SZMRP v Minister for Immigration & Anor [2009] FMCA 91 (12 February 2009)

Last Updated: 17 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 91

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal failing to make findings regarding the applicant’s conduct in Australia required for the purposes of s.91R(3) of the Migration Act 1958 (Cth) – jurisdictional error established – whether the Court should withhold relief in the exercise of discretion considered.

Migration Act 1958 (Cth), s.91R(3)

SZGDJ v Minister for Immigration [2008] HCASL 479 SZHFE v Minister for Immigration (No 2) [2006] FCA 648 SZIZO v Minister for Immigration [2008] FCAFC 122 SZJGV v Minister for Immigration [2008] FCAFC 105 SZJHG v Minister for Immigration [2007] FMCA 2050 SZJZN v Minister for Immigration [2008] FCA 519 SZLWI v Minister for Immigration [2008] FCA 1330 SZMAN v Minister for Immigration [2008] FMCA 1351 SZMEQ v Minister for Immigration [2008] FMCA 1316

Applicant:

SZMRP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2194 of 2008

Judgment of:

Driver FM

Hearing date:

12 February 2009

Delivered at:

Sydney

Delivered on:

12 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal signed on 30 June 2008 and handed down on 29 July 2008.
(2) A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application according to law.
(3) The first respondent is to reimburse to the applicant the filing fee in the sum of $374 paid by him.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2194 of 2008

