SZTEX v Minister for Immigration
[2014] FCCA 1881
•31 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTEX v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1881 |
| Catchwords: MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no question of principle. |
| Legislation: Migration Act 1958, ss.36, 65, 474 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZTEX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1963 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 31 July 2014 |
| Date of Last Submission: | 31 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,300.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1963 of 2013
| SZTEX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who arrived in Australia on 17 September 2010 on a student guardian visa. On 19 June 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that she feared persecution in China because she was perceived to be a Falun Gong practitioner. On 26 September 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. She 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 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.
For the reasons which follow, the application will be dismissed.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. As summarised by the Tribunal, the applicant relevantly made the following claims:
a)in 2009 she was injured and her injury did not respond to standard treatment so her mother-in-law taught her some Falun Gong exercises to relieve the pain;
b)her mother-in-law had been practising Falun Gong for some years and had been detained in 2005 and 2007. For that reason she was reluctant to undertake the exercises but her mother-in-law told her that they were just another form of “qigong” exercise and they helped with her pain;
c)her mother-in-law thought that she had accepted Falun Gong and on 23 May 2009 invited four female Falun Gong practitioners to her home. Her mother-in-law said that the women were there to teach her the exercises but in reality they were there to persuade her to join Falun Gong. Coincidentally, two police officers and two community officers attended her home that day and took them all to the police station. Two of the women were sentenced to two years re-education through labour, her mother-in-law was sentenced to one year and she was detained for fifteen days;
d)after her release her employer imposed some sanctions on her. She had to report to the police once a fortnight and did so from the time of her release in June 2009 until a week before her departure for Australia in September 2010. She also had to write self-examination reports and if they did not satisfy the police, they abused and beat her;
e)she had tried to explain to the police that she was not a Falun Gong practitioner and that she had only undertaken the exercises for a short time as a pain management strategy but they did not believe her;
f)she had decided to leave China because of the restrictions on her freedom and because she feared that she would be sent for re-education through labour;
g)her passport was issued on 15 April 2010 and she obtained it by paying RMB7,000 or RMB8,000 to a distant relative who worked for the Public Security Bureau. She had had to pay someone to obtain a passport because she had been issued with a “detention certificate” following her detention and could not do it herself. The distant relative had also obtained an agent for her and she had paid the agent RMB11,000 for her daughter’s student visa and RMB7,000 for her own guardian visa;
h)she had not left China until September 2010 because it had taken her some time to obtain a passport and to arrange her daughter’s study in Australia. She had not applied for another class of visa which was easier and quicker to obtain because her agent had only told her about the student guardian visa;
i)she had been able to depart China using travel documents issued in her name because detention was different from a sentence in that it was more local;
j)her daughter had returned to China for a two month visit in February 2011. She had not accompanied her daughter because her husband had instituted divorce proceedings as a result of harassment he faced from the police who continually asked about her whereabouts and when she would return to China. Her daughter had stayed with her father (the applicant’s husband) and his parents and had not had any difficulty entering or departing China or any trouble while she was there;
k)she had allowed her daughter to stay with her mother-in-law because they had missed each other and because there was no danger to her as she was a student and had not participated in any Falun Gong activities;
l)she had not sought protection earlier because when she first arrived in Australia she did not speak English, had not known that she could seek protection and had been told by a friend that there was nothing she could do while her guardian visa was valid. She had attended the Department on two occasions, on the first occasion she wanted to gain a work permit and had spoken to a Chinese speaking departmental officer. On the second occasion she had wanted to obtain another student guardian visa but was told that when her daughter turned eighteen she (the applicant) would have to return to China. She had then told the departmental officer that she had undertaken some Falun Gong exercises in China and had been persecuted and the officer had told her she could seek protection;
m)she had left her “detention certificate” in China because she could not have risked passing through customs with it. The delegate had asked her about it at her interview but she had not obtained it from China since then because her husband had already started divorce proceedings and no longer cared for her and her sisters lived in a different city so they could not send it to her. Her mother-in-law would not have dared to send it because she was a Falun Gong practitioner and her daughter had been afraid to bring it with her after her visit;
n)she had not asked her mother-in-law to send evidence of the latter’s arrests and detention because she was old, had been arrested more than once and she did not want to burden her;
o)she had obtained the police clearance she had used in support of her student guardian visa application though some connections at her local police station. The police clearance certificate was accurate because she did not have a criminal record, she had just been accused of being a Falun Gong practitioner;
p)if she returned to China she would not be able to have a job or a family and she would be in danger; and
