practitioner if asked by the Public Security (Investigation Bureau) in China.

    2)He asserted that the Tribunal was biased.

    3)The applicant took issue with various factual findings made by the Tribunal.

    4)He complained that the Tribunal rejected the documents that he had submitted in support of his application.

    5)He asked the Court whether or not it wanted to see the scars on his body.

  7. The RRTLAS is intended to deal with, in large part, the provision of assistance and understanding to those applicants who have been found not to be refugees, a significant matter in itself, and who appear before the Court unrepresented.

  8. It is difficult to understand why such persons, even those who, as the applicant himself told the Court (in a different context), lack sophistication, would prefer to rely on the advice of an unqualified (in legal terms) migration agent and not do all in their power to speak to a lawyer, particularly when one is provided to them at the Australian taxpayers’ expense.

  9. In any event, what the Court is left with is a string of complaints, lacking legal substance, and applicants who, despite the opportunity afforded to them, have not exhibited any understanding of the nature of the proceedings they have initiated and sought to prosecute.

Consideration of the Applicant’s Oral Complaints

  1. Before considering the grounds of the application to the Court, I will address the five complaints made by the applicant in his oral submissions to the Court (see [25] above).

  2. The applicant’s first complaint, concerning the delegate’s decision, can go no further before this Court. This Court has no jurisdiction to consider the complaint given the provisions of ss.476(2) and 476(4) of the Act. The delegate’s decision is clearly a “primary decision”, as defined, that is not only reviewable, but has been reviewed, under Pt.7 of the Act.

  3. The applicant’s second complaint was to assert bias on the part of the Tribunal, as well as on the part of the Minister’s department. As to the latter, it cannot be entertained by this Court for the same reason as set out above (see above at [30]).

  4. To assert a charge of bias against any administrative decision-maker is a serious matter. Unlike other assertions of legal error, this carries with it an attack on the very integrity of the decision-maker. It is therefore not to be “lightly” asserted and it must be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  5. It may be allowed that an applicant who has been found by the Tribunal to, in effect, have told lies feels that, in response, this gives some licence to also attack the Tribunal’s integrity. However, in the current case, the applicant’s assertion does not rise above, at best for him, some misguided attempt to complain about an adverse decision.

  6. There is nothing on the face of the Tribunal’s decision record, nor in the material before the Court, to support any allegation that the Tribunal failed to bring an open mind to the proceedings. Indeed it is a rare case that bias can be made out on the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [67] per McHugh J). Nor has the applicant indicated the existence of any other evidence that may have supported his claim in this regard.

  7. The applicant’s third complaint before the Court was in relation to various findings made by the Tribunal. Factual findings made by the Tribunal, including findings as to credibility, are for the Tribunal in the exercise of its jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In the circumstances, the applicant’s complaint is a challenge to the Tribunal’s factual findings, including the critical finding as to credibility. In the absence of any other evidence to the contrary, this complaint does not reveal jurisdictional error. A challenge to the merits is outside the jurisdiction of this Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

  8. In relation the applicant’s fourth complaint, the Tribunal did consider the documents provided by the applicant in support of his claims. In particular the “arrest and summons documents” (see [75] at CB 149). On any fair reading of the Tribunal’s decision it found that the documents were not genuine. This finding was based on its finding that much of the applicant’s oral evidence was “fabricated” and country information, to which it said it had regard, as to the ready availability of such fraudulent documents in China. No jurisdictional error is revealed in the circumstances as the Tribunal’s finding was reasonably open to it on what was before it.

  9. Finally, as to the applicant’s request to show the Court the scars on his body, this is yet another example of the applicant’s misunderstanding of the nature of these proceedings. Despite attempts at the first Court date to explain that the Court had no power to grant the applicants protection visas, the applicant sought to press his refugee claims.

  10. In any event, the matter of injury to his body (his leg) was raised with the Tribunal. I can see no error in the Tribunal’s approach here.

Consideration of the Grounds of the Application

  1. The grounds of the application to the Court were plainly not drafted, or understood, by the applicants. In these circumstances, neither of the applicants was able to assist the Court with any greater understanding as to their meaning.

  2. In ground one it appears that the applicants complain that the Tribunal did not give any reasons as to why, or the basis for the finding that, the Chinese authorities would not know about the applicants’ involvement in Falun Gong practice in Australia. In context, this relates to the Tribunal’s finding concerning complementary protection.

  3. This has also been cast, in part, as a complaint that the Tribunal did not properly consider the complementary protection provisions of the Act. The applicants further complain that, regardless as to what the applicant claimed, the Tribunal had an obligation to consider the risk the applicant faced if returned to China.

