SZMWL v Minister for Immigration & Anor [2009] FMCA 379 (30 April 2009)

Last Updated: 1 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 379

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – citizen of China claiming fear of persecution as a Falun Gong practitioner – merits review – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.91R – jurisdictional error – certiorari and mandamus issued.

Migration Act 1958 (Cth), ss.91R(3), 474, 476

NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 followed SZIYG v Minister for Immigration and Citizenship [2008] FCA 1143 distinguished Plaintiff S157/2002 v Commonwealth of Australia

Applicant:

SZMWL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2739 of 2008

Judgment of:

Scarlett FM

Hearing date:

6 March 2009

Date of Last Submission:

6 March 2009

Delivered at:

Sydney

Delivered on:

30 April 2009

REPRESENTATION

Counsel for the Applicant:

The Applicant appeared in person

Solicitors for the Applicant:

No solicitor on the record

Solicitor for the Respondents:

Mr Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) That an order in the nature of certiorari is to issue quashing the decision of the Second Respondent signed on 3 September 2008 and handed down on 23 September 2008 affirming a decision not to grant the Applicant a Protection (Class XA) visa.
(2) That an order in the nature of mandamus is to issue remitting the Applicant’s application for a Protection (Class XA) visa to the Second Respondent for determination according to law.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2739 of 2008

SZMWL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This application is brought by a woman who is a citizen of China. She has applied for judicial review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant her a Protection (Class XA) visa.
2. The Applicant asks the court to issue a writ of certiorari quashing the decision of the Tribunal and an order, in the nature of mandamus, requiring the Tribunal to reconsider the matter according to law.
3. The Applicant relies on these two grounds:
   • 1. I would be prosecuted if I go back to China because I am a Falun Gong practitioner.
   • 2. The Tribunal member should not deny that I was a Falun Gong practitioner.

3. The Tribunal failed to consider the whole of my case.

4. The First Respondent, the Minister for Immigration and Citizenship, filed a Response on 5th November 2008, opposing the orders sought in the application. The Response claims that the Applicant’s first and second grounds are a clear attempt ay impermissible merits review and, whilst the third ground claims that the RRT failed to consider the whole of the Applicant’s case, it does not provide any particulars.

Background

5. The Applicant arrived in Australia on 1st March 2008 and applied for a Protection (Class XA) visa on 25th March 2008. In a statement attached to her application, she claimed that she was a Falun Gong practitioner who had been illegally sentenced to a six-month term at a forced labour camp in early 2004. She claimed to have been beaten and tortured during that time.
6. The Applicant was invited to attend an interview with an officer of the Department of Immigration and Citizenship on 7th May 2008.[1] She did not attend the interview.
7. The Minister’s delegate refused the Applicant’s application for a protection visa the following day. The delegate noted that the Applicant did not attend the interview the day before and stated:
   • In the absence of an interview, I am unable to be satisfied that the applicant has a well founded fear of persecution for any of the Convention reasons.[2]
8. On 11th June 2008 the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. Although she gave a residential address in a suburb of Sydney, she nominated a postal address in Elizabeth Street in the Surry Hills area of Sydney as her address for correspondence[3].

Application to the Refugee Review Tribunal

9. On 25th June 2008 the Tribunal wrote to the Applicant and invited her to attend a hearing scheduled to take place on 24th July. The Applicant attended the hearing and gave evidence with the assistance of a Mandarin interpreter. She produced her passport issued by the People’s Republic of China.
10. The Tribunal signed its decision on 3rd September 2008 and handed the decision down on 4th September. The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.

