SZMTP v Minister for Immigration & Anor [2009] FMCA 121 (20 February 2009)

Last Updated: 26 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 121

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal accepted that the applicant was a practitioner but disbelieved his claims of past harm – no consideration of the applicant’s asserted conduct in Australia – whether the Tribunal overlooked a sur place claim considered. PRACTICE AND PROCEDURE – Observations on the publication of relevant country information available to the Tribunal and the Government’s policy view that such material should be published to as to promote openness and accountability of the Tribunal and its process.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 422B

Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 NABE v Minister for Immigration (No 2) [2004] FCAFC 263

Applicant:

SZMTP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2430 of 2008

Judgment of:

Driver FM

Hearing date:

20 February 2009

Delivered at:

Sydney

Delivered on:

20 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2430 of 2008

SZMTP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 26 August 2008. The Tribunal affirmed a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.
2. The background facts relating to the applicant's arrival in Australia, his protection visa claims and the Tribunal decision on them are set out in the Minister's written submissions, filed on 13 February 2009. I adopt as background for the purposes of this judgment paragraphs 1, second occurring, through to 11 of those written submissions:
   • On 21 January 2008, the applicant, a citizen of the Peoples Republic of China (“PRC”), arrived in Australia (court book (“CB”) 30).
   • On 6 February 2008, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (CB1-40).
   • On 2 May 2008, the delegate refused to grant the applicant a protection visa (CB44-58, CB60-61).
   • On 6 May 2008, the applicant applied to the Tribunal for review of the delegate’s decision (CB64-69).
   • On 17 June 2008, the Tribunal wrote to the applicant, inviting him to attend a hearing before it (CB73-74), which he attended and at which he gave evidence. Documents in support of the application were also provided to the Tribunal at the hearing (CB76-97).
   • On 26 August 2008, the Tribunal handed down its decision affirming the decision of the delegate to refuse the applicant a protection visa (CB100-119).
   • The applicant’s claims
   • The applicant’s claims were set out in a statement accompanying the protection visa application (CB38-40). In essence, he claimed that he faced a well founded fear of persecution in the PRC by reason of his Falun Gong practice. Specifically the applicant claimed that:
     1. in 1996, he and his wife saw people practicing Falun Gong and dispatching flyers in Zhongshang Park. They took a flyer together with a CD and commenced practising Falun Gong. They both found that it had beneficial health effects;
     2. on 20 July 1999, the PRC government proclaimed Falun Gong to be an illegal organisation, restricted access to Falun Gong materials and restricted appeals in relation to Falun Gong activities. ‘Committee’ members attended his home and warned him to cease practising;
     100. on 11 November 1999, he and his wife were involved in a ‘sit in’ at the ‘Province Government Building’. Police beat them and his wife eventually died in hospital;
     4. he was subsequently dismissed from his job, forcing him to “do some casual work”. He also had to wash, clean clothes, cook and take care of his child;
     5. he ‘appealed’ in relation to his wife’s death, but this resulted “in another badly torture (sic)” and he was forbidden from leaving his home for two months;
     6. he subsequently met and married his current wife, and she came to practice Falun Gong as a result of his “influence”;
     7. in November 2006, after he read the “Nine Commentaries on the Communist Party”, he contacted a Falun Gong practitioner who had a small printing office (Mr Xu) and asked him to print flyers and to distribute them regarding “the truth”. He realised that he was being followed, “got rid of the tail” and thought about leaving the PRC;
     8. in November 2007 he, through a travel agency, travelled to Australia and returned to the PRC;
     9. when he returned, he discovered that Mr Xu had been arrested. He was fearful that he would be implicated and left for Australia; and
     10. after his arrival in Australia, he went to the Campsie Square Falun Gong practicing site and practiced Dafa with a Mrs Huang. Further, every Wednesday night he went to her home with other practitioners to study “Dafa” together. He felt at home when he went to the Campsie Falun Gong practice.
   • The above claims were corrected and elaborated upon at the hearing before the Tribunal (CB109[23]-CB114[55]).
   • The Tribunal’s decision
   • The Tribunal’s reasoning is found at paragraphs [56] to [73] of its decision (CB115-118).