SZMRP

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 Tribunal decision was handed down on 29 July 2008. The Tribunal affirmed a decision of the 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. Background facts relating to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's initial written submissions filed on 10 November 2008. I adopt as background for the purposes of this judgment paragraphs 3 to 14 of those written submissions:
   • The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 7 February 2008.[1] He lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship ("the Department") on 12 February 2008.[2]
   • By letter dated 1 April 2008, the Department invited the applicant to an interview with a Departmental officer on 11 April 2008.[3] On the scheduled date, the Department contacted the applicant by telephone to confirm his attendance and rescheduled the interview to suit the applicant's requirements.[4] However, the applicant failed to attend the interview[5] and on 21 April 2008 a delegate of the first respondent refused the visa application.[6]
   • On 1 May 2008 the applicant lodged an application with the Tribunal for review of the delegate's decision[7] and on 25 June 2008 the applicant attended a hearing before the Tribunal.[8]
   • On 29 July 2008 the Tribunal handed down its decision, affirming the delegate's decision. The applicant attended the handing down of the decision.[9]
   • Claims
   • The applicant claimed to fear persecution in China on the basis of his practice of Falun Gong. He claimed that he had been arrested and detained by the Public Security Bureau and that he was assaulted during his detention. As a result of his injuries, his work duties were substantially reduced when he returned to his work in a factory.
   • The applicant feared that he would be imprisoned if he returned to China, as there was a detention warrant against him. The authorities would be looking for the applicant's copy of the Zhuan Falun, which had been produced by his cousin who had taught the applicant the Falun Gong exercises and had also been detained. As a Falun Gong activist, it would also be difficult for the applicant to find another job in China.[10]
   • In response to a question asked by the Tribunal, the applicant stated that he had practised Falun Gong in Australia, at Central and Parramatta.[11]
   • Tribunal decision
   • The Tribunal did not accept that the applicant was, or ever had been, a Falun Gong practitioner and found that the applicant did not hold a genuine belief in, or commitment to, Falun Gong. It considered that a genuine practitioner would have greater knowledge and would at least know the fundamentals of Falun Gong. It was implausible that when the applicant first became involved with Falun Gong he was not aware that the exercises he was performing were Falun Gong exercises, or that the movement was banned.[12]
   • The Tribunal also did not accept that the applicant was detained. The applicant's account of his detention and the reasons for it were unpersuasive and the Tribunal did not accept that he had a copy of the Zhuan Falun hidden in his house or that the authorities were looking for it.
   • The Tribunal considered the photographs the applicant submitted to the Department with his protection visa application.[13] In the absence of further evidence, and given its concerns with other aspects of his evidence, the Tribunal was not satisfied that the applicant's injuries as depicted in the photographs occurred as a result of an assault by a guard in detention.[14]
   • The Tribunal considered the applicant's claimed Falun Gong practice in Australia and found that there was no evidence that the Chinese authorities would persecute someone who practised Falun Gong in Australia. Even if he did come to the attention of the authorities because of his activities in Australia, the country information before the Tribunal indicated that ordinary followers might be lectured to by authorities. Having regard to its finding that the applicant did not have a genuine commitment to Falun Gong, the Tribunal did not accept that this would constitute serious harm amounting to persecution.[15]
   • As the Tribunal found that the applicant was not a genuine or committed Falun Gong practitioner, it did not accept that the applicant would practise Falun Gong if he returned to China.[16]
2. These proceedings began with a show cause application filed on 25 August 2008. The application is supported by a short affidavit filed on the same day, which I received as a submission. I dealt with the grounds in that application at a show cause hearing on 17 November 2008. I formed the view then, and I confirm now, that there is no substance to the grounds advanced in the application. I agree with and adopt for the purposes of this judgment, with amendments, paragraphs 15 to 21 of the Minister's initial written submissions:
   • The application filed on 25 August 2008 contains two grounds as follows:
     • 1. [Tribunal] did not weigh my evidence. They did not consider all documents I provided. It is not fair they refused my application. They only use the failed cases to be against me.
     • 2. Procedural Fairness has been denied by [Tribunal].
   • Ground 1
   • The first ground of review does not identify any error in the Tribunal decision.
   • It is not clear what the assertion that the Tribunal "did not weigh" the applicant's evidence means. On its own, it does not identify an error. Insofar as it might relate to the subsequent statement that the Tribunal did not consider all the documents the applicant provided, the latter assertion is not particularised and cannot be made out without further evidence.
