SZSNY v Minister for Immigration
[2013] FCCA 1465
•27 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSNY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1465 |
| Catchwords: ADMINISTRATIVE LAW – Failure to consider unarticulated claim. |
| Legislation: Migration Act 1958, ss.36, 91R, 424AA, 474 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2005) 144 FCR 1 Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 |
| Applicant: | SZSNY |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 155 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 28 August 2013 |
| Date of Last Submission: | 17 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms R. Graycar |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari issue bringing the second respondent’s decision of 4 January 2013 into this Court to be quashed.
A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 8 May 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 155 of 2013
| SZSNY |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who arrived in Australia on 26 September 2011 on a business visa. On 24 November 2011 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 religious beliefs. On 11 April 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.
In these judicial review proceedings the Court’s 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.
For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-10 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement attached to his protection visa application:
a)in 2008 he was introduced to Falun Gong by a friend, Mr Wang, who also gave him a copy of “Zhuan Falun”;
b)in August 2009 the police raided his home while he was practising with a Mr Li and two other people. The police found his copy of Zhuan Falun and they were all arrested. He was taken to the local police station where he was questioned, threatened and tortured before being sent to a detention centre where he was bullied and tortured further. The police in the detention centre encouraged other detainees to beat him and his knee was injured. He was released after a month when his wife paid a fine of RMB10,000;
c)his parents were threatened by the police. The police also told his boss to monitor him but his boss sympathised with him and let him keep his job;
d)the police told people that he had given them the names of other Falun Gong practitioners so other practitioners became afraid of him;
e)he had been practising Falun Gong in Australia; and
f)he left China because he did not want to live in fear. He feared that if he returned to China he would be caught by the police and sent to gaol or to a mental hospital.
The applicant made the following claims at a Tribunal hearing on 17 August 2012:
a)he was given a copy of Zhuan Falun in 2009 by a friend, Mr Li, who was also arrested with him in August 2009. The reference to a Mr Wang in his statement must have been a translation error;
b)he had applied for a passport in 2007 when his company was selecting employees to work on a large project overseas. Ultimately he did not go and he misplaced his passport;
c)in August 2010 he was denied a replacement passport because the Ministry of Public Security had his file which indicated that he had practised Falun Gong and had been arrested. His travel agent then found a company to sponsor him and he paid that company RMB100,000 in order to obtain a passport, which was issued in December 2010;
d)he did not leave China until September 2011 because his Australian business visa application had taken a long time. He delayed leaving China for two weeks after obtaining his visa because his sponsor company had asked him to wait and travel with another salesman; and
e)after his arrival in Australia he had not immediately applied for a protection visa because his agent had told him that he had to wait until his business visa expired and because he was not familiar with the law.
During the hearing and pursuant to s.424AA of the Act, the Tribunal invited the applicant to comment on or respond to the following inconsistencies in his evidence:
a)in his written statement he claimed to have been taken to the police station when he was arrested but at his interview with the delegate he claimed to have been taken to a fertiliser factory which was a temporary detention centre;
b)in his written statement he claimed to have been released from detention after his wife paid a fine of RMB10,000 but at his interview with the delegate he claimed that his parents had paid the fine and that it had been RMB50,000;
c)at his interview with the delegate he initially claimed that he did not write a “denunciation” letter in order to be released but then said his parents had done so on his behalf after the delegate put to him information suggesting that practically no-one arrested as a Falun Gong practitioner could be released without first writing one; and
d)at his interview with the delegate he claimed that he had not mentioned his participation in pro-Falun Gong protests outside the Chinese Embassy in Canberra in his written statement because it had occurred after he had given his information to his migration agent for the preparation of his protection visa application whereas his claimed participation in those protests had in fact occurred one month before his protection visa application was lodged.
In response, the applicant said:
a)when he was arrested he was taken to the police station and tortured for one night. He was then sent to a detention centre where he was also tortured and his finger and kneecap broken. He had not sought medical treatment after his release because Falun Gong practitioners did not go to hospital;
b)the police had tried to make him sign a “denunciation” letter in order to be released but he had refused. He was released when his parents paid the police RMB50,000; and
c)when he first arrived in Australia he had lived in Canberra and had heard from other people that there were Falun Gong practitioners who demonstrated outside the Chinese Embassy every day. He joined the demonstrators on 7 October 2011. He also joined them for practice in a park on Saturdays and Sundays.
