SZUZE v Minister for Immigration
[2015] FCCA 1767
•1 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUZE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1767 |
| Catchwords: ADMINISTRATIVE LAW – Whether the Tribunal’s decision was affected by jurisdictional error – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal failed to give proper and sufficient consideration to evidence of applicant’s witness – whether a mistake by the Tribunal in respect of relevant material amounted to jurisdictional error – mistake did not amount to jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | SZUZE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2412 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 17 April 2015 |
| Date of Last Submission: | 17 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Mr A. Markus, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2412 of 2014
| SZUZE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the second respondent (“Tribunal”) dated 29 July 2014. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 3 May 2008 on a student visa. That visa expired on 30 December 2008 and on 25 July 2012 the applicant was located by an officer of immigration and detained in the Villawood Immigration Detention Centre. On 6 August 2012 the applicant applied for a protection visa and he was granted a bridging visa on 23 August 2012.
In his application the applicant claimed that since coming to Australia he had become involved in the Falun Gong movement and attended meetings here. He said that there are spies placed here by the Chinese government and that he feared persecution on return to China because of his involvement with the movement and his beliefs.
At an interview conducted by the delegate on 7 November 2012 the applicant claimed that he was a Falun Gong member in China and that he was brought up in a Falun Gong household. He claimed that in China his family members were subject to severe persecution because of their beliefs and that he was sent to Australia. He said that his uncle was detained by the Public Security Bureau and after three months it was found that he had been beaten to death. Sometime after the death of his uncle, the applicant’s father went to the municipal policy committee in Fujian. He was also taken by the police and died three months later in August 2000. Subsequently, when his grandfather tried to investigate why they had died he was also arrested and he died two months later in January 2001. The applicant’s second uncle was discovered by police practising Falun Gong and when he came back from police detention he was severely mentally impaired. In 2002 the applicant and his youngest uncle were discovered delivering Falun Gong leaflets and his uncle’s leg was beaten so badly by police that it had to be amputated and when the applicant tried to escape he was bitten on his neck and hands by police dogs. When the applicant’s father died his mother remarried and the applicant was brought up by several relatives.
On 16 November 2012 the delegate made a decision to refuse to grant the applicant a protection visa and the applicant subsequently applied to the Tribunal for review of that decision.
On 3 December 2012 the applicant attended a hearing before the Tribunal and gave evidence in support of his claims. His cousin, Ms W, also gave evidence. At the hearing, the applicant provided the Tribunal with a number of documents including written submissions, photographs of the applicant in which he appeared to be attending a Falun Gong demonstration and two statements both dated 2 December 2013: one by himself and the other by Ms W. The latter of these has some bearing upon the issues in the proceedings. In it Ms W said, amongst other things:
3.I am aware that [the applicant] began the practice of the Falun Dafa philosophy when he was very young as he was raised by his grandmother. Because of this fact, my parents and the other uncles were very much part of [the applicant’s] life in China.
4.Our family’s involvement both here and in China of Falun Gong and the ramifications for us in China have been documented in my case in the Refugee Review Tribunal. My parents suffered greatly as a result of their commitment to Falun Dafa and my family was brutally treated by the PSB and the local authorities directly because of his practice of the Falun Dafa exercises and philosophy.
5.My father led a group in Beijing at one stage in Falun Gong and later returned to Fujian Province and my cousin [the applicant] visited my parents frequently and practised the exercises from a young age.
On 12 December 2013 the applicant’s migration agent submitted further written submissions to the Tribunal. The Tribunal made its decision on 29 July 2014.
The Tribunal’s decision
The Tribunal found that the applicant’s evidence was not credible. It gave a number of reasons for this conclusion:
i)in respect of the photographs it found that being photographed at the side of a banner does not establish that the applicant was a practitioner;
ii)there was no mention of the family’s history of persecution in the applicants protection visa application;
iii)it did not accept the applicant’s reasons for not seeking protection before he was detained and found that it was implausible that he would not have sought protection in Australia if he and his family had suffered in China as claimed, particularly taking into account the fact that his cousin had, to his knowledge, successfully relied on a family history of persecution to gain protection;
iv)the fact that the applicant had not suffered any harm from 2002 until 2008 in China did not support his claim that he fled China because of a fear of persecution;
v)the lack of knowledge of Falun Gong shown by the applicant in the interview with the delegate was inconsistent with his having grown up in a family who practised Falun Gong; and
vi)the reason given by the applicant to the Tribunal as to when he found out about the availability of seeking protection in Australia was inconsistent with the reason given by him to the delegate.
