SZNRA v Minister for Immigration & Anor [2009] FMCA 1108 (28 October 2009)

Last Updated: 17 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1108

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 91R, 424A

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 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 SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184

Applicant:

SZNRA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1381 of 2009

Judgment of:

Barnes FM

Hearing date:

28 October 2009

Delivered at:

Sydney

Delivered on:

28 October 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.
(2) The applicant pay the costs of the first respondent fixed in the sum of $3,900.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1381 of 2009

SZNRA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 made on 14 May 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
2. The applicant, a citizen of the Peoples Republic of China, arrived in Australia in October 2008 and applied for a protection visa in December 2008 claiming to have a well-founded fear of persecution on the basis of her adherence to and promotion of Falun Gong. She claimed in particular that she had been detained for 15 days and fined and that she feared that the Chinese government and police would mistreat her and persecute her again.
3. A delegate of the first respondent recorded that the applicant was invited to attend an interview but did not do so. The delegate declined to grant the applicant a protection visa. The applicant sought review by the Tribunal in March 2009. She attended a Tribunal hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s reasons for decision. The applicant also provided the Tribunal with a written statement setting out her claims and copies of photographs.
4. In its reasons for decision the Tribunal set out the applicant’s written claims and described in detail what occurred at the Tribunal hearing, including referring to issues that it put to the applicant in relation to her credibility and also in relation to particular aspects of her claims.
5. In its findings and reasons the Tribunal stated that for the reasons set out in its decision it did not accept that the applicant was a witness of truth. It was satisfied that the applicant had been prepared to fabricate her material claims where she believed it would enhance her prospects of being determined to invoke refugee protection obligations in Australia.
6. The Tribunal referred to the fact that it had raised this issue with the applicant near the commencement of the hearing although it explained to her that it had not at that time heard her claims and was not yet able to form any views. It then set out the matters that led it to conclude that the applicant was not a witness of truth. It referred first to the applicant’s claims that she had 14 years of education and was qualified as a nurse, that she had been arrested in March 2004 in China and that she had continued to reside in the same city in China.
7. It also set out the applicant’s claim that she had accompanied a friend in March 2004 to distribute posters in support of Falun Gong and her explanation that she did so because the friend had introduced her to Falun Gong and she had attended three Falun Gong practice sessions in a private home. The Tribunal recorded that it had put to the applicant that it did not appear plausible that she would have pasted Falun Gong posters in the street in her city in the daytime if she had been told, as she claimed, that it was not safe to practice Falun Gong either publicly or in private homes and in light of country information about the approach of the Chinese authorities and their oppression of the practice of Falun Gong. It recorded her response that she was only a housewife and that she did not understand how significant the oppression of Falun Gong was.
8. The applicant also claimed that as a result of her alleged distribution of posters she was detained for 15 days by the authorities and mistreated, but that she had not practised Falun Gong in China after her release as her husband pressured her not to do so and she feared she may be harmed.
9. The Tribunal was satisfied that the applicant’s claims about her arrest were fabricated, being positively satisfied that a reasonably well-educated person in China would be aware that it may be dangerous to put posters supporting Falun Gong in public streets in a city in China in the middle of the day in 2004. While the applicant had claimed only to be a housewife, the Tribunal had regard to the fact that she was educated and thus able to read or listen to what it described as the “innumerable media and other sources that detailed the suppression of Falun Gong” and the fact “that it had been outlawed by the Chinese authorities”. This was said by the Tribunal to be one of the reasons that ultimately satisfied it that the applicant was not a witness of truth.
10. The Tribunal also had regard to the applicant’s claim to have been visited by the authorities after her release in 2004 every few days until she departed China in October 2008. It noted that in her original protection visa application (prepared with the assistance of a registered migration agent) she claimed the authorities may continue to persecute her as before, but that she provided no further written claims about this.
11. The Tribunal put to the applicant that it may not accept that she had been approached every few days by the authorities after March 2004. She said words to the effect that there were a lot of words in the one page document she gave the Tribunal that had not been put before. However the Tribunal did not consider it plausible that the applicant, with an apparently registered migration agent, would not have more fully elaborated in writing the ongoing harassment she claimed she allegedly suffered if this were true.
12. Moreover, as the Tribunal was not satisfied that the applicant was a generally credible witness, it rejected her late claim of having been subject to ongoing harassment every few days by the Chinese authorities. It was satisfied that this evidence was put solely in order to enhance the applicant’s claim to be a refugee.
13. The Tribunal then addressed the applicant’s claims that she had, from mid-March 2009, practised Falun Gong in Australia at Hurstville. It set out the provisions of s.91R(3) of the Migration Act 1958 (Cth) and referred to the judicial interpretation of that section and photographs provided by the applicant. The Tribunal did not accept that the applicant would have delayed the practise of Falun Gong in Australia for over four months if she was a sincere and genuine practitioner. It also had regard to what she knew about Falun Gong and her agreement that the only reason she wished to practise Falun Gong was because she believed it was good for her health (in particular her bad shoulder) as well as to her claims about the extent of her practice of Falun Gong in Australia. The Tribunal found that even if it accepted that the applicant engaged in the claimed conduct in Australia, it was satisfied she knew very little about the practice of Falun Gong. This and her eventual concession that she only practised for her health and had not taken more steps to learn about Falun Gong while in Australia were further reasons that satisfied the Tribunal that the applicant engaged in the practice of Falun Gong in Australia solely to enhance her claim to be a refugee. Hence the Tribunal disregarded the applicant’s relevant conduct in Australia under s.91R(3) of the Migration Act.