   • The Tribunal rejected the applicant’s claims relating to his circumstances in the PRC, the payment of a bribe to obtain his passport, and the explanation for returning to the PRC after his first visit to Australia on the basis that it found that the applicant was not a witness of truth and that the claims were not credible. This was for a number of reasons:
     1. the evidence indicated that the applicant left the PRC on a passport issued in his own name and had no difficulty entering and exiting on two occasions in 2006, whereas country information indicated that persons with an adverse profile with the security and government authorities would encounter difficulties when entering and leaving. The evidence regarding the payment of a bribe was not plausible (CB117[66]);
     2. the applicant failed to seek protection when in Japan, which undermined his credibility given that a person with a genuine fear would have claimed protection, particularly after what had happened to his first wife (CB 117[67]);
     100. the applicant’s ability to pay substantial bonds to leave the PRC for Japan and Australia in 2006 indicated that the applicant did not suffer economic hardship, despite his claim to have lost his employment (CB117[68]).
   • The Tribunal gave the benefit of the doubt to the applicant and accepted that he was a Falun Gong practitioner (CB117[69]). However, the above matters indicated that he was not of adverse interest to the PRC authorities and he did not hold a genuine fear of persecution (CB117[69]-[70]).
3. These proceedings began with a show cause application filed on 18 September 2008. There were two grounds in the application:
   • 1. Jurisdictional error has [been] made. RRT did not make fair decision for me.
   • 2. Procedural Fairness has been denied. RRT did not use favourable cases to my application. RRT failed to consider the risk for me to go back. I am Falun Gong practitioner. I will be put in jail if I return to China.
4. The applicant has been given the opportunity to file and serve an amended application but continues to rely upon the original one. The application is supported by a short affidavit, which I accepted as a submission. I have before me as evidence the court book filed on 27 October 2008. I also received two documents as an exhibit bundle[1]. One was a press release by the Minister for Immigration, dated 17 February 2009:
   • Greater transparency for refugee and migration tribunals
   • Tuesday, 17 February 2009
   • The Refugee Review Tribunal (RRT) will publish its country of origin research to provide greater transparency in its decision making, the Minister for Immigration and Citizenship, Senator Chris Evans, said today.
   • Senator Evans said the information will be available online from this week so the community can better understand the reasons behind the tribunal’s decisions.
   • ‘This is an important development in demonstrating the openness and accountability of the tribunal and its decision making processes,’ Senator Evans said.
   • ‘The publication of the Refugee Review Tribunal’s country of origin research will provide greater access to justice to protection visa applicants, migration advisers and the public.’
   • More than 450 research documents from the major countries of reference for RRT reviews will initially be published, including country of origin information from China, India, Malaysia, Bangladesh, Indonesia, Lebanon, Sri Lanka, South Korea, Pakistan and Vietnam.
   • The research published includes general background information, commissioned research and opinions from academics and experts as well as responses researched in answer to specific questions posed by RRT members in relation to particular reviews. These responses are carefully edited to protect the identity and privacy of individual visa applicants and to maintain the integrity of the review process.
   • The RRT will publish country of origin research dating back three years. As new research is added to the website, older and out of date material will be archived, so that the research readily available to the public is the most recent and current.
   • ‘The Research and Information Section has earned a high reputation among refugee agencies worldwide and is considered a quality research model for refugee decision-making in other countries,’ Senator Evans said.
   • Senator Evans said that the RRT and the Migration Review Tribunal (MRT) will also double the number of decisions published online so that 40 per cent of all decisions made by the tribunals will be publicly available. The move follows community requests to see more tribunal decisions published.
   • ‘The tribunals publish a broad cross section of their decisions in the public interest and doubling the number available will increase the transparency of the decision making and further improve understanding of this important merits review function,’ Senator Evans said.