The Refugee Review Tribunal Decision

11. In its Decision Record[4] the Tribunal set out the Applicant’s claims from the statement attached to the application for a protection visa and referred to the delegate’s decision to refuse to grant the visa as the Applicant did not attend the scheduled interview and the delegate was unable to be satisfied that the Applicant had a well founded fear of persecution.[5] The Tribunal then set out a detailed summary of the Applicant’s evidence at the Tribunal hearing. The Tribunal then referred to “Background Information” about Falun Gong and its history in China.[6]
12. In its “Findings and Reasons” the Tribunal accepted that the Applicant was a citizen of China, based on the Applicant’s Chinese passport. It noted that the Applicant claimed to fear persecution in China because she is a Falun Gong practitioner. The Tribunal accepted that the Applicant had a good understanding and knowledge of Falun Gong and that she had attended group study and practice sessions.
13. However, the Tribunal found:
    • The Tribunal has considered her claims and for the reasons set out below, including internal inconsistencies and implausibility in her evidence, the Tribunal finds that the applicant is not a Falun Gong practitioner and does not hold a genuine belief in, or commitment to, Falun Gong beliefs and practices.[7]
14. The Tribunal then set out these reasons:
    1. It found the Applicant’s claim to have been detained in Tianjin Forced Labour Camp for six months in 2004 to be a fabrication.[8]
    2. It found it implausible that, knowing of the dangers of practising Falun Gong, the Applicant would practise outside with a group in 2003.[9]
    100. It did not accept that the Applicant tried to commit suicide in 2005 because she could not practise Falun Gong.[10]
    4. The Tribunal found it implausible that, if the Applicant feared persecution in China for being a Falun Gong practitioner, she took over a month to leave China after the grant of her visitor’s visa to enter Australia.[11]
    5. The Tribunal also found it implausible that, if the Applicant left China because of the restriction on practising Falun Gong in public, it would take her approximately five years to leave from when she started practising in at home in 2003.[12]
15. The Tribunal referred to the Applicant’s participation in Falun Gong activities in Australia, including attending a public gathering of practitioners. The Tribunal stated:
    • However, the Tribunal is not satisfied that she engaged in those activities other then for the purpose of strengthening her claim to be a refugee by obtaining knowledge of Falun Gong. Therefore the Tribunal has disregarded that conduct.[13]
16. The Tribunal then went on to make this finding:
    • Given the Tribunal’s findings of rejecting her claims to practise Falun Gong in China and its findings as to her motivation for her conduct in Australia, it does not accept that the applicant is or was a Falu7n Gong practitioner. It follows that it does not accept that the applicant will face persecution for being a Falun Gong practitioner if she returns to China now or in the reasonably foreseeable future.[14]
17. The Tribunal was not satisfied that there was a real chance of the Applicant being persecuted if she returned to China and was therefore not satisfied that the Applicant had a well-founded fear of persecution within the meaning of the Convention.

Application for Judicial Review

18. The Applicant filed an application and affidavit in support on 23rd October 2008. She has not filed any amended application or any written outline of submissions. The Applicant attended Court and made oral submissions. Her three grounds of review are:
    • 1. I would be prosecuted if I go back to China because I am a Falun Gong practitioner.
    • 2. The Tribunal member should not deny that I was a Falun Gong practitioner.

3. The Tribunal failed to consider the whole of my case.

19. In answer to a question from the Bench about the third ground in her application, the Applicant said that in the course of the hearing she did tell the Tribunal about her experience of persecution in China because she had put it all in writing. The Member did not ask her any questions about it.
20. When asked if there were any parts that the Tribunal failed to consider, the Applicant said that when she was forbidden to practise Falun Gong she had the intention to commit suicide. She tried to cut her wrist. She said that she showed her wrist to the Tribunal Member but the Member did not believe her. The Applicant said that she did not know why the Tribunal did not believe her because what she said was the truth.
21. In a submission generally, the Applicant confined herself to reiterating her claim that she did not understand why the Tribunal did not believe her.