   • The Tribunal clearly considered the photographs submitted by the applicant to the Department.[17] It was open to the Tribunal to find that it was not satisfied that the photographs proved the claimed reasons for the applicant's injuries. Apart from the protection visa application and the application to the Tribunal, there is nothing in the evidence before the Court to indicate that the applicant submitted any further documents to the Department or the Tribunal.
   • In the absence of particulars, the assertion that the Tribunal only used "failed cases" against the applicant is meaningless and does not disclose jurisdictional error.
   • Ground 2
   • The bare assertion in the second ground of review, which is unsupported by particulars of any breach of the statutory procedural fairness requirements, is not made out.
3. However, at the show cause hearing, I ordered the Minister to show cause why relief should not be granted in relation to the issues of whether the Tribunal breached s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”) by:
   1. failing to make any finding of fact in relation to the applicant’s activities in Australia;
   2. failing to make any finding pursuant to s.91R(3) of the Migration Act in relation to those activities; or
   100. in the alternative, proceeding on the assumption that the activities asserted by the applicant in Australia had occurred and were engaged in for a reason other than to enhance the applicant’s protection visa claims, when that assumption was not open to the Tribunal on the information before it.
4. I also made procedural orders requiring the filing of submissions. Only the Minister complied with those orders. The applicant sought at the hearing before me today to rely upon a further affidavit filed on
   18 November 2008. That affidavit is directed at corroborating the applicant's asserted practice of Falun Gong in Australia. I declined to receive it as it was not relevant to the issues to be resolved at this hearing. The applicant also produced further documents at the bar table which he said supported his claim to be a Falun Gong practitioner. I declined to receive those documents for the same reason. The only evidence I have before me is the book of relevant documents filed on 24 September 2008.
5. On 3 February 2009 the Minister filed further written submissions directed at the issues raised at the show cause hearing. I incorporate in this judgment paragraphs 2 to 7 of those submissions:
   • The first respondent submits that the Tribunal did not breach s 91R(3) for the following reasons:
   • Failure to make a factual finding or a finding pursuant to s 91R(3)
   • The first respondent acknowledges that the Tribunal did not make a clear finding of fact as to whether the applicant attended Falun Gong practice in Australia. The first respondent also acknowledges that the Tribunal did not make a finding pursuant to s 91R(3) of the Act in relation to the claimed conduct.
   • The first respondent submits, however, that the Tribunal's failure to make such findings did not, in the circumstances of this case, amount to a breach of s 91R(3) because the section was not enlivened in relation to the alleged conduct.
     • In SZJGV v MIAC [2008] FCAFC 105 at [22] the Full Federal Court stated that the Tribunal is required to make primary findings of fact prior to applying s 91R(3) to particular conduct. It also stated that:
       • 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.
     • The Tribunal cannot be entitled to circumvent the operation of s 91R(3) simply by failing to make a primary finding of fact as to whether conduct in Australia occurred, although it is not certain that a failure to make a finding of fact could, in itself, amount to jurisdictional error.
     • However, not all conduct in Australia will enliven s 91R(3). It is submitted that the Tribunal is only required to make factual findings in relation conduct in Australia where that conduct is capable of enlivening the operation of s 91R(3) if the applicant in fact engaged in it.
     • A corollary is that, although the Tribunal must make findings of fact prior to applying 91R(3), ie, disregarding the conduct in Australia unless satisfied that it was engaged in otherwise than for the purpose of strengthening the applicant's refugee claims, it is not required to make these findings prior to determining whether s 91R(3) would be enlivened in relation to that conduct if it had occurred.
     • Authority supports the construction that s 91R(3) is not engaged where the applicant only mentions conduct in Australia in response to a question of the Tribunal (SZMEQ v MIAC [2008] FMCA 1316 at [79]-[80]), and does not seek to rely on their conduct in support of a claim to have a well-founded fear of persecution (SZHFE v MIMIA (No 2) [2006] FCA 648 at [30]; SZGDJ v MIAC [2008] HCASL 479 at [5]; SZMEQ at [78]).
     • The applicant did not raise any claims about practising Falun Gong in Australia of his own accord, and only claimed that he practised at Central and Parramatta in response to the Tribunal's question ([51] of the Tribunal decision). There is no other evidence that the applicant sought to rely on the conduct as part of his claim. Nor is there any evidence that the applicant claimed a subjective fear of persecution in China by reason of his alleged practice of Falun Gong in Australia.
     • Accordingly, the first respondent submits that the alleged Falun Gong practice in Australia did not engage s 91R(3) and therefore this section did not require the Tribunal to make a finding of fact, or a finding as to the applicant's motives, in relation to it.
   • Discretion to refuse relief