q)she was not a Falun Gong practitioner and had had no further involvement with Falun Gong since the exercises with her mother-in-law. She had not practised in Australian and was not interested in practising if she returned to China. However, her personal safety was at threat because Falun Gong was forbidden in China and her mother-in-law was a practitioner.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal 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 s.36(2)(aa) of the Act. The Tribunal found that the applicant was not a truthful witness and that she had fabricated her claims in order to extend her stay in Australia. It did not accept her claims to have been perceived to be a Falun Gong practitioner, to have been detained or otherwise to have been the subject of adverse interest for that reason. In reaching those findings the Tribunal:
a)noted that the applicant had not provided any documentation to corroborate her claims that she and her mother-in-law had been arrested and detained, in the case of her mother-in-law, on three occasions. The Tribunal found that although at her departmental interview the delegate put her on notice of the relevance and significance of her detention certificate, the applicant had made no attempt to obtain it from China and it did not consider persuasive her explanations for not having done so. The Tribunal concluded that the applicant had fabricated her claim to have been arrested and that her claimed evidence of a detention certificate was false and intended solely to strengthen her protection claims;
b)noted that the applicant had been able to obtain a passport in her own name and depart China on that passport without difficulty despite her claims to have been arrested in the company of five Falun Gong practitioners, three of whom had serious sentences imposed on them, and to have been placed on strict reporting conditions. It further noted that the applicant had obtained her passport while all the others had still been in detention and had left China while two of them had still been in detention. The Tribunal found that the applicant’s ability to obtain a passport and to depart on it through security at the airport in those circumstances was contrary to independent country information. It found that it was more likely that the applicant had been able to do that because she was of no adverse interest to the Chinese authorities, which was consistent with her not having had her identity documents confiscated at the time of her alleged arrest and not having been refused a passport;
c)noted that there was no evidence other than her own which supported the applicant’s claim that she had obtained her passport through connections and the payment of money;
d)did not accept that the police would have issued the applicant with the clearance she had provided with her student guardian visa application if she had been arrested for the serious offence of being involved in Falun Gong activities, had been subject to reporting conditions and had been issued a detention certificate. The Tribunal did not reach a conclusion about whether the police clearance was genuine but it was satisfied that it would not have been issued if the applicant’s claims were true;
e)found that the applicant’s delay in leaving China indicated a lack of fear on her part. The Tribunal noted that the applicant had left China fifteen months after her release and it found that the steps she had taken over that period had been orderly and gave the appearance of planning and preparation, not haste and fear. It found that the applicant had applied for a student visa for her daughter and a student guardian visa for herself because she had wanted her daughter to study in Australia and had wished to accompany and care for her;
f)found that the applicant’s delay in seeking protection in Australia was inconsistent with a genuine fear of persecution. In this connection, the Tribunal noted that the applicant had lodged her protection visa application about a month and a half before her student guardian visa had expired. The Tribunal did not accept the applicant’s explanations for the delay and found that there was no reason she could not have asked about a protection visa or revealed to the Department her fear of returning to China at an earlier date. It found that the applicant had only enquired about a protection visa because she wished to remain in Australia while her daughter continued her studies and had been unable to access any other form of visa. The Tribunal did not accept that she had lodged her protection visa application because she had a fear of harm in China for any reason; and
g)noted that the applicant had allowed her daughter to travel back to China and stay with her father, who had been harassed by the police, and paternal grandmother, a known Falun Gong practitioner who had been detained three times and was the cause of the applicant’s trouble with the authorities. It found that such behaviour was inconsistent with the applicant’s claims and did not accept that she would have allowed her daughter to return to China for such a visit if the events which she claimed had occurred had occurred. The Tribunal was satisfied that the applicant had been confident that allowing her daughter to visit her father and grandmother would not result in harm.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.Jurisdictional error has bee [sic] made. They doubt my claim without substantive evidence and reach mistaken conclusion. Just because I could not provide detention certificate, RRT believes I was not persecuted in China.
2.RRT considered my case unfairly and some of my claims are ignored. RRT does not fully consider my situation and risk to me if I return to China.
At the hearing of this application the applicant additionally alleged that the Tribunal’s decision was unfair and that it had made mistakes in its reasoning.
Ground 1
The allegation that the Tribunal erred because it did not have substantive evidence to reach a decision adverse to the applicant misunderstands the process of the Tribunal’s review and the task entrusted to it under the Act. The role of the Tribunal in a review such as the applicant’s is to determine whether or not it is satisfied that the applicant in question has met the criteria for the grant of a protection visa. That is to say, it must be positively satisfied that the criteria have been met before it can set aside the delegate’s antecedent refusal: s.65 of the Act. The Tribunal does not need to be seized of evidence which disproves an applicant’s claims before it can conclude that it is not satisfied that an applicant has met the criteria for the grant of a protection visa. Consequently, the first element of the first ground of the application does not disclose error on the Tribunal’s part.
