SZUHG v Minister for Immigration

[2015] FCCA 663

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 663

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – whether Tribunal failed to accord the applicant procedural fairness – whether the Tribunal failed to consider a claim – possible allegation of bias – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 476

Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant: SZUHG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1187 of 2014

Judgment of: Judge Nicholls

Hearing date: 2 March 2015

Date of Last Submission: 2 March 2015

Delivered at: Sydney

Delivered on: 2 March 2015

REPRESENTATION

Applicant: In Person

Solicitor for the Respondents: Ms A Wong of DLA Piper Australia

ORDERS

1. The application made on 1 May 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1187 of 2014

SZUHG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 1 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 April 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed by the Minister in these proceedings (“the Court Book” – “CB”). The following background is relevant.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 6 March 2013 (CB 13). He applied for a protection visa on 30 May 2013 (CB 1 to CB 25). He was assisted by a registered migration agent in this application (CB 9 and CB 26).

2. The applicant’s claims to protection were initially set out in a “Personal Statement” provided to the Department on 30 May 2013 (CB 31 to CB 33). The applicant claimed to be a Falun Gong practitioner. He claimed to have commenced practicing in 1999.

3. In this statement, the applicant claimed that he was “caught practicing” Falun Gong and was sent to a “labor camp” where he was “bullied”, “abused” and “beaten violently” for one and a half months (CB 31 to CB 32). He was released after he signed a “promise letter” not to practice Falun Gong.

4. The applicant stated that he continued to “secretly” practice at home. The applicant travelled to Japan in 2007 and met with a Falun Gong organisation there (CB 32). He claimed that he sent materials back to China, and that his wife was “sent to [the] police station and interrogated” about his activities in Japan. He claimed that he did not return to China until 2010 because he feared that he would be harmed if he returned.

5. The applicant claimed that following his return to China he continued to practice in his home. Further, in 2012 he joined other practitioners in Beijing where he claimed that he saw “plain-cloth men” arresting and beating people, and that he was detained for one month (CB 33). The applicant claimed that following his return to his hometown, he and his family were harassed by the authorities. Therefore, he decided to leave China with the assistance of a friend in Australia who helped him obtain a visa (CB 33).

6. After his arrival in Australia, the applicant claimed to have practiced Falun Gong on some five or six occasions.

7. The delegate refused the application for the visa on 11 December 2013. The delegate found that the applicant was “not a truthful witness” and that he was not a Falun Gong practitioner (CB 47).

The Tribunal

1. The applicant applied for review to the Tribunal of the delegate’s decision on 8 January 2014 (CB 53 to CB 57). He attended a hearing before the Tribunal on 1 April 2014 (CB 68 to CB 69). The Tribunal affirmed the decision of the delegate on 2 April 2014.

2. The Tribunal was “not satisfied” that the applicant was a “truthful witness” and found that he had “fabricated the totality of his claims to fear harm in China” ([12] at CB 80).

3. The Tribunal found that the applicant’s knowledge of Falun Gong was “extremely limited and not consistent with his claims to have been a genuine Falun Gong practitioner since 1999” ([13] at CB 80). Further, the Tribunal did not accept the applicant’s claim to have fled China for South Korea in 2001, a claim that he first made before the delegate, and then fled to Japan in 2007 because of his fear of harm ([18] at CB 82 to [22] at CB 83). The Tribunal found that the applicant’s own evidence indicated that he returned to China three times ([21] at CB 83). The Tribunal was ([23] at CB 83 to CB 84):

   “…not satisfied that the applicant’s return to China… or his failure to make any inquiries or consider options for protection in either Japan or South Korea after he left China is consistent with his claims to have fled China for South Korea and Japan because of his fear of harm arising from his practice of Falun Gong.”

4. In all, the Tribunal did not accept that the applicant was, in the past or at the time of the consideration, a Falun Gong practitioner ([22] at CB 83). It did not accept that the applicant was arrested or detained “at any time in relation to his practice of Falun Gong” ([24] at CB 83). It disregarded his claim to fear persecution on return to China because of his conduct in Australia, pursuant to s.91R(3) of the Act ([23] at CB 83). In essence, the Tribunal found that while he may have engaged in this limited practice, he did so in order to learn about Falun Gong and that this was done for the sole purpose of strengthening his claims to be a refugee. It did not accept that the applicant would seek to practice Falun Gong on return to China ([24] at CB 83).