14. For the reasons set out in relation to the applicant’s claims about her activities in China, the Tribunal was satisfied that the applicant was not a witness of truth and rejected all her material claims to invoke refugee protection obligations in Australia as false. It was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in China.
15. The applicant sought review by application filed in this court on 10 June 2009. The only ground relied on by the applicant is as follows:
    • I have been a FalunGong (sic) practitioner and spread Falun Gong to others such as putting posters on the street. I was therefore persecuted by the CCP authorities, detained for 15 days and fined RMB 30,000. Unfortumately (sic) the Tribunal didn’t take all my experience into account and rejected all my claims. I think the Tribunal had a bias towards my application for protection visa and failed to consider my application according to S91R of the Migration Act 1958
16. In oral submissions the applicant was given an opportunity to elaborate on this ground. She reiterated her claim to be a Falun Gong practitioner and asserted that the Tribunal had no evidence to prove that she was not a Falun Gong practitioner.
17. First, insofar as the applicant asserts both in the application and in oral submissions that she is a genuine Falun Gong practitioner, she seeks to take issue with the factual findings of the Tribunal and invites an impermissible merits review. Her disagreement with the Tribunal’s factual findings does not establish jurisdictional error on the part of the Tribunal.
18. Insofar as the applicant contended that the Tribunal had no evidence to prove that she was not a Falun Gong practitioner, it is well-established that it is for an applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14).
19. Under s.65 of the Migration Act, the Tribunal is obliged to be satisfied that an applicant meets the criteria for the grant of the visa, in this case that she is a person to whom Australia has protection obligations under the Refugees Convention. In assessing the applicant’s claims and evidence the Tribunal does not have to have rebutting evidence available to it not to be satisfied in that respect and hence to reject the applicant’s claims.
20. In this case, for the reasons that it gave, the Tribunal rejected the claims made by the applicant, in particular that she was detained in China for 15 days in 2004 after having distributed Falun Gong posters with a friend, having previously participated in Falun Gong activities on only three separate occasions in private premises as well as her late claims to have been visited by the authorities on a regular basis after 2004 until her departure from China in 2008.
21. The Tribunal concluded for the reasons which it gave (a conclusion which was open to it on the material before it) that the applicant was not a witness of truth. On that basis it rejected her claims about the practice of Falun Gong in China and what she claimed had occurred to her thereafter.
22. Insofar as the applicant took issue with whether the Tribunal considered her application in accordance with s.91R of the Migration Act, when given the opportunity to elaborate on that claim the applicant reiterated that the Tribunal had no evidence to prove that she was not a Falun Gong practitioner. As indicated, that misunderstands the nature of the Tribunal’s obligations under the Migration Act. The applicant has not established that the Tribunal failed in any way to comply with any part of s.91R of the Migration Act in the generalised and unparticularised manner in which that is asserted.
23. The applicant also claimed that the Tribunal did not take all her experience into account and rejected all her claims. Again there are no particulars to this contention. In oral submissions the applicant reiterated that she was concerned with the fact that she was a genuine Falun Gong practitioner and took issue with the Tribunal’s conclusion and the basis on which it had concluded that she was not a witness of truth.
24. Again, insofar as the applicant’s complaint is with the Tribunal’s failure to accept her claims that does not establish a jurisdictional error. It is not apparent and nor has the applicant established that the Tribunal failed to have regard to any integer of the applicant’s claims. The Tribunal is not obliged to refer expressly to each claim made or to each piece of evidence put forward by an applicant in its reasons for decision (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184) and it is apparent in this case that the Tribunal did consider the applicant’s claims.
25. More generally the applicant contended that the Tribunal was biased. This assertion was made on the basis of the conclusion reached by the Tribunal and on the basis that the applicant contended that she was a Falun Gong practitioner. However the Tribunal’s failure to accept the claims of the applicant is not of itself sufficient to establish either apprehended or actual bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, or Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17.
26. I note that it is only in a rare and exceptional circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons for decision (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356), and on the material before the court, the fact that the Tribunal raised with the applicant at the commencement of the hearing the general issue of her credibility and thereafter particular concerns about the credibility of aspects of her claims is not such as to establish either actual bias in the sense of predetermination or, from the perspective of the appropriately informed lay observer, that the decision-maker might not bring an impartial and unprejudiced mind to resolution of the issue before it.
27. An expression of even a preliminary view, for example as might be said to occur in the context of a s.424A letter, or the raising of issues that would be dispositive with an applicant in the course of the Tribunal hearing (as appears to have been done in this case) would not, without more, constitute either actual or apprehended bias (see Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185).
28. As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.
29. The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,900. The applicant told the court that she has no work permit, no work and no money at present. However the applicant’s lack of funds is not a reason in the circumstances of this case for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 16 November 2009