The Tribunal’s decision and reasons
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 found that the applicant was not a truthful witness and that he had fabricated his claims. For the following reasons, the Tribunal did not accept the applicant’s claims to have been a Falun Gong practitioner in China or to have been arrested and detained or otherwise harmed for that reason:
a)the applicant was unable to resolve to the Tribunal’s satisfaction the matters reflecting adversely on his credibility which were put to him pursuant to s.424AA of the Act. The Tribunal found that the inconsistencies in the applicant’s evidence concerned the most significant part of his claims (his arrest and detention) which was a single, traumatic, physically disabling and relatively recent experience which he could reasonably have been expected to recall accurately. The Tribunal noted that the applicant only explained the inconsistencies in his evidence after they were put to him and after he had already affirmed the accuracy of his written statement and had made no comments on the delegate’s decision. The Tribunal further noted that the applicant had only raised his claim of a “denunciation” letter in response to information put to him by the delegate that release without such a letter was unlikely. The Tribunal found the applicant’s explanation that his parents had signed the letter unlikely given that the Chinese authorities would probably require the renunciation of Falun Gong to be by a practitioner and not his parents. The Tribunal also noted that the applicant had not responded to the inconsistency put to him about his claimed involvement in protest activity outside the Chinese Embassy in Canberra;
b)the applicant did not provide any documentary or corroborative evidence to support his claims to have been a Falun Gong practitioner in China and to have been arrested, detained, seriously injured and fined a large sum for that reason;
c)the applicant was able to depart China with ease on a passport and visa in his own name which, according to country information, indicated a lack of adverse interest by the Chinese authorities;
d)the applicant’s ten month delay in departing China after his passport was issued and his two week delay in departing China after his Australian visa was issued were indicative of an orderly and planned departure rather than flight from genuinely feared persecution;
e)the applicant raised the claim that he had had to pay RMB100,000 for his passport late in his protection visa application process. The Tribunal found it illogical that the applicant had been able to obtain a passport only four months after he had been denied one because of his status as a known Falun Gong practitioner who had been arrested and detained; and
f)the applicant’s delay of two months in applying for a protection visa, in the context of his business visa which was valid for three months, did not support the inference of a genuinely held fear of persecution if he returned to China.
The Tribunal found that the applicant’s responses to the information put to him pursuant to s.424AA of the Act did not address its concerns about his credibility. In light of those concerns, and given that the applicant’s claims were not corroborated by supporting and credible evidence or documentation and were not consistent with independent country information or otherwise compelling by reason of internal logic, consistency over time or persuasive detail, the Tribunal did not accept the applicant’s claims to have been a Falun Gong practitioner in China and to have been subjected to harm for that reason or to be at risk of harm if he returned to China.
The Tribunal found that the applicant’s Falun Gong activities since arriving in Australia, if indeed he had engaged in them, had been undertaken by him solely for the purpose of strengthening his claim to be a refugee rather than out of any genuine commitment to Falun Gong. Consequently, pursuant to s.91R(3), the Tribunal disregarded them in determining the review.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.RRT did not consider my situation according to law. In RRT decision record para59, RRT considered my Falun Gong activities in Australia including the involvement in Chinese embassy in Canberra. RRT said the law of s91R(3) applies and disregarded it for the reason that the sole purpose of my activities was to strengthen my refugee claims. RRT therefore stated that “S91R(3) of the Act obliges the Tribunal to disregard those activities in determining whether the applicant has a well-founded fear of being persecuted for a convention reason”. In para 61 of the decision record, RRT has made a conclusion that I does not satisfy the criterion of refugee status based on a convention reason. I understand that RRT said I am not a refugee by convention reason. However, when coming into the conclusion that I would not face harm upon returning to China, RRT made an error by not taking into account of me involving in the activities in Chinese embassy in Canberra. RRT should only disregard the facts in terms of assessing whether I am a refugee for convention reason. However, to decide whether I am a person to be owed protection obligation by Australia government, my involvement of Chinese embassy in Canberra should not be disregarded. My involvement in Falun Gong in Australia is not only for purpose of strengthening my claims. Even if my sole purpose is to strengthen my refugee claims (I deny it), a finding should be made on whether the involvement would result in me being harmed by local government in China.
Consideration
In the application, the applicant essentially made two allegations:
a)the Tribunal was wrong to find that his activities outside the Chinese Embassy in Canberra had been engaged in solely to strengthen his claim for protection; and
b)the Tribunal was wrong to disregard that conduct even if its finding as to what motivated him to engage in it was correct.
The first aspect of the application appears to invite the Court to reconsider the factual basis for the Tribunal’s finding that, in the context of the applicant’s claim to have a well-founded fear of persecution in China for a Convention-reason, his conduct outside the Chinese Embassy in Canberra had been undertaken solely to strengthen his claim to be a refugee. To the extent that it did, it must be rejected as the Court is not empowered to undertake a review of the facts found by the Tribunal.
