SZSHZ v Minister for Immigration

[2013] FCCA 752

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 752

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased, failed to provide adequate reasons for a finding of fact, failed to ask the applicant questions about a particular issue, made findings which were unsupported by evidence, made an incorrect decision and conducted a hearing which was inadequate owing to interpretation deficiencies.

Legislation:

Migration Act 1958, ss.36, 425, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZSHZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2814 of 2012

Judgment of: Judge Cameron

Hearing date: 12 June 2013

Date of Last Submission: 12 June 2013

Delivered at: Sydney

Delivered on: 12 June 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2814 of 2012

SZSHZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 9 October 2011 as the holder of a business visa which was to expire on 9 January 2012.  On 4 January 2012 he lodged an application for a protection visa with the Department of Immigration and Citizenship alleging that he feared persecution in China because of his adherence or perceived adherence to Falun Gong.  On 29 May 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision. 

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow the application will be dismissed. 

Background facts

1. The facts alleged in support of the applicant’s claim for protection visa were set on pages 4 to 19 of the Tribunal’s decision.  Relevant factual allegations can be summarised as follows. 

Protection visa application

1. In a statement attached to his protection visa application the applicant made the following claims: 

   a)he was the owner of a business that produced machinery in China.  From 2003 the success of the business attracted the interest of a local government officer, Mr Chen, who asked him to pay various fees;

   b)Mr Chen threatened him in many ways because he wanted to have the company for himself.  Mr Chen’s mother was the head of the county and Mr Chen used her power to harass the applicant’s company by asking the tax authority and the court to check on the company;

   c)in June 2003 his father died suddenly and, at his request, was buried rather than cremated as required by the local government’s funeral and interment policy.  One month after it had taken place, Mr Chen became aware of the burial and asked a town government officer to exhume and burn the applicant’s father’s body;

   d)he and his family were required by local government officials to be present at the exhumation of his father’s body.  When the officers attempted to conduct the exhumation the family got into an argument with the officials which then turned into a violent confrontation.  Some of the local villagers also joined the fight.  The next day approximately thirty police officers came to the gravesite and forced the applicant and his family to take his father’s body away for cremation.  Whilst they were doing this, the police officers attacked members of his family and many local residents, beating them savagely with batons;

   e)the government did not inform him of the funeral and interment policy.  After he recovered from the police beatings he appealed to the petition office of the Civil Bureau;

   f)on 8 September 2003 he was arrested by police and placed in a detention centre, they stating that he was a Falun Gong organiser and had “spread words against the government”.  He was detained for six months and was beaten and tortured by the police during that time which resulted in two scars to his face.  He was also fined 10,000RMB;

   g)at the time of his detention he had not thought of Falun Gong, although he knew a few of his employees practised it.  He did not attend their practise but he liked their beliefs.  He was forced to defame the Falun Gong while detained;

   h)his company was searched by the police while he was detained, and he was forced to stop producing machinery as the police claimed it was supporting Falun Gong.  The company was then transferred to Mr Chen without legal procedure;

   i)after being released he wanted to appeal his treatment but no one would take his case after he told them he was charged with giving false evidence to the police.  From March 2004 he kept appealing and was sent back to his town many times by the police.  He was detained by police on some occasions and the local police came to his house many times.  They told him that if he tried to appeal again he would be put in gaol and they forbade him to leave his home town.  He was also told regularly to report to police;

   j)since arriving in Australia in 2011 he had become a Falun Gong practitioner.  He learnt from other practitioners that he could apply for refugee status in Australia. 

Tribunal proceedings

1. The applicant appeared before the Tribunal on 2 October 2012 at which point he made the following additional claims:

   a)when the town government officials exhumed his father’s body there were at least a thousand onlookers.  His leg was injured when he rolled down a riverbank after trying to stop the authorities leaving in a vehicle with his father’s body;

   b)on several occasions in or around September 2003, he appealed his treatment to the county Letters and Visits Office and the provincial Civil Affairs Bureau.  On his earlier visits to the Civil Affairs Bureau he was told that the Bureau would solve his problems for him.  On at least one occasion, police were waiting for him at the Letters and Visits Office and warned him not to bring up troubles;

   c)on 8 September 2003 police detained him at the Letters and Visits Office and transferred him to a detention centre.  His family was given a detention notice on or around 8 September 2003 but he had not seen it and did not have a copy of it;

   d)he was told by a policeman that he was detained because his factory was a Falun Gong practice site and because he was the organiser of the site.  He then claimed that during his detention he was not told why he was detained but had assumed that it was because he went to appeal the exhumation of his father.  He stated that the police never told him that he was detained for being a Falun Gong practitioner or for owning a Falun Gong practice site and was only accused of those things by his cellmates who were trying to pick trouble with him.  He only learnt that he was detained because of Falun Gong after he was released and discovered that he had lost his factory.  He claimed that the authorities knew that he did not practise Falun Gong and used it as an excuse to get him out of his factory;