The First Respondent’s submissions

22. Mr Johnson, who appeared for the First Respondent, the Minister for Immigration and Citizenship, submitted that the Applicant’s first two grounds of review are not proper grounds of review.
23. The first ground, he submitted, goes to the merits of the Applicant’s claims to be a refugee. Mr Johnson submitted that the Applicant’s second ground complains that the Tribunal should not have denied that the Applicant was a Falun Gong practitioner, which again goes to the merits of the Tribunal’s decision.
24. As to the third ground in the application, Mr Johnson submitted that this ground broadly asserts that the Tribunal failed to consider the whole of the Applicants but does not provide any particulars. Without particulars, the ground is meaningless and does not identify any jurisdictional error.
25. However, Mr Johnson went on to submit that no error arose from the decision record on the basis of a misapplication of s.91R(3) of the Migration Act.
26. It was submitted that the Tribunal properly identified that the Applicant bore the onus of satisfying the Tribunal that her conduct was engaged in otherwise than for the purpose of strengthening her refugee claims (NAST v Minister for Immigration and Multicultural and Indigenous Affairs[15]).
27. It was further submitted that the Tribunal had made a primary finding of fact that the Applicant had engaged in conduct, the study of Falun Gong and other Falun Gong activities. The Tribunal was not satisfied that the Applicant engaged in this conduct other than for the purpose of strengthening her refugee claims, so it was obliged to disregard those activities (see SZJGV v Minister for Immigration and Citizenship[16]).
28. Mr Johnson submitted that the Tribunal, in disregarding the Applicant’s conduct, did not use any of that conduct in determining that the Applicant was not entitled to a protection visa. Rather, the Tribunal rejected the application on the basis that it was not satisfied as to the plausibility of the Applicant’s claim to have practised Falun Gong in China.[17]
29. However, Mr Johnson went on to submit that there could be a question as to whether the Tribunal should have drawn a clearer dichotomy between the Applicant’s conduct in studying Falun Gong and her knowledge of Falun Gong theory and practice. Whilst the Tribunal accepted that the Applicant had some knowledge of Falun Gong, there is no evidence that the Tribunal relied on that fact in making findings for or against the Applicant.
30. It was further submitted that the Tribunal’s finding did not transgress what the Full Court of the Federal Court had found in SZJGV. At its highest, the Tribunal was making reference to its own conclusions about the Applicant’s claims in China and her motivation for her conduct in Australia, which should not be considered as having regard to any conduct engaged in by the Applicant in Australia (see SZIYG v Minister for Immigration and Citizenship[18] at [22]).

Conclusions

31. The Applicant’s first ground of review claims that she would be prosecuted (she may mean “persecuted”) if she were to go back to China because she is a Falun Gong practitioner. This is just a re-statement of her claim to be a refugee, and it is a claim that the Tribunal has considered.
32. The ground is no more than an attempt at merits review of her claim to be a refugee, which a Court conducting judicial review has no power to consider. The Applicant’s first ground fails.
33. The Applicant’s second ground of review states that the Tribunal Member should not deny that the Applicant was a Falun Gong practitioner. Again, this is a claim that goes to the merits of the Tribunal decision on the Applicant’s refugee claim and the Court has no power to consider it.
34. The Applicant’s second ground fails.
35. The Applicant’s third ground claims that the Tribunal failed to consider the whole of her case. It was not apparent that the Tribunal had overlooked any part of the Applicant’s claims so she was asked to explain that claim at the hearing. The Applicant’s answer was restricted to a complaint that the Tribunal did not believe her evidence, which does not establish the ground at all. It is no more than a re-statement of the Applicant’s second ground.
36. The Applicant’s third ground has not been made out.

Is there a section 91R (3) issue?