Next, the Tribunal referred to Ms W’s statement saying:
[47]…In her written statement, Ms [W] only refers to her parents’ involvement in Falun Gong. She makes no reference to such activities by her maternal grandfather or uncles. She makes no reference to the applicant having practised Falun Gong in China. Her written statement does not support the applicant’s claims about what happened to him and his family in China. …
The Tribunal then said that it was consistent with the applicant not making a claim about his family’s history of Falun Gong activities and that he knew that Ms W’s claims related only to her father and mother. The Tribunal then noted Ms W’s oral evidence saying:
[48]Near the end of the hearing, Ms [W] corroborated orally the applicant’s claims about his father’s and uncles’ unnatural deaths and that he would not lie or fabricate such brutal things. She said that he is practising Falun Gong at the moment and that his fate will be the same if he returns to China. However, the Tribunal does not accept that evidence. That she did not mention the serious persecution history of her maternal grandfather and uncles in her written statement is inconsistent with that history being true. She only addressed her parents’ Falun Gong history.
Next, the Tribunal referred to the death certificates and disability documents provided by the applicant in support of his claims and found that because it did not accept his evidence about the family’s claimed Falun Gong activities, it did not accept that the deaths or disability related to Falun Gong activities or persecution because of such activities.
Finally, the Tribunal considered a number of untranslated documents upon which was written “untranslated document understood to be letters of appointment of family members within the Falun Gong organisation”. It gave those documents no weight because there was no translation of them and because of the concerns the Tribunal had about the credibility of the applicant’s evidence for the reasons already given.
For those reasons the Tribunal did not accept that the applicant’s father, paternal grandfather and uncles were persecuted because they were Falun Gong practitioners or involved in Falun Gong activities. It did not accept that the applicant had been a Falun Gong practitioner or had engaged in various Falun Gong activities in Australia or in China or that he would do so if he returned to China. It did not accept that he had shown allegiance to Falun Gong in Australia or would be a target because he is from Fujian Province. It concluded that the applicant was not a person in respect of which Australia has protection obligations under the refugees convention and therefore did not satisfy the criterion set out in sub-s.36(2)(a) of the Migration Act 1958 (“Act”). For the same reasons it found that the applicant did not meet the alternative criteria in sub-s.36(2)(aa) and affirmed the decision of the delegate to refuse to grant the visa.
Consideration
There are two grounds in the application.
Ground 1
The first ground is that the Tribunal breached the rules of procedural fairness by failing to give the applicant an opportunity to comment on information relied on by the Tribunal. This is explained in the application as being a reference to the failure by the Tribunal to give the applicant an opportunity to provide a translation of the documents given by him in the Chinese language.
The documents referred to in this ground appear to be the documents referred to at [12] above, namely documents that had the following written on them: “untranslated document understood to be letters of appointment of family members within the Falun Gong organisation”. The delegate however placed no evidentiary weight on the documents and, as a consequence, the applicant was on notice that these documents were in issue on the review. Further, the applicant was represented by a registered migration agent for the purposes of the review who ought to have been aware from correspondence from the Tribunal that if he wanted any documents to be considered by the Tribunal he should supply those documents to it. For those reasons, the applicant has not established that he was denied any opportunity to put material before the Tribunal. This ground is rejected.
Ground 2
The second ground is that the Tribunal failed to give sufficient consideration to the evidence provided by Ms W, the applicant’s cousin. Although this ground is not particularised, it raises the question of the understanding by the Tribunal of what Ms W said in her statement. The extract set out above discloses that it is at least arguable that the Tribunal was wrong to say, at [47] that her statement “only refers to her parents’ involvement in Falun Gong”, “makes no reference to the applicant having practised Falun Gong in China” and “does not support the applicant’s claims about what happened to him and his family in China.” That possibility raises the question of whether the Tribunal has fallen into jurisdictional error by making mistake in respect of the evidence.