   • If, contrary to the above submissions, the Court finds that the Tribunal breached s 91R(3), the first respondent submits that the Court should exercise its discretion to refuse relief because the breach did not affect the outcome of the Tribunal decision (see SZLWI v MIAC [2008] FCA 1330 at [45]; SZJZN v Minister for Immigration and Citizenship [2008] FCA 519 at [41]; SZMAN v Minister for Immigration and Citizenship [2008] FMCA 1351 at [31]- [38]; SZJHG v Minister for Immigration and Anor [2007] FMCA 2050 at [47]- [48]).
   • The Tribunal took into account the applicant's conduct in Australia in the context of considering a possible sur place claim which was not articulated by the applicant, to the applicant's benefit. The Tribunal did not rely on the conduct in Australia to find against the applicant and would have come to the same conclusion if it had made a s 91R(3) finding and disregarded the conduct. The Tribunal's adverse findings in respect of the applicant's conduct in China would independently support the Tribunal's conclusions on the question of future persecution (see SZLWI at [45]).
   • The strict approach taken by the Court in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 was in the context of the application of the procedural fairness provisions and is not applicable in the context of s 91R(3) (see SZMAN at [37]).
6. In oral submissions, counsel for the Minister conceded that the Tribunal had not made a clear finding of fact in relation to the question of whether the applicant had engaged in conduct in Australia relating to the practice of Falun Gong. Counsel further conceded that the Tribunal had made no express finding, pursuant to s.91R(3) in relation to the applicant's activities in Australia. Counsel also took the view that, while it might be arguable that the Tribunal had, by implication, made some finding for the purposes of s.91R(3), the better view was that it had not done so, because a finding either way would be hard to reconcile with the Tribunal's reasons. The nub of the Minister's submissions is that the Tribunal did not commit jurisdictional error in this case, because s.91R(3) was not engaged. The Minister relies in particular on a decision of this Court, in SZMEQ v Minister for Immigration [2008] FMCA 1316 at [79]:
   • In the present case, the applicant merely gave evidence about his practice of Falun Gong in Australia in response to questions put to him by the Tribunal as is demonstrated by the above summary of the exchange of questions and answers. He simply answered the Tribunal’s questions as to his conduct in Australia, but did not otherwise claim to hold fears arising from that conduct. The Tribunal thus made no finding in respect to 91R(3). The statutory obligation on a Tribunal to disregard an applicant’s conduct in Australia (unless the applicant satisfies it that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee), was not thereby activated in this case.
7. Further support for the minister's submissions may be found in the decision of the Federal Court in SZHFE v Minister for Immigration (No 2) [2006] FCA 648 and by the High Court in SZGDJ v Minister for Immigration [2008] HCASL 479.
8. I accept the general proposition that s.91R(3) is not engaged where an applicant makes no claims concerning conduct in Australia in support of a protection visa application. For example, an applicant may be entirely silent in relation to conduct in Australia, both orally and in writing. In such circumstances, it is possible that a Tribunal may, nevertheless, obtain information in relation to an applicant's conduct in Australia, for example, pursuant to s.424. In those circumstances the Tribunal would be bound to take that information into account and s.91R(3) would not be engaged. There may also be circumstances, as was the case in SZMEQ, where what is said by an applicant in response to questions from the Tribunal at a hearing is insufficient to amount to any sort of claim necessary to engage s.91R(3). However, that proposition must be treated with caution. An applicant's claims may be made in writing or orally. Relevant claims may be volunteered by an applicant, or may emerge in response to questions from the Tribunal. There is a risk that, by going down the path urged by the Minister and as adopted by this Court in SZMEQ, fine and elusive distinctions may need to be drawn, based on evidence of what occurred at a Tribunal hearing.
9. In the present case, the applicant, in his written claims,[18] stated that he decided to come to Australia to seek protection in order to continue practising Falun Gong. The applicant did not assert in his written claims that he did practise Falun Gong in Australia, but such a claim may be implicit. At the hearing the presiding member questioned the applicant about any practice of Falun Gong in Australia[19]:
   • The Tribunal asked the applicant if he had been involved in any Falun Gong activities since he had been in Australia and he claimed that he practiced at Central and also at Parramatta. When asked how many times he attended the applicant was evasive. The Tribunal put to the applicant the provisions of s.91R(3) of the Migration Act required the Tribunal to disregard activities engaged in solely for the purpose of supporting a refugee application. The applicant told the Tribunal that the fact was that he practiced Falun Gong in China and was mistreated. He claims he was discriminated against at work and his life was very hard. He claims that in Australia he sees a lot of people practice Falun Gong and a lot of people support them. He claims that if he practiced Falun Gong like that in China he would have been arrested a long time ago.
10. It is noteworthy that the presiding member referred to s.91R(3) at that point in the hearing. It is unclear whether, by referring to the section, the presiding member was simply seeking to inform the applicant of the legislative framework within which the Tribunal operated or whether the Tribunal considered at that point that the section was, or was likely to be, engaged. If the latter, then the failure by the Tribunal to deal with the issue in its reasons is inexplicable.