5. It separately considered his claims to have practiced Falun Gong in Australia under the complementary protection criterion (s.36(2)(aa) of the Act). However, it found that his involvement was to a “limited extent” and did not accept that his involvement was known to the Chinese authorities ([26] at CB 84). Therefore, the Tribunal was not satisfied that the applicant would suffer significant harm on return to China.

Application Before the Court

1. The application before the Court contained three numbered paragraphs. It is not clear what particular legal error is being asserted. They are in the following terms:

   “1. RRT did not review the risk that I would be persecuted by Chinese government carefully. I have a genuine fear of harm if I return to China. I have been truthful in my account to the Department and to the Tribunal. I am a Falun Gong practitioner; I practiced Falun Gong since I was in China and therefore there is high chance of harm if I return to China.

   2. The Tribunal unfairly reviewed my case. The evidences that I provided in the interview and hearing were true. Though I did not mention that I went to Korea in 2001 because I had joined Falun Gong in 1999 and I had been monitored by the Chinese government and discriminated against in my employment, it is not contradict to my previous evidences. The reasons that I did not apply protection visa after I went to Korea and Japan were I went to strange countries; the language and culture were different. I did not know for my situation I can apply refugee visa. If I knew, I would apply for sure since there was no need for several years of wandering life. With the fear of being troublesome, I went back to my family. Because I miss my wife and son so much, I return to China on 2 occasions. RRT did not accept my explanations. RRT thought that I failed to make any attempts to lodge an application for protection, so my claim to have fled China to those places was false. Such conclusion is incorrect and unfair. (Para. 19-21)

   3. RRT has denied me of procedural fairness by failing to provide adequate reasons for the finding of a fact. In Para 23, “The Tribunal does not accept that he attempted to learn about…for the sole purpose of strengthening his claims to be a refugee.” This finding is not only without foundation but also a poor reflection of mind of prejudgment and negativity. RRT should not speculate and make conclusion based on no evidences. RRT should be imposed an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will. Therefore, I find the RRT’s decision is not made properly and legitimately.”

2. I will return to those grounds in a moment.

Before the Court

1. The applicant appeared before the Court in person and was assisted by an interpreter in the Mandarin language.

2. At previous Court events orders had been made giving him the opportunity to file any amended application or evidence by way of affidavit in support of his application. Nothing further has been filed. The Minister has filed written submissions.

Consideration

1. Today, when given the opportunity to address the Court, the applicant said that he did not have “much to say”.  When pressed, the applicant said that he still had a relative in prison in China “because of Falun Gong”. That is, the relative’s Falun Gong practice. In all, I could not see that that statement was linked to any of the grounds of the application, and nor is it clear that any such claim was made in that form, before the Tribunal.

2. In any event, it is not clear, and nor was it made clear, how the situation involving the applicant’s relative could be said to assist in any way in revealing legal error on the part of the Tribunal. Having regard to the evidence before the Court, the Tribunal considered all of the applicant’s claims to fear harm as variously made. I cannot see that it failed to consider any claim, or any integer, or part, of a claim. The Tribunal’s findings in relation to each of the applicant’s claims, which informed its ultimate conclusion, were reasonably open to the Tribunal to make on what was before it.

3. I note in particular that the Tribunal’s adverse finding as to the applicant’s credibility was a finding within the exercise of its jurisdiction, given that the Tribunal is the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405).

4. Nonetheless, I do turn to consider each of the grounds of the application, to consider whether any jurisdictional error can be said to arise. I note also that I did ask the applicant today whether he had sought any legal advice in relation to his matter. The applicant replied that he had spoken to “someone” who worked in a lawyer’s office about a month ago.  I am satisfied that the applicant has had a reasonable opportunity to seek legal advice. However, I note in any event, it is the case that the applicant is not necessarily entitled to any legal representation before the Court (Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702).

5. The first ground of the application alleges that the Tribunal did not consider the risk that the applicant claimed to fear harm on return to China “carefully”. The remainder of the ground is a repetition of his claims to fear harm in China as a result of his Falun Gong practice. In essence, the thrust of the first ground is that the applicant asserts that he was truthful before the Tribunal in his account of what he said had occurred in China.

6. As stated above, a failure to consider a claim can lead to jurisdictional error (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317).

7. However, on a fair, if not plain, reading of the Tribunal’s decision record, it is the case that the Tribunal did consider all of the applicant’s claims, expressly made or clearly arising, in the circumstances. The Tribunal addressed all matters of substance raised by the applicant. However, it did not believe the truthfulness of those claims.

