SZTTM v Minister for Immigration

[2015] FCCA 464

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 464

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Legislation:  

Migration Act 1958 (Cth), s.91R

Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

Applicant: SZTTM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 41 of 2014

Judgment of: Judge Barnes

Hearing date: 19 February 2015

Delivered at: Sydney

Delivered on: 19 February 2015

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,000. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG41 of 2014

SZTTM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 9 December 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant is a citizen of the People’s Republic of China.  She arrived in Australia in January 2013 on a tourist visa.  She applied for a protection visa in January 2013.  She was invited to attend an interview with the delegate, but did not do so.  The delegate refused her application.  She sought review by the Tribunal.  She attended a Tribunal hearing.  The Tribunal affirmed the delegate’s decision.  

3. The Applicant’s claims in the statement accompanying her protection visa application and that the Tribunal recorded were made at the Tribunal hearing, were that she was a Falun Gong practitioner.  Relevantly, in her written statement she claimed that in June 2002, while practising Falun Gong with other practitioners in a city square, she was arrested and taken to a detention centre.  She claimed that she and other detainees were beaten and that she was forced to sign an undertaking to renounce Falun Gong.  She claimed she was released after three months. 

4. The Applicant claimed that she then moved to another part of China where she became friends with a Falun Gong leader, but the government started a crackdown on Falun Gong, and her friend, who had sought justice for the organisation, subsequently disappeared.  In her written statement she claimed this occurred in December 2012.  She claimed she left China after her friend’s disappearance, fearing that she would meet a similar fate. 

5. For reasons which it gave, the Tribunal found that the Applicant was not a Falun Gong practitioner in China, that she was not arrested in 2002, and that she was not adversely regarded by the Chinese authorities.  It did not accept that she practised Falun Gong in Australia, as she claimed at the hearing.  It found that she had no genuine commitment to Falun Gong and that were she to return to China, she would have no reason to practise Falun Gong and therefore would not be at risk of harm for any reason related to Falun Gong. 

6. The Tribunal reached these findings having regard to a number of factors.  In particular, it had regard to inconsistencies between the Applicant’s written claims in her statement provided to the Department with her protection visa application and her oral evidence at the Tribunal hearing regarding the timing of two key events – the month in which she was arrested in 2002 and when she lost contact with her friend in 2012.  The Tribunal explained its concerns.  It addressed the Applicant’s explanations that the contradictions were due to nervousness or that she could not remember.  The Tribunal did not accept such explanations given that at the hearing the Applicant had explained coherently the basis for her oral claim that she was arrested in September 2002 and that her oral evidence that November 2012 was when she allegedly lost contact with her friend was quite unequivocal (she had claimed at the hearing that she had been unable to reach her friend on 12 November 2012).  It noted that it was not claimed that the Applicant was nervous when she prepared her written statement.  She had done so with the assistance of a migration agent.  The statement was prepared in Chinese, signed by her and translated by a qualified translator. 

7. The Tribunal also found that the Applicant’s claim that she was able to practice Falun Gong openly in a city square without any problems prior to her arrest in 2002 was implausible, having regard to the fact that Falun Gong had been banned by the Chinese authorities since July 1999. 

8. In addition, the Tribunal found that the Applicant’s knowledge of Falun Gong history and philosophy was deficient.  It recorded that at the hearing she had said that she had “no idea” when Falun Gong was formally banned and had suggested that the government had suppressed details of this event.  The Tribunal had regard to the fact that such details were well publicised.  It found that it would expect any genuine Falun Gong practitioner in China to have been aware of this information. 

9. The Tribunal also had regard to the fact that the Applicant had incorrectly described the place at which the major demonstration which preceded the banning of Falun Gong had occurred.  She had also incorrectly claimed that practitioners had burned themselves at that demonstration. 

10. In addition, the Tribunal recorded that the Applicant said she had no other evidence to support her claim to be a practitioner of Falun Gong, and had regard to the fact that when she was asked what she knew about Falun Gong, its history and philosophy, her reply was “nothing”.  The Tribunal found that it would expect a genuine Falun Gong practitioner to be able to articulate key concepts of Falin Gong.  It referred to independent information in that respect. 

11. Given that the Applicant could not tell the Tribunal anything about the history and philosophy of Falun Gong, the claim that she practised publically at a time when such practice was banned, and her contradictory accounts about the timing of two key events, the Tribunal did not accept that she had presented a true account of her circumstances.