37. The solicitor for the Minister, no doubt mindful of the need for the Minister to be a model litigant, has raised the question of whether the Tribunal failed to comply with s.91R (3) of the Migration Act in its findings and reasons.
38. The Tribunal stated:
    • Given the Tribunal’s findings of rejecting her claim to practise Falun Gong in China and its findings as to her motivation for her conduct in Australia, it does not accept that the applicant is or was a Falun Gong practitioner.[19]
39. The concern expressed is that the reference to the Tribunal’s findings at to the Applicant’s motivation for her conduct in Australia may constitute a breach of s.91R (3).
40. The sub-section says:
    • (3) For the purposes of the application of this Act and the regulations to a particular person:
      • (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol:
        • disregard any conduct engaged in by the person in Australia unless:
      • (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
41. The way to approach this matter is set out in the decision of the Full Court of the Federal Court in SZJGV v Minister for immigration and Citizenship[20] where Spender, Edmonds and Tracey JJ held at [22]:
    • We accept the Minister’s submissions that s.91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application. If it has occurred then consideration must be given to the requirements of s.91R(3). We do not understand the appellants to contend otherwise. Their submissions do, however, overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account “at all” in deciding the application. As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account. Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s.91R(3) is engaged. Once engaged, s.91R(3) precludes the decision maker from having regard to “any conduct” engaged in by the applicant in Australia unless the decision maker is satisfied the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s.91R(3).[21]
42. Mr Johnson submits that the Tribunal’s finding does not transgress what the Full Court found in SZJGV because the Tribunal was only making reference to its own conclusions and not having regard to any conduct by the Applicant in Australia. He relies on the decision of Tracey J in SZIYG v Minister for Immigration and Citizenship[22] for support.
43. In SZIYG, Tracey J considered whether a finding by the Tribunal had contravened s.91R(3). His Honour said at [20]:
    • On reading the Tribunal’s reasons I was, initially, concerned that the Tribunal may have contravened s 91R of the Act by taking into account certain conduct of the appellant while in Australia. The relevant passages of the Tribunal’s reasons read as follows:
      • “The Tribunal finds that the applicant only attended five or six services at a church in Guildford for no other reason than to gain some information about the Christian religion, to assist his application for protection...
    • The Tribunal is not satisfied that the applicant would suffer any harm if returned to China because of his real or imputed religious beliefs. Having found that the applicant attended Church services in Australia only for the purposes of enhancing his claims for protection, the Tribunal finds that, were he to return to China, the applicant would not be motivated to join an underground church or practice (sic) Christianity.” (Emphasis added).[23]
44. His Honour went on to say:
    • My concern was that the Tribunal may have relied on the appellant’s occasional Church attendance in Australia to support its conclusion that he was not a refugee.
      • [22] On reflection, I do not consider that the Tribunal reasoned in this way. Before the Tribunal made the italicised observation it had already concluded that the appellant had not been a practising Christian in China. That being so it was hardly likely that he would join an underground Church or practise Christianity upon return to that country. At best for the appellant the Tribunal’s reference to his Church attendance in Australia constituted an additional reason to support the conclusion to which the Tribunal had already come. It may be, however, that the Tribunal was doing no more than restating its earlier conclusion that the appellant had attended Church in an effort to enhance his claim for protection.[24]
45. In deciding whether or not the Tribunal in the case under review breached the provisions of s.91R(3), it is necessary to examine the Tribunal’s words carefully in the light of the findings impugned or upheld in SZJGV and SZIYG. It can be seen that the distinction is a fine one.