   • The tribunals’ research and decisions can be obtained online along with further information about the roles of the RRT and MRT.
   • See: www.mrt-rrt.gov.au
   • http://www.minister.immi.gov.au/media/media-releases/2009/ce09018.htm
5. The second document received as part of the exhibit bundle is a Tribunal research response dated 21 November 2007 relating, among other things, to the risk that might be faced by Falun Gong practitioners outside China should they return to China. The document was downloaded from the Tribunal website identified in the Minister's press release.
6. The Minister, through his counsel, objected to the tender of those documents on the ground of lack of relevance. I took the view that the documents were at least potentially relevant to the issue of whether the Tribunal overlooked a relevant consideration, namely, whether the applicant had a well founded fear of persecution in China by reason of his conduct in Australia. The Minister's press release argues cogently for openness and accountability in Tribunal decision making. In my view, the material published to the world on the Tribunal website should be available to parties in proceedings before the Court where it has some bearing on the issues to be resolved. Indeed, even if the documents had not been tendered it might be argued that the Court could take judicial notice of them pursuant to the principles enunciated by the High Court in Holland v Jones [1917] HCA 26; (1917) 23 CLR 149.
7. There is no substance to the grounds in the application. I considered those grounds at a show cause hearing on 1 December 2008. I took the view then, and remain of the view now, that no arguable case of jurisdictional error arises from them as expressed; subject to the issue of a possible sur place claim discussed below. I agree with and adopt, with minor amendments for the purposes of this judgment, paragraphs 13 through 19 of the Minister's written submissions:
   • The first ground of review is that “Jurisdictional error has bee [sic] made. RRT did not make fair decision for me..”
   • This ground appears to assert that because the Tribunal did not make a ‘fair’ decision, the Tribunal committed jurisdictional error. This plainly cannot be sustained because it proceeds upon the misapprehension that disagreement with the outcome is the proper subject of judicial review, whereas jurisdictional error concerns legal errors relating to the process by which the outcome is reached.
   • In other words, this ground seeks impermissible merits review.
   • Ground 2
   • The second ground of review is that “Procedural fairness has been denied. RRT did not use favourable cases to my application. RRT failed to consider the risk for me to go back. I am Falun Gong practitioner. I will be put in jail if I return to China.”
   • In relation to the allegation of a denial of procedural fairness, this ground of review has not been particularised and s.422B(1) of the Migration Act 1958 (Cth) (“the Migration Act”) precludes the application of the common law fair hearing rule. If the applicant is intending to assert that a statutory provision in Part 7 Division 4 of the Migration Act has been breached, this has not been made clear nor has the relevant provision been identified. Further, on the face of the material, there is no apparent breach of these statutory provisions.
   • With regards to the assertion that the Tribunal did not use “favourable cases”, this is not a known ground of review. It is for the applicant to make out his case – not for the Tribunal to look for cases that will assist the applicant. Therefore if the applicant wanted the Tribunal to consider a particular case, it was for him to draw the Tribunal’s attention to it. Further, the nature of merits review involves each case being determined on its own facts.
   • The balance of the ground merely seeks impermissible merits review.
8. However, at the show cause hearing I identified an issue meriting a final hearing. I ordered the Minister to show cause why relief should not be granted on the basis that the Tribunal overlooked an element or integer of the applicant's claims in relation to his practice of Falun Gong in Australia as disclosed in writing (CB 40) and orally at the Tribunal hearing as disclosed at paragraph 45 of the Tribunal's reasons (CB 114).
9. In relation to that issue the applicant made no written submissions, but did make oral submissions. He submits that he is a Falun Gong practitioner and that, at least in the period following the Tribunal decision, he has participated in pro Falun Gong demonstrations. He sought to tender photographs and possibly other material which he says support that claim, but I declined to receive them on the basis that the material was not available to the Tribunal.