11. I accept counsel for the Minister's submission that, based upon the record of what the applicant said at the hearing, he was not making a sur place claim. However, on my reading of paragraph 51 of the Tribunal's reasons, the applicant was seeking at the Tribunal hearing to corroborate his claims to have been a Falun Gong practitioner in China by referring to his practice in Australia. In doing so, he was seeking to support his protection visa application. It is on that basis that I distinguish this case from SZMEQ. The Full Federal Court, in SZJGV v Minister for Immigration [2008] FCAFC 105, accepted that s.91R(3) is engaged not simply in relation to sur place claims but also in relation to conduct in Australia that is intended to have a corroborative effect.
12. The Tribunal dealt with the applicant's activities in Australia at paragraph 64 of its reasons[20]:
    • The applicant claims that he has attended Falun Gong practice since his arrival in Australia but was evasive as to how often he attended. There is no evidence that the Chinese authorities consider that someone who practiced Falun Gong in Australia would be persecuted by them. The country information above indicates that, even if he comes to the attention of the authorities, ordinary followers of Falun Gong may be lectured to by Chinese authorities and urged to renounce their ways. Having regard to the Tribunal’s finding above, that the applicant does not have any genuine commitment or belief in Falun Gong, the Tribunal does not accept that this conduct would constitute “serious harm” amounting to persecution.
13. His activities in Australia were referred to tangentially, in addition, in paragraph 65[21]:
    • The applicant claims that he will be persecuted in China if he returns because of his Falun Gong beliefs and practice, however as the Tribunal has found that the applicant is not a genuine or committed Falun gong practitioner, it follows that the Tribunal does not accept that the applicant will practice Falun Gong if he returns to China. Furthermore, the country information above indicates that, even if he comes to the attention of the authorities because of his Falun Gong activities in Australia, ordinary followers may be lectured to by Chinese authorities and urged to renounce their ways. Having regard to the Tribunal’s finding that the applicant does not have any genuine commitment to Falun Gong, the Tribunal does not accept that this conduct would constitute “serious harm” amounting to persecution.
14. In my view, in the circumstances of this matter, the section was engaged. By failing to make any clear factual finding in relation to whether or not the applicant had engaged in the activities in Australia he referred to at the hearing and by failing to make any finding pursuant to s.91R(3), the Tribunal committed jurisdictional error. Prima facie, therefore, the applicant is entitled to the relief he seeks.
15. The Minister submits that the Court should exercise its discretion to withhold relief because if the applicant's conduct in Australia had been disregarded, as required by the Act, the outcome would have been the same. Further, the Tribunal took into account the applicant's conduct in Australia in the context of considering a possible sur place claim which was not in fact made by the applicant. I accept that if the Tribunal had made a lawful decision the outcome would have been the same. I also accept that the error made by the Tribunal operated to the applicant’s benefit. On the other hand, I take into account that the applicant now claims to have additional material to support his claims to be a Falun Gong practitioner, both in China and in Australia. Applicants are entitled to expect that their claims will be dealt with lawfully by the Tribunal. It is likely that, if the matter is remitted to the Tribunal, the Tribunal will be able to make a more informed decision based upon the additional material which the applicant now has available.
16. In all the circumstances, I have decided not to exercise my discretion against the applicant. I will order that a writ of certiorari issue, quashing the decision of the Refugee Review Tribunal signed on
    30 June 2008 and handed down on 29 July 2008. I will also order that a writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application according to law.
17. As to costs, the applicant is self-represented and has not incurred any legal costs. He has paid a filing fee of $374, for which he should be reimbursed. The applicant was also liable to pay a setting-down fee, but has not paid it. I do not know whether, if the applicant had made a request for waiver of that fee, it would have been waived. In the circumstances I will make no order in relation to the setting-down fee. I will order that the first respondent is to reimburse to the applicant the filing fee in the sum of $374 paid by him.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 February 2009

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[1] Relevant Documents (“RD”) at 64.
[2] RD at 1-28.
[3] RD at 32-33.
[4] RD at 34.
[5] RD at 35.
[6] RD at 38-48.
[7] RD at 49-52.
[8] RD at 60-61.
[9] RD at 68-85.
[10] RD at 18-21, 80-82.
[11] See Tribunal decision at [51], RD at 82.
[12] Tribunal decision at [57]-[60], RD at 83.
[13] See photographs at RD 28.
[14] Tribunal decision at [61]-[63], RD at 84.
[15] Tribunal decision at [64]-[65], RD at 84.
[16] Tribunal decision at [65], RD at 84.
[17] See [62] of the Tribunal decision, RD at 84.
[18] RD 18
[19] Tribunal decision at [51], RD82
[20] RD 84
[21] RD 84