The Minister’s written submissions accepted that the Tribunal appeared to have overlooked or misread paras.3 and 5 of Ms W’s statement and accepted that a failure to consider the evidence may, in particular circumstances, amount to jurisdictional error depending on the relevance and importance of the material.
In his oral submissions on behalf the Minister, Mr Markus made two points: first, that, reading the Tribunal’s decision beneficially, what the Tribunal was saying in [47] was that paras.3 and 5 of Ms W’s statement were simply referring to the fact that the applicant was exposed to Falun Gong practice at a young age and that there was no clear statement in it that the applicant was an adherent of Falun Gong in China. Secondly, he submitted that if the Tribunal was in fact mistaken as to the effect of Ms W’s statement, that statement was extremely limited in its terms, and in any event could not have affected the findings of the tribunal because it rejected Ms W’s evidence at [48] of its decision.
While I accept Mr Markus’s submission that it is difficult to infer that the Tribunal simply overlooked Ms W’s statement, I do not accept his characterisation of the Tribunal’s findings in respect of that statement. At [47] the Tribunal described the statement as making no reference to the applicant “having practised” Falun Gong and that it did not support the applicant’s claims about what happened to him and his family in China. The statement, on the other hand, referred to the applicant having begun “the practice” of Falun Dafa and that he “practised the exercises” from a young age. Further, as the applicant’s claims centred on his practice of Falun Gong and included persecution suffered by him in connection with that practice, the fact that the applicant had, according to his cousin, practised Falun Gong in China was clearly, if not centrally, relevant to his claims. For that reason I conclude that the Tribunal has made a mistake in respect of relevant material. The next issue is whether that mistake amounted to jurisdictional error.
The cases reveal that not every failure to consider relevant material will result in or constitute jurisdictional error: see for example, SZRHL v Minister for Immigration & Citizenship [2013] FCA 1093 (“SZRHL”) at [22]. The difficult question, however, is how to determine which failure will and which failure will not result in such an error.
In Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 (“SZRKT”), Robertson J said, at 130-131 [111]-[112]:
… The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.
This analysis has been approved in a number of subsequent cases including Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”); and Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114 at [70]. As set out in SZSRS at [19], the primary judge said this on the question of whether it was jurisdictional error to overlook a letter:
Although, as the Minister submitted, the Tribunal need not refer to every piece of evidence before it, failure to refer to important evidence may indicate that it has not been considered. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not so insignificant that failure to take it into account could not have materially affected the decision, and where such failure could possibly have deprived an applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in a manner required by the Act and is properly characterised as a jurisdictional error. …
While his Honour’s judgment was upheld on appeal, the Full Court did not endorse the primary judge’s statement of principle. It said, at [58]:
… We agree with the Minister’s submission that it is possible to read paragraph [15] as amounting to a statement that jurisdictional error will necessarily be established if the ignored material is relevant (“might have had a bearing on the outcome of the review…not so insignificant that failure to take it into account could not have materially affected the decision”). That puts the matter too widely. The primary judge appears to conflate the question of whether the Tribunal made a jurisdictional error with whether relief should be refused in the exercise of the Court’s discretion. …
With all due respect to the Full Court and without suggesting in any way that I disagree with it, the primary judge’s statement of principle has some basis in authority. For example, in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117, a decision of the Full Court relied on by Robertson J in SZRKT, the Court said, at [79]:
… While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.
The Court further said, at [83]:
… [T]he Tribunal’s error is properly characterised as a jurisdictional error which could possibly have deprived the appellants of a successful outcome to their application for review.
Likewise, although there was a different outcome on the appeal, the Full Court in SZQRW v Minister for Immigration & Citizenship (2012) 134 ALD 454 said, at [56]:
… Rather, the error made by the reviewer in this case is to be characterised in the same way as the error in the MZXSA, namely, as an instance of errant fact-finding which occurred in the course of considering the appellant’s claims, and which was relied on only in a peripheral way. In other words, this was an error in fact-finding which could not have materially affected the decision nor have deprived the appellant of the possibility of a successful outcome.