10. The applicant, in his closing submissions, drew my attention to two photographs reproduced at CB 82 and 83 which the Chinese characters at CB 84 apparently identify as a candlelight vigil conducted in Sydney on 20 July 2008 in support of Falun Gong practitioners in China. It is impossible to tell from the photographs as reproduced whether the applicant was present.
11. The Tribunal Research Response, forming part of exhibit A1, deals with the possibility that Falun Gong practitioners, if they take a high profile in Australia or participate in protests against the Chinese government, may attract the adverse attention of the Chinese authorities and, thereby, be at risk of some harm should they return to China. The Research Response is dated 21 November 2007 and hence would have been available to this Tribunal. It does not follow, however, that the Tribunal needed to have regard to that material. The material would only have some bearing on the case before the Tribunal if the Tribunal identified a sur place claim requiring consideration. In addition, the Tribunal is not compelled by law to have regard to any particular information that may be available to it in its database, although it might generally be prudent to do so.
12. The applicant's written claims are relevantly reproduced at CB 40. The applicant stated:
    • But I was so impressed by Australia. People in Australia could practice Falun Gong freely and they could study Dafa together. There is real religious freedom, human rights and equality here.
    • After returned China I heard that [a named person] was arrested and his printing office was forced to close as well. I was afraid that I could be implicated. I applied for Australia visa and escaped from China. On January 21 2008, I arrived in Sydney and found a place in Campsie to live. Later I came to Campsie Square Falun Gong practicing site and practiced Dafa with [a named person]. Every Wednesday night we gather at [the named person's] home and study Dafa together. I felt I were at home when I came Campsie Falun Gong practice site.
    • Falun Dafa practitioners were suppressed cruelly in China. But I am so lucky that I was able to escape from persecution from Chinese government. I fear to go back. The above statement is an ordinary Falun Gong practitioner’s tears of blood. I hope Australia Government could protect me.
13. At CB 114[2], the Tribunal records:
    • The Tribunal asked the applicant whether there was anything more that he wished to add, and he stated that he had previously been practising Falun Dafa in Campsie, but had recently relocated to Hurstville and was now practicing in that area. The hearing concluded at this stage.
14. The Minister concedes that there was no consideration by the Tribunal of a sur place claim but submits that no such claim was clearly articulated or squarely arose from material, and that hence there was no claim calling for consideration.
15. The Tribunal accepted that the applicant was a Falun Gong practitioner. That acceptance logically extended to his practice in Australia as well as in China. The Tribunal made no mention of s.91R(3) of the Migration Act in its reasons which indicates that the Tribunal was satisfied that the applicant's conduct in Australia was engaged in for a reason other than to enhance his protection visa claims. This goes part way to establishing a case that the Tribunal overlooked a relevant consideration. There was material before the Tribunal both orally and in writing which might arguably have alerted the Tribunal to a sur place claim requiring consideration.
16. The Minister relies upon the Federal Court decision in NABE v Minister for Immigration (No 2) [2004] FCAFC 263 against such a conclusion. I incorporate in this judgment paragraphs [58] and [68] of that decision:
    • 58 The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
    • 68 Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.
17. I do not think that this case is distinguishable from NABE. As in NABE a sur place claim might have been seen as arising from the material, but it did not represent a substantial, clearly articulated argument relying upon established facts. I accept that the Court must be cautious before identifying such a claim as arising from the material where it is not clearly articulated.
18. It is also relevant that in his written claims the applicant expressed his relief at being able to practice Falun Gong freely in Australia. This might support a view that far from being fearful of the consequences of his practice in Australia, the applicant was free from fear. That conclusion was, in my view, open to the Tribunal on the material and no obligation to consider a sur place claim arose from the material.
19. I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
20. Costs should follow the event in this case. The Minister seeks scale costs of $5,000. The applicant claimed an inability to pay but, as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 February 2009

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[1] Exhibit A1
[2] paragraph 54 of its reasons