46. The Full Court decision in SZJGV dealt with two appeals from the Federal Magistrates Court (SZJGV v Minister for Immigration and Citizenship and SZKBK v Minister for Immigration and Citizenship) and one application for leave to appeal (SZJXO v Minister for Immigration and Citizenship). They were all heard together. An examination of the relevant parts of the Tribunal’s reasons is helpful.
47. In SZJGV, the Tribunal had said:
    • Third, the totality of the [appellant’s] oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose. In reaching this view the Tribunal has had regard to his lack of knowledge about Falun Gong, his recent attempts to construct a profile of a Falun Gong practitioner for himself...in view of the [appellant’s] overall credibility...
    • The Tribunal disregards the [appellant’s] Falun Gong related activities in Australia.[25]
48. In SZKBK, the Tribunal had said;
    • The Tribunal is of the view that the [appellant’s] failure to be baptised and her failure to attend Church in Australia with any degree of regularity indicate that the [appellant] is not a committed Christian...
    • The Tribunal questioned the [appellant] about the denomination of the church she was attending in Australia. The [appellant] stated that she was not sure but it was not the Seventh Day Adventists Church. While the [appellant] said that she minded attending a different church, she did not appear to have taken any active steps to locate the Seventh Day Adventists Church.
    • The Tribunal also finds that, to the extent that the [appellant] had engaged in any religious practice in Australia, she had done so for the purpose of strengthening her claims of being a refugee within the meaning of the Convention. The Tribunal disregards such conduct in accordance with s.91R(3).”(Emphasis added).[26]
49. In my view, the two examples above show a very clear breach of s.91R(3) by the Tribunal where the conduct was considered by the Tribunal whilst being said to be disregarded.
50. In SZJXO, the Tribunal had said:
    • Given my findings about the nature and motives for his contacts with Falun Gong in Australia I am not satisfied that there is any reason to believe he would become a Falun Gong practitioner if he returned to China or that he would have any significant involvement with the Falun Gong faith there. I am not satisfied there is any reason to believe he would suffer harm in China in future for this reason.” (Emphasis added).[27]
51. In my respectful view, there is only a fine distinction between the above finding and that which was not impugned in SZIYG, where the Tribunal said:
    • “Having found that the applicant attended Church services in Australia only for the purposes of enhancing his claims for protection, the Tribunal finds that, were he to return to China, the applicant would not be motivated to join an underground church or practice (sic) Christianity.” (Emphasis added).[28]
52. By comparison, the Tribunal’s finding in the decision under review is:
    • Given the Tribunal’s findings of rejecting her claims to practise Falun Gong in China and its findings as to her motivation for her conduct in Australia, it does not accept that the applicant is or was a Falun Gong practitioner.[29]
53. In my view, the Tribunal’s finding is essentially the same as the finding held to be a breach of s.91R(3) in SZJXO. Whilst there may appear to be only a fine distinction between this finding and that which was found not to constitute a breach in SZIYG, I nevertheless take the view that the decision in SZIYG should be distinguished.
54. Accordingly, following SZJGV v Minister for Immigration and Citizenship, I find that the Tribunal in the decision under review contravened s.91R(3) and thereby erred in law. This constitutes jurisdictional error. Jurisdictional error vitiates the decision (Plaintiff S157/2002 v Commonwealth of Australia[30]).
55. Thus, the application for judicial review must be granted. Accordingly, orders in the nature of certiorari and mandamus will issue.
56. I will consider the question of cost.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 29 April 2009

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[1] Court Book 32
[2] Court Book 39
[3] Court Book 42
[4] See Court Book 57 - 71
[5] Court Book 61
[6] Court Book 66 - 67
[7] Court Book 67 at [68]
[8] Court Book 68 at [69]
[9] Ibid at [70]
[10] Ibid at [71]
[11] ibid at [72]
[12] Court Book 69 at [73]
[13] Ibid at [75]
[14] Ibid at [76]
[15] [2002] FCA 1536
[16] [2008] FCAFC 105
[17] Court Book 69 at [76]
[18] [2008] FCA 1143
[19] Court Book 69 at [76]
[20] [2008] FCAFC 105
[21] [2008] FCAFC 105 at [22]
[22] [2008] FCA 1143
[23] [2008] FCA 1143 at [20]
[24] [2008] FCA 1143 at [21]- [22]
[25] [2008] FCAFC 105 at [3]
[26] [2008] FCAFC 105 at [7]
[27] [2008] FCAFC [5]
[28] [2008] FCA 1143
[29] Court Book 69 at [76]
[30] (2003) 211 CLR 476