   e)he was assaulted by two cellmates whilst in detention and injured his chin.  He was not mistreated by anybody else in the detention centre.  When the Tribunal put to him his written claims that he was tortured by the police, the applicant asserted that he had said in his original statement that the police had had the cellmates do it and that perhaps the translator had had some problem;

   f)he initially claimed that he was released in June 2004, then stated December 2004 and then further stated he was released on 8 March 2004;

   g)his factory was taken over during his detention and was transferred legally after his release;

   h)upon release he was warned and was asked to pay a 10,000RMB fine which he later said was for medical treatment and was not, in fact, a fine.  He also had to report to police every fortnight from the time of his release.  This requirement was relaxed slightly from August 2009 following the death of his supervising county official and he was absent from the village for a month or two in either 2010 or 2011.  The police had not interfered with his life in any other way;

   i)after his release he sought to appeal again but was scared when he arrived at the appeals office and did not say anything to anyone;

   j)he did not leave China until 2011 because he still had some faith in the Chinese government and did not have a passport;

   k)he applied for a passport in 2009 after losing an earlier one.  He had little difficulty in obtaining it apart from being asked by the issuing authority where his old passport was.  He was assisted by a friend who had a company exporting labourers.  He said that he spoke to his friend at the end of 2009 but as the friend was busy he received his passport in 2010.  The Tribunal put to the applicant that his passport was, in fact, issued in June 2011.  He agreed that it was and that it had taken a very long time to get;

   l)he obtained his visa to travel to Australia through a close friend who also assisted him in obtaining police clearance.  He had “basically no” difficulty at the airport when he was leaving China;

   m)his uncle told him that after he left China people had come to his house in his village and asked where he was.  His wife left the village because police also came to his home asking after his whereabouts; and

   n)since arriving in Australia he had practised Falun Gong with six people in a park in Auburn for two hours on Saturdays and Sundays and had previously practised on Sundays near Central Station in Sydney. 

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or pursuant to s.36(2)(aa) of the Act. The Tribunal’s conclusion was based on the following findings and reasons:

   a)the Tribunal found that the applicant was not a truthful witness and had fabricated his claims for protection.  In this connection the Tribunal referred to significant inconsistencies within the applicant’s written and oral claims about why he was detained, his treatment whilst in detention, his release and what happened to him after his release and the various explanations he had provided for those inconsistencies.  Specifically:

   i)it did not accept that some of those inconsistencies were the result of translation errors, as claimed by the applicant;

   ii)it noted that the applicant had been unable to explain satisfactorily why he took so long to make arrangements to depart China, or how he was able to depart China legally despite being of adverse interest to the police.  It concluded that the applicant was not of interest to the Chinese authorities as he claimed;

   iii)it also referred to the difficulties the applicant had had in recalling key aspects of his claims, such as when he was released from detention, and his failure to provide documentation that would have corroborated his claims despite previously having indicated that he could provide such documentation; and

   iv)the Tribunal described the applicant’s evidence in relation to his practice of Falun Gong in Australia as “vague, evasive and lacking in relevant detail”.  It referred to the applicant’s inability to name Falun Gong exercises when asked, despite claiming to have attended “lots” of practice sessions, and considered that the paucity of his knowledge of Falun Gong was inconsistent with his claims to have practised it in Australia;

   b)because of significant issues relating to the applicant’s credibility, the Tribunal did not accept that the applicant had ever been detained or mistreated by Chinese authorities or that those authorities had any interest in him; and

   c)the Tribunal also found that the applicant was not a genuine Falun Gong practitioner and did not accept that he had any genuine interest in or commitment to Falun Gong or that he had practised Falun Gong in Australia.  Additionally, given the Tribunal’s finding that the applicant had fabricated his claims of past harm in China it also did not accept that there would be a real chance that he would practise Falun Gong if he returned to China or that he would face any harm in the future because he would be, or had ever been, accused of Falun Gong activities.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.   RRT has bias against me as I was deprived of rights to be entitled to the benefits of doubts. In paragraph 125, RRT said that I failed to provide corroborating documentation in relation to my detention notice, conviction of a crime and petition to Letters and Visits Office and all of this has cast doubt upon my claims to have experienced persecution in China. RRT should have understood that for a protection visa applicant like me, it is almost impossible to bring corroborating documentation to support my claims when I was merely trying to escape in one piece from the persecution by the local authorities. It is not fair to expect me to have the documentation prepared when my life was at risk. RRT didn’t avail me of equal rights to be considered like other protection visa applications but based the decision on some prejudicial judgments against me. This is influenced by bias.

   2.   RRT has denied me of procedural fairness by failing to provide adequate reasons for the finding of a fact. In paragraph 127, RRT said that “I find the applicant has fabricated these claims in an attempt to obtain a protection visa”. This finding is not only without foundation but also a poor reflection of the mind of prejudgment and negativity. RRT may have every right to question my credibility in relation to my inconsistencies in my claims. However, RRT should not speculate and make a finding of a fact which there is no evidence to prove that I would fabricate the claims in an attempt to obtain a protection visa. I find this cold and offensive. I think RRT should be impose an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will and the justice would surely be undermined. Therefore, I find the RRT’s decision is not made properly and legitimately.