12. Having found that the Applicant did not meet the Refugees Convention criterion, the Tribunal addressed the complementary protection criterion.  It observed that the Applicant had made no claims other than those relating to Falun Gong.  As it had disbelieved all those claims, the Tribunal was not satisfied that the Applicant met the complementary protection criterion.  

13. The Applicant sought review by application filed in this Court on 8 January 2014.  She did not take the opportunity to file any amended application, supporting affidavit evidence or written submissions. 

14. The first three grounds in the application do no more than repeat factual claims previously made by the Applicant in support of her protection visa application.  I gave her the opportunity to explain how these claims went to demonstrate any jurisdictional error on the part of the Tribunal.  She was not able to provide any explanation.  These factual claims do not assert or demonstrate any jurisdictional error.  In that respect I note that the Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave. 

15. Insofar as the Applicant’s reiteration of her claims might be seen as invoking some notion of irrationality, illogicality or unreasonableness, this is not a case in which the Tribunal decision was irrational, illogical, not based on findings or inferences of facts supported by logical grounds, or such as to amount to unreasonableness sufficient to give rise to jurisdictional error, in the sense considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16. Grounds one to three do not establish jurisdictional error.

16. Ground four is that the Tribunal had “bias against” the Applicant and failed to take all her claims and evidence into account according to s.91R of the Migration Act 1958 (Cth). I have considered this as a composite ground and also the separate components of the ground.

17. First, insofar as there is a complaint that the Tribunal was biased, neither actual nor apprehended bias is established.  Allegations of bias must be distinctly made and clearly proved.  In other words, such claims should be supported by probative evidence as discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (at [69] and [127]). There are no particulars to this ground. There is no evidence before the Court relevant to such a claim, other than the Tribunal reasons for decision. It is a rare and exceptional case in which actual bias can be demonstrated solely from the published reasons for decision. There is nothing in the Tribunal’s reasons for decision indicating that its mind was not open to persuasion or that it had adopted a closed mind. The mere fact of the adverse findings is not of itself such as to give rise to an inference of bias.

18. The Tribunal is entitled to assess the evidence before it, to make a credibility finding and to attach such weight to the evidence as it regards appropriate.  Actual bias is not made out.  

19. Nor is apprehended bias established.  There is nothing on the face of the Tribunal’s decision that would cause a fair minded lay observer to reasonably apprehend that the Tribunal member did not bring an impartial mind to the proceedings (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [27] – [32]).

20. Insofar as the Applicant intended to allege that bias was apparent because the Tribunal failed to take all her claims and evidence into account, I gave her the opportunity today to explain what claims were not taken into account.  She was not able to elaborate.  Rather she appeared to acknowledge that she had not been able to provide supporting evidence to the Tribunal. 

21. As indicated, the Tribunal’s credibility findings were open to it.  There is nothing on the material before the Court to indicate that any claims or relevant evidence were not taken into account or to support any claims of actual or apprehended bias in the manner in which the Tribunal dealt with the Applicant’s claims on the limited evidence before it.  The fact that the Tribunal did not believe the Applicant’s claims is not in itself sufficient to establish bias. 

22. More generally, the contention that the Tribunal failed to consider all the Applicant’s claims (in the sense of integers of the claims) and evidence is not made out.  In considering whether the Tribunal failed in its statutory task to review by failing to consider a claim or evidence I have had regard to the Tribunal’s reasons for decision (see Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362 at 380; [2010] FCAFC 108). The Tribunal set out the claims made by the Applicant in her written statement to the Department and what occurred at the hearing. The only evidence in that respect is the Tribunal’s account. It referred in that context to issues it put to the Applicant and to her responses. Its reasons reveal that the Tribunal considered the claims made by the Applicant, the Applicant’s explanations for inconsistencies and other concerns raised by the Tribunal. There is nothing to support the claim that the Tribunal failed to consider any integer of the Applicant’s claims or failed to take any evidence into account in a manner constituting jurisdictional error. Nor has any evidence been identified which was not considered by the Tribunal. This ground is not made out.

23. As none of the grounds relied on by the Applicant has been established, the application must be dismissed.  Before I make the orders, I will hear submissions in relation to costs. 

24. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $4,000.  The Applicant indicated that she did not have that much money right now.  However the Applicant’s lack of funds is not a sufficient reason to depart from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  It may be a circumstance to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  4 March 2015