However, the applicant may also be understood to have alleged that the Tribunal erred in law in making the relevant finding. In this connection, I observe that the Tribunal plainly expressed its view that the applicant was not a truthful witness. The factual foundations for that view were summarised earlier in these reasons and provided a legally sufficient basis for that conclusion. Further, based on that adverse view of the applicant’s credibility the Tribunal also found that his activities in Australia had been undertaken solely for the purpose of strengthening his claim to be a refugee. That finding was also open to the Tribunal on the evidence. In such circumstances the Tribunal did not err in concluding that the applicant had engaged in activities outside the Chinese Embassy in Canberra, if indeed he had engaged in them, solely to strengthen his Convention-based claims.
The question whether the Tribunal was right to disregard that conduct, at least in the context of the applicant’s Convention-based claims, is a straightforward one. Section 91R(3) of the Act provides:
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
As the applicant had not satisfied the Tribunal of the matter referred to in para.(b), the Tribunal was obliged to disregard the conduct in question in the context of the applicant’s claim for Convention-related protection.
However, as the Minister very properly pointed out, the Tribunal’s obligation was not limited to considering the risk of Convention-related harm but also Australia’s complementary protection obligations as set out in s.36(2)(aa) of the Act. The manner in which the Tribunal expressed itself satisfies me that it applied s.91R(3) only in the context of the Convention claim and that it did not purport to apply the sub-section in the context of any right which the applicant might have to complementary protection. Relevantly it said:
… the Tribunal is satisfied that the Falun Gong activities in which the applicant has engaged since arriving in Australia, or claims to have been involved in since arriving in Australia, were undertaken by him solely for the purpose of strengthening his claim to be a refugee rather than from any genuine commitment to Falun Gong. Section 91R(3) of the Act obliges the Tribunal to disregard those activities in determining whether the applicant has a well-founded fear of being persecuted for a Convention reason.
The applicant did not claim before the Tribunal that the activities in question independently provided a basis to fear serious harm in China, they were advanced by him as evidence corroborative of his claim to be a genuine Falun Gong adherent. However, if the applicant’s factual allegations were to be accepted and the Tribunal found that he had protested outside the Chinese Embassy, then it raised the possibility of a sur place complementary protection claim to which s.91R(3) would not apply.
The Minister submitted that:
… while it is clear that the Tribunal is not limited only to considering a claim expressly made, it is also not obliged to consider whether any other claim could have been or might have been made, or was available to the applicant; rather, the tribunal’s obligation is to consider a claim that arises “clearly on the materials before it”. While [it] may be correct … that a claim may have been available to the applicant in relation to the claimed activity at the Chinese Embassy, that is not itself sufficient to find that there was a separate claim which arose “clearly on the materials before the Tribunal”.
The reason why it could not be said that in this case the claim that the applicant would face significant harm based on his activities at the Chinese Embassy in Canberra arose clearly from the materials, is that there simply is virtually no material that was before the Tribunal to support any such claim, other than the late made statement by the applicant to the delegate and the photograph, which the delegate described in equivocal terms. The applicant was asked both by the delegate and by the Tribunal if he had anything to add to his (late made) statement that he had been involved in a protest at the Chinese Embassy and he said no on both occasions.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2005) 144 FCR 1 the Full Court of the Federal Court said:
The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it. (at 20 [61])
That statement followed an approving reference to the observations of Merkel J in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28, where his Honour said:
… the RRT is not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented … (at 63)
The Tribunal, although apparently sceptical, did not find as a fact that the applicant had not protested outside the Chinese Embassy. Because the Tribunal did not make a finding to that effect and reject or give no weight to the applicant’s evidence on that issue, that evidence could not be disregarded for all purposes. Relevantly, it raised a case which the applicant did not articulate but which nevertheless arose clearly from the materials before the Tribunal: that if he returned to China he might face significant harm there because of his participation in the protest. The possibility that the applicant’s conduct in Australia might create a risk of harm to him in his country of nationality was a circumstance with which the Tribunal can be expected to have been very familiar, albeit in the context of claims to fear Convention-based persecution. Nevertheless, the possibility also exists in the context of the more recent complementary protection grounds. The possible existence of a sur place claim which would engage Australia’s complementary protection obligations was an issue which, in the circumstances, the Tribunal should have considered.
However, such a claim was not obviously considered by the Tribunal. Indeed, I find that it must not have been considered because, if it had been, the Tribunal would have first had to make a finding or an assumption concerning whether the applicant had conducted himself outside the embassy as he alleged and no such finding or assumption was made.
The failure by the Tribunal to consider the entirety of the case before it amounted to a failure to complete the exercise of its jurisdiction to review and thus jurisdictional error.
Conclusion
As jurisdictional error on the part of the Tribunal has been demonstrated, the matter will be remitted to it to be determined according to law.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 27 September 2013
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