2. In an affidavit filed with the Court on 4 March 2013 the applicant made the following further claims:

   1.   RRT made unfair judgment on me. They put all their weight on surface evidence instead of concerning my real fear and pain. I had been persecuted by the police in China, which caused the obvious scar on my chin. RRT officer did not ask me anything related to my scar, neither asked about the reason nor how this happened. Officer constantly required [sic: asked] for the arrest warrant and detention and detention warrant, etc. Based only on my failure to provide these evidences, RRT denied to accept my statement of being persecuted. This was unfair.

   2.   RRT did not accept that I was a real Falun Gong practitioner as they thought my knowledge of Falun Gong was vague and superficial. I admit that my level of practice might not be high, but it could never become a reason for RRT to refuse that I am a Falun Gong practitioner. They said I fabricated my statement for protection visa. This is only their assumption without any supporting evidence.

3. At the hearing of this application the applicant also submitted that there might have been problems with the interpreter services provided to him at the Tribunal hearing. 

Ground 1

1. In the first ground of the application the applicant alleged that the Tribunal was biased against him and that this was evidenced by its statement that his failure to provide corroborative evidence which he had earlier said he could provide cast doubt on his claims. 

2. There is no bias to be discerned in the fact the Tribunal was unimpressed by the applicant’s failure to present documents which he had earlier said he could provide.  The Tribunal’s observation that this cast doubt on the applicant’s claims to have experienced persecution does not evidence or even suggest prejudgment.  In this regard the Tribunal had no duty to accept the applicant’s claims uncritically and the fact that it did not do so, which is the implicit factual basis of this allegation of bias notwithstanding the allegation’s reference to the Tribunal having not given the applicant the benefit of the doubt, does not point to bias on the Tribunal’s part. 

3. For these reasons the first ground of the application is not made out.

Ground 2

1. In the second ground of the application the applicant alleged that the Tribunal’s finding that he had fabricated his claims to have been an interested adherent of Falun Gong in Australia and to have practised it in this country was unsupported by evidence and was thus in error.  That is not correct.  The Tribunal expressed adequate reasons for the finding in question, which have been summarised earlier in these reasons, most notably by reference to the applicant’s ignorance of Falun Gong despite his claims to have been a regular and frequent practitioner, at least in Australia. 

Affidavit paragraph 1

1. The first paragraph of the applicant’s affidavit filed on 4 March 2013 alleged that the Tribunal should have reached a decision on the applicant’s review different from the one which it did reach.  Towards the beginning of these reasons it was noted that the Court is not empowered to reconsider the applicant’s application for a protection visa.  That being so, this aspect of the first paragraph of the affidavit identifies no basis on which the Tribunal’s decision might be set aside.

2. The basis of the allegation that the Tribunal made an incorrect decision was the further allegation that the Tribunal had failed to ask the applicant about the scars which he had said in his statement were evidence of him having been tortured by the police.  However, it was for the applicant to make out his allegations when he appeared before the Tribunal.  It was not incumbent upon the Tribunal to do that for him.  In this regard, paras.61-64 of the Tribunal’s decision record that the applicant’s treatment in detention was canvassed at the Tribunal hearing and that the applicant was given an adequate opportunity to press on the Tribunal the significance of his scars.

Affidavit paragraph 2

1. The first part of the second paragraph of the applicant’s affidavit filed on 4 March 2013 does no more than challenge a finding of fact made by the Tribunal.  Findings of fact are matters reserved to the Tribunal and even if the Court disagrees with particular findings that does not provide a basis to conclude that there has been legal error on the Tribunal’s part. 

1. The second part of the second paragraph of the applicant’s affidavit alleged that the Tribunal had no evidence for its finding that he had fabricated his claim to have been a Falun Gong practitioner.  Contrary to this assertion, for the reasons already given, the Tribunal did have sufficient evidence to arrive at the particular conclusion it expressed.

Submissions at hearing

1. The applicant alleged at the hearing of this application that there may have been an error in translation at the Tribunal hearing concerning the identity of the person to whom he had had to report after he was released from detention.  No transcript of the hearing was tendered in support of this allegation and so there is no factual basis to make the findings sought by the applicant.  This is particularly so given that the Tribunal’s summary of the hearing before it, which was the only evidence before the Court relevant to the question and to which no challenge was made, does not support a finding that the relevant part of the applicant’s evidence was mistranslated. 

2. But even if there was an error of the sort alleged by the applicant, it would have concerned an issue which was not material to the Tribunal’s finding and thus would not have led to the situation where it could be said that the applicant was denied the sort of hearing implicitly guaranteed to him by s.425 of the Act.

3. The applicant also made submissions at the hearing of this application touching on the merits of his claim to be entitled to a protection visa but, as already noted, the Court is not empowered to undertake a review of those matters.

Conclusion

1. For these reasons jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 9 July 2013