The second element of the first ground of the application implied that the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa because she had not provided to it the detention certificate which she said had been issued to her when she was arrested in the company of her mother-in-law and other female Falun Gong practitioners. However, as the Minister pointed out in his oral submissions at the hearing of this application, the Tribunal based its conclusion on many more matters than the applicant’s failure to produce the detention certificate. It is not necessary to set those out as they have been included in the summary of the Tribunal’s decision given earlier in these reasons.
The third element of the first ground of the application was that the Tribunal reached a mistaken conclusion. This element of the first ground was really no more than a challenge to the Tribunal’s findings on the merits of the review before it. As indicated earlier in these reasons, the Court’s role is not to rehear the applicant’s application for a visa. Consequently, a ground based on a disagreement with the Tribunal’s findings on the merits of the review cannot be the basis for a finding of jurisdictional error on the Tribunal’s part.
For these reasons, the first ground of the application does not disclose a basis upon which the Tribunal’s decision should be set aside.
Ground 2
The first element of the second ground of the application was that the Tribunal failed to consider all the applicant’s claims. The applicant did not identify which of her claims had been ignored by the Tribunal. In those circumstances, this aspect of the allegation lacks meaningful substance. In any event, it is not apparent that the Tribunal failed to consider any substantive allegation made by the applicant.
In the second ground of the application, the applicant further alleged that the Tribunal had not considered her situation and the risk to her were she to return to China. Again, the applicant did not identify what aspects of her situation the Tribunal had not considered and I am not persuaded that it did overlook any of the matters which she wished it to consider. The Tribunal considered the applicant’s claims on the evidence that she had adduced and went on to conclude in paras.47 and 48 of its reasons that she would not suffer harm in China for a Convention reason or harm of a sort which would engage Australia’s complementary protection obligations.
The final element of the second ground of the application was that the Tribunal had considered the applicant’s case unfairly. This may be a challenge to the correctness of the Tribunal’s factual findings, in which case, it is an invitation to the Court to substitute its own view of the facts for that of the Tribunal, something which it is not empowered to do. The Court’s role is limited to determining whether the Tribunal committed the sorts of legal errors which amount to jurisdictional error and it is the role of the Tribunal to make factual findings within a lawful framework. If the Tribunal does not make legal errors of the sort amounting to jurisdictional error then it is free to make such factual findings as are open to it on the evidence, untrammelled by the Court’s views on those issues.
It may be that this final element of the second ground of the application suggested bias on the part of the Tribunal or a failure to conduct a bona fide review. Allegations of bias must be made distinctly and proved clearly, neither of which has occurred in this case, and the Court should not decide a case based on an inference that bias is alleged. In any event, the Tribunal’s decision does not support a conclusion that it entered into the review with a mind predisposed to a conclusion or that it conducted itself during its hearing in such a way as to make a reasonable observer apprehend that it was not approaching the review with an open mind.
Further, the Tribunal’s comprehensive recitation of the facts adduced by the applicant and its consideration of those facts satisfies me that it conducted an independent and fresh consideration of the issues presented to it and thus conducted a bona fide review and discharged its obligations to the applicant in this connection. For these reasons, the second ground of the application discloses no basis upon which the Tribunal’s decision should be set aside.
Ground 3
At the hearing of this application, the applicant alleged that the Tribunal had made an unfair decision because it had not believed her, even though she had been telling the truth. Proceedings such as the present are not concerned with the subjective fairness of an administrative decision-maker’s decision, but with whether the process by which the decision-maker reached that decision was fair. That is to say, the issue is whether the decision has been reached in a procedurally fair manner and not whether the result was fair.
Alternatively, this allegation may be an assertion that the Tribunal should have reached a decision on the facts different from the one which it reached. For the reasons already given, this does not provide a basis to set the Tribunal’s decision aside.
Ground 4
The second matter raised by the applicant at the hearing of this application was that the Tribunal made mistakes in its reasoning. The applicant made no allegations of illogicality on the part of the Tribunal and none are apparent. Again, to the extent that this is a challenge to the Tribunal’s fact finding or to its conclusion on the merits of the review application before it, neither of those matters raises an issue which would ground a finding of jurisdictional error on the Tribunal’s part.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 25 August 2014
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