8. The applicant seeks to take issue with the Tribunal’s findings of fact. I note that a finding of adverse credibility against the applicant is a finding of fact. The Tribunal’s findings which informed its finding on the applicant’s credibility, were reasonably open to it on what was before it. The Tribunal gave reasons for its findings which were probative of the material before it. In all, ground one does not reveal any legal error on the part of the Tribunal.

9. The second ground of the application focuses on the Tribunal’s findings in relation to the applicant’s previous travel to, and stays in, South Korea and Japan. The applicant appears to take issue with the Tribunal’s statement at [19] (at CB 82), and also [20] (at CB 82) to  [21] (at CB 83) of its decision record, where the Tribunal found that he would have included in his initial statement, which was drafted with the assistance of a registered migration agent, the claim that he had left China for South Korea due to “discrimination”, and his fear relating to his practice of Falun Gong.

10. Before the Tribunal, the applicant claimed that he left China (on one occasion) in 2001, for Korea because he had come to the attention of the Chinese authorities, who monitored his activities and “discriminated” against him in his employment.

11. The Tribunal accepted that the applicant told the delegate about these matters.  However, it found it of significance that this was not mentioned in the initial detailed statement accompanying his application, which had been prepared with the assistance of a registered migration agent.

12. While the Tribunal did consider this in its analysis, its finding that the applicant had not “fled” to South Korea, or Japan, because of a fear of harm arising from his practice of Falun Gong did not, on any fair reading, turn on when the applicant first mentioned this matter. The Tribunal considered the applicant’s claims, as repeated in his ground. Its conclusion that it did not believe the applicant’s claims, as stated above, was reasonably open to it on what was before it.

13. In these circumstances, the applicant seeks that the Court engage in impermissible merits review of the finding of the Tribunal as to this matter (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259). As I said to the applicant earlier today, the Court has no power to consider his claims to protection and to grant him a protection visa. That is, the Court has no power to consider his claims as to what he says occurred in China, and to substitute its own findings of fact for those made by the Tribunal. Ground two is not made out.

14. Ground three appears to make two distinct complaints about the Tribunal’s decision. First, that he was not afforded procedural fairness. Second, that the Tribunal had a “mind of prejudgment and negativity”.

15. In relation to the procedural fairness complaint, the applicant complains that the Tribunal did not give “adequate reasons for the finding of a fact”. The ground draws attention to [23] (at CB 83) of the Tribunal’s decision record. Here the Tribunal considered the applicant’s Falun Gong practice in Australia.

16. The Tribunal, on a fair reading, was “prepared to accept” that the applicant had attended a Falun Gong practice site in Australia, but found, on the applicant’s own evidence, that it was only on a “very limited number of occasions”. Further, the Tribunal found that it was “done so in order to learn about Falun Gong”. It did not accept that he had done so for any reason other than to strengthen his claims to protection.

17. As stated above, the Tribunal ultimately disregarded the applicant’s involvement in Falun Gong in Australia in relation to “serious harm” (s.36(2)(a) of the Act) pursuant to s.91R(3) of the Act. It did also separately consider the claim in relation to the complementary protection criterion (s.36(2)(aa) of the Act), as s.91R(3) of the Act does not apply in those circumstances. However in relation to this criterion the Tribunal found that the applicant would not likely suffer significant harm on return. The Tribunal gave cogent reasons for these findings (see [26] at CB 84), and which were open to it on what was before it.

18. In relation to the allegation of bias, which is what, at best, I understood the applicant’s ground to assert, by way of the use of the words of

    
    

    “pre-judgment” and “negativity”, the tests for bias, or the apprehension of bias are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). An allegation of actual bias must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]). As stated above, the applicant was given the opportunity to file any evidence in support of his application. He has not utilised that opportunity. The only relevant evidence before the Court is the Tribunal’s decision record. It is a rare case in which bias can be made out in these circumstances (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

19. On a fair reading of Tribunal’s decision record, I cannot see that it can be said that the Tribunal brought a closed mind, “a mind of prejudgment”, to the determination of the applicant’s case. Nor, in relation to the apprehension of bias, can I see that a well-informed lay observer might reasonably apprehend that the Tribunal brought a closed mind to the consideration in the review before it.  In all, ground three is not made out.

Conclusion

1. In all, the three grounds of the application do not reveal jurisdictional error. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 25 March 2015