  1. The complaint concerning complementary protection fails at a factual level. Relevantly, s.36(2)(aa) of the Act states:

    “a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…”

  2. The Tribunal plainly understood that it was required to disregard the conduct of the applicants in Australia pursuant to s.91R(3) of the Act of the purpose of the consideration arising from the Refugees Convention. However, nonetheless, it also plainly understood that that conduct still had to be considered in the context of the complementary protection provision of the Act ([79] at CB 150). Section 91R(3) of the Act only applies to any consideration concerning protection obligations flowing from the Refugees Convention.

  3. In relation to the complementary protection criterion the Tribunal did consider the Falun Gong related conduct in Australia. However, the Tribunal found that, given that such conduct was “extremely limited”, and in circumstances where they had not been Falun Gong practitioners in China (and therefore to have already come to the attention of the authorities) that there was not a real risk of “significant harm” if they were to return to China. No error is revealed here. Such a finding was reasonably open to the Tribunal on what was before it and for which it gave cogent reasons.

  4. The applicants are correct in saying that the applicants did not expressly claim to fear significant, or for that matter, serious harm, because of their activities in Australia. However, contrary to the assertion in the ground, the Tribunal did consider this matter. No jurisdictional error is revealed here.

  5. What is left of the complaint, therefore, is to take issue with the Tribunal’s finding that the applicant was not a Falun Gong practitioner and, consequently, that he had not suffered any harm while in China. Further, that the “extremely limited” Falun Gong activity the applicants had engaged in Australia would not be drawn to the attention of Chinese authorities. I agree with the Minister that this is a factual conclusion made by the Tribunal. It was reasonably open to the Tribunal to make it on the material and evidence before it, and for which it gave reasons. No jurisdictional error is apparent.

  6. If it is the applicants’ complaint that the Tribunal should have made its own investigation into the extent to which the applicants’ activity would be drawn to the attention of the Chinese authorities, the Tribunal is not under an obligation to make its own inquiries (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] per Heerey, Nicholson and Mansfield JJ). This was not a situation where there was an “obvious” inquiry to make into a “critical issue” (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [20] – [25] and SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 at [30] – [32] per Bennett J).

  7. As the Minister proposes, the real thrust of the applicants’ complaint is an assertion that the Tribunal was required to produce some evidence to support its conclusion.

  8. The Tribunal is not required to provide evidence rebutting an applicant’s claims. The complaint misunderstands the nature of the Tribunal’s jurisdiction to review the delegate’s decision. Ultimately, the Tribunal is obliged to consider the claims expressly made, or clearly arising in the circumstances presented in the review (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60] per Black CJ, French and Selway JJ)

  9. The relevant statutory regime requires the Tribunal to reach a requisite level of satisfaction that the applicants meet at least one of the criteria in s.36(2) of the Act (that is, relevantly, s.36(2)(a) or s.36(2)(aa) of the Act) before a protection visa must be granted (s.65 of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] per Beaumont, Merkel and Hely JJ and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  10. In ground two the applicants assert that the Tribunal denied them procedural fairness by not considering the reason why the applicants came to Australia and lodged protection visa applications. The complaint appears to be that (at [76] at CB 149) the Tribunal refused to “speculate” as to the reasons the applicants came to Australia. This is then bound up with a complaint that the Tribunal did not consider “important information” essential to the applicant’s protection visa application.

  11. With regard to s.36(2)(a) of the Act, the task of the Tribunal was to consider whether the applicants faced a real chance of persecution for a Refugees Convention reason if they were to return to China. The applicant’s wife made no claim that she had suffered harm in the past in China. The evidence from both the applicants was clear in this regard.

  12. The applicant did claim to have suffered past harm. However, the Tribunal rejected the applicant’s factual account of claimed events in China. As set out above, it did so for reasons open to it on what was before it.

  13. What the Tribunal, plainly, stated at [76] (at CB 149) was that once it had found that the claims about events in China had been fabricated, that is the substantial, if not entire, basis of their claim to protection was rejected, it was not necessary to then go on and “speculate” about why they otherwise may have come to Australia. In the circumstances, once the Tribunal found that the call on refugee protection was not genuine, its task was complete in this regard. No jurisdictional error is apparent here.

  14. For the sake of completeness, and given the references in the ground to procedural fairness, I note that it is well established that the Tribunal is under an obligation to ensure that the applicants are given a “fair process” not necessarily a “fair outcome” (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 see also SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). Therefore, contrary to what is asserted by the applicants now, there is no breach of the principles of natural justice for the Tribunal to go beyond what is required in the consideration of the applicant’s claims to seek protection. Therefore, ground two cannot be made out.

Conclusion

  1. Neither of the grounds of the applicants’ application to the Court have revealed jurisdictional error on the part of the Tribunal. Nor was jurisdictional error revealed, let along alleged, in the applicants’ oral submissions to the Court. In those circumstances, the application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 19 December 2012

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Cases Citing This Decision

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SZRNF v Minister for Immigration and Citizenship [2013] FCA 650