SZSQR v Minister for Immigration

[2014] FCCA 1277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1277

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal biased – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 65

Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425

Applicant: SZSQR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 487 of 2013

Judgment of: Judge Raphael

Hearing date: 28 May 2014

Date of Last Submission: 28 May 2014

Delivered at: Sydney

Delivered on: 28 May 2014

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 487 of 2013

SZSQR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on or about 19 November 2011. On 6 December 2011 she made an application for a Protection (Class XA) visa under s.65 of the Migration Act1958 (Cth).[1]  On 22 June 2012 a delegate of the Minister refused to grant a protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant appeared before the Tribunal to give evidence and present arguments.  On 5 February 2013 the Tribunal determined to confirm the decision under review.

   [1] The Act.

2. The applicant’s grounds for claiming that she was a person to whom Australia owed protection obligations arose out of her adherence to the Falun Gong philosophy.  She claimed that she had been a regular Falun Gong practitioner in China since about 2002.  But in June 2011, when she was two months pregnant, the local business administration bureau came into her shop for a random inspection and found a small Falun wheel in a drawer.  They then took her to her home, carried out further inspections and found other Falun Gong material.  She was taken to the local police station, threatened and slapped, and then sent to a corrective centre and a mental hospital.  She claimed she had been brainwashed, was repeatedly stunned and, as a result, underwent a miscarriage.  After about three weeks in the centre, she claims that she was required to sign an undertaking that she would not take part in any further Falun Gong activity, and was then released on payment of a penalty, but had to report to the police every month.

3. The Tribunal questioned the applicant upon her story and raised with her some concerns that it had.  It also questioned her upon her knowledge of the Falun Gong philosophy and her taking part in Falun Gong activity since her arrival in Australia.  The Tribunal raised with the applicant why she had not claimed protection until the day that her tourist visa had expired.

4. In its findings and reasons, the Tribunal concluded:

   “The Tribunal finds that the applicant is not a truthful witness and that she has fabricated her claims to Australia’s protection.  The Tribunal does not accept the applicant’s claim to have been a Falun Gong practitioner in China or to have experienced or to be at risk of persecution for that reason.” [85] [CB 102]

   The Tribunal then continues at [86] to set out its reasons for coming to that conclusion.  It firstly noted that for the first time at the Tribunal, the applicant raised four significant and relevant new claims, which are referred to at [86(a)(i)-(iv)].  It then describes what it calls “discrepancies, contradictions and inconsistencies” in the applicant’s claims and sets those out at [86(b)(i) to (iv)].  The Tribunal details what it describes as “the inherent illogicalities of some of the applicant’s claims” at [86(c)(i) to (iv)].  At [86(d)(i) to (xi)] it refers to the lack of documentary or any corroboration for the claims that the applicant made, and finally at [86(e)] it deals with what it describes as “the superficiality of the applicant’s familiarity with and knowledge of Falun Gong, despite her claim to have practiced Falun Gong frequently and regularly since 2005”.  These matters are set out at [86(e)(i) to (vii)].

5. At [90] the Tribunal concludes:

   “The Tribunal finds that the applicant is not now, in Australia, a genuine Falun Gong practitioner and makes this finding on the basis of the applicant’s evident lack of knowledge of Falun Gong philosophy and practice commensurate with her claimed length of practice, the lack of detail, enthusiasm or spontaneity in describing her knowledge and practice of Falun Gong to the Tribunal, the fact that her responses had to be elicited with repetition and prompting, and the lack of any corroboration of having undertaken Falun Gong practice since arriving in Australia, particularly since she claims to possess photographic corroboration but has not, as at the date of this decision, provided it.  The Tribunal is satisfied that if the applicant engages in Falun Gong in Australia since her arrival, and there is no evidence that she has, she does so solely to strengthen her protection claims and to advance her migration intentions, and not from any genuine adherence to the philosophy of Falun Gong.” [90] [CB 105]

6. The Tribunal also considered the applicant’s claims under the heading of complementary protection in accordance with s.36(2)(aa) of the Act, and concluded that she was not a person to whom Australia had protection obligations thereunder. Although the Tribunal does not say so, one can only assume that the reason for this was that it did not accept that she was a Falun Gong practitioner and, therefore, there was no reason why, should she return to China, she would be liable to any form of persecution, whether Convention-related or not.

7. On 12 March 2013 the applicant filed with this court an application seeking judicial review of the Tribunal’s decision.  There were two grounds of the application which, the applicant admitted in evidence, had been written for her by a friend.  They were, firstly:

   “The applicant claims that the Tribunal’s decision was affected by judicial error in failing to accept the applicant’s refugee claims.  The applicant has been persecuted by the Chinese government due to her Falun Gong practice.”

   As Ms Jones points out in her helpful written submissions, this does not constitute an indication of a jurisdictional error.  Rather, it is a rehearsal of the claim made by the applicant before the Tribunal.  There is no jurisdictional error in not accepting an applicant’s claims.

8. The second ground of application is:

   “The applicant claims that she has been practicing Falun Gong since 2005 and has knowledge of Falun Gong.  The Tribunal’ finding that her knowledge of and familiarity with Falun Gong is superficial is a subjective finding.  The Tribunal failed to consider the applicant had only 9 years of schooling and her ability to understand Falun Gong theories is limited by her education level.”

   The finding made by the Tribunal is one that was open to it on the available evidence, namely, the applicant’s responses to the Tribunal’s questions.  The complaint made about the Tribunal’s failure to consider the applicant’s education level is, in effect, a claim for merits review of the Tribunal’s decision.  But whatever it might be, it is no more than an allegation.  Neither the author of the ground nor the applicant herself have provided the court with any basis upon which it could agree with that submission.  The court does not know what went through the Tribunal’s mind when she was considering the applicant’s claims, other than what is in the decision record.  That record notes that the applicant completed nine years of education in China, but does not give any detail of any university, trade or qualifications obtained.  This ground does not constitute a jurisdictional error and cannot be maintained.

9. The applicant appeared before the court today.  She told that she felt that the member had kept staring at her and had made her nervous.  She said because of the way the applicant stared at her, she was reminded of the way in which she had been treated by government officials in China, and that made her very nervous and unable to speak normally.  The court heard this evidence from the applicant in the witness box.  She was cross-examined by Ms Jones.  She confirmed to Ms Jones that she did not discuss these complaints about the Tribunal’s treatment of her with the friend who authored the application.  Neither did she discuss it with the Tribunal member at the hearing.  In response to a question from the court, she confirmed that she did not mention this matter to her migration agent after the hearing.  She told the court that she was a true Falun Gong practitioner, and that she was here for the purposes of proving that.

10. In the light of the evidence discussed above, it will be difficult in the extreme for the court to come to a conclusion that the Tribunal acted in a way that could constitute actual bias in the manner in which it treated the applicant.  As the High Court said in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 [30]:

    “Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.”

11. Whilst it is very possible that the applicant did feel rather intimidated at the hearing, there is nothing in the decision record that indicates that she was overborne by the manner in which she was questioned by the Tribunal.  She had an opportunity to provide the court with a transcript of the Tribunal hearing, but did not do so.  For these reasons, the court cannot take her evidence concerning the conduct of the Tribunal member any further.

12. It follows from the above that the application must be dismissed.  And the applicant shall pay the respondents’ costs, which are assessed in the sum of $4,500.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  17 June 2014