In SZRHL, Logan J said at [37] after referring to VAAD:
… [I]t is not, in my view, open to conclude that the appellants have not, as a result of the error made by the Tribunal, been deprived of the possibility of a successful outcome on the merits of their protection visa applications. It is the existence of such a possibility which is both necessary and sufficient to warrant the granting of relief on judicial review: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
It may be noted that both of the cases referred to by Logan J in that passage relate to the exercise of discretion on judicial review.
In Minister for Immigration & Border Protection v SZSNW [2014] FCAFC 145 the decision-maker was found to have disregarded the plain fact that the first respondent had raised claims to have been sexually assaulted during an interview which took place on Christmas Island conducted specifically to assess his claim to be a refugee. Each member of the Full Court gave different reasons for concluding that this error was reviewable by the Court. For present purposes it is sufficient to note that Buchanan J said at [92]-[93]:
It cannot be said that those erroneous conclusions could not have materially affected the outcome, in view of the interconnected nature of the IMR’s findings on reliability (see also FTZK v Minister for Immigration and Border Protection [2014] HCA 26 (2014) 88 ALJR 754 per Crennan & Bell JJ at [97];
The error, therefore, had a discernible effect on the exercise of the IMR’s function. In my view, that function was not carried out in accordance with the purpose to which it was directed.
In each of the cases to which I have just referred, reference is made to a statement by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. In contrast, Robertson J noted in SZRKT, at [99], that the decision in that case was brought under the Administrative Decisions (Judicial Review) Act 1977 and therefore did not provide a sound basis considering questions of jurisdictional error either at all or under the Act.
It is not my place to resolve what I perceive to be a conflict in these authorities. It appears to me that the principle to be applied is that stated by Robertson J in SZRKT at [111]-[112]. As Mr Markus submitted, those paragraphs, and other authorities that have applied them, do not provide very clear guidance as to their application and that this may be because it is a matter of judgment depending on the particular facts of each case as to how relevant or how significant the particular piece of evidence, fact or material that has been overlooked was to the decision.
In my view, the evidence in paras.3 and 5 of Ms W’s statement were not particularly cogent. For instance, in para.3, she simply said that she was “aware” that the applicant had begun the Falun Dafa practice when he was very young “as he was raised by his grandmother”. Further, at para.5 there is a disconnect between the first part of the paragraph (“my father led a group in Beijing…”) and the second part (the applicant “visited my parents frequently and practised the exercises from a young age”). There is no question that, if accepted, these statements would have supported the applicant’s claims in so far as they relied upon his practice in China of Falun Gong. However, they are not compelling or indeed very convincing in respect of those claims.
Further, and perhaps more importantly, those parts of the statement do not appear to have been material to the Tribunal’s reasoning. This was not a case like SZRKT where the finding of fact to which the material was directly relevant was ultimately one of the critical reasons for which the Tribunal rejected all of the applicant’s claims. Rather, this case is an example of a more nuanced approach to credibility. What was significant to the Tribunal’s finding about the applicant’s claims relating to the events in China were first, that the applicant’s original protection visa application claims did not contain any reference to those events, and secondly, Ms W did not mention the serious persecution history of her maternal grandfather and her uncles in her written statement: see [48].
For those reasons, although I find that the Tribunal made an error in its assessment of part of the material relied upon by the applicant to support his claims, that error was not serious and so did not amount to jurisdictional error.
For those reasons, I reject the second ground.
Further matter
At the hearing of this matter the applicant appeared unrepresented. He did not address either of the two grounds in his application but said that he wondered why the Department of Immigration would not recognise him as a refugee when they recognised his female cousin (referring to Ms W). While I can understand why the applicant raised that issue, it does not raise any arguable jurisdictional error in the Tribunal’s decision.
Conclusion
For the above reasons, there is no jurisdictional error in the Tribunal’s decision and the application must be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 1 July 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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