SZGHP v Minister for Immigration and Citizenship

The Tribunal disregarded the applicants' Falun Gong practice in Australia by applying s 91R(3). The Tribunal's finding that the applicants engaged in such Falun Gong activities for the purpose of strengthening their refugee claims is affected by prejudice. The applicant claimed that he did not engage in Falun Gong activities in Australia for the purpose of strengthening his refugee claims. He is a genuine Falun Gong practitioner and even though his application has been rejected by the RRT, he still continued to practise Falun Gong.

4 Neither ground of appeal is made out. 5 At the outset of the proceedings today, reference was made to a document apparently forwarded to this Court by the Appellants but not received by it. Notwithstanding that difficulty, the statement was read to the Court by the interpreter. It substantially repeated the factual contentions set forth in paras 1 and 2 of the Notice of Appeal. No objection was made by the First Respondent to the Court proceeding upon the basis that this further material could be taken into account.

The factual background 6 The factual background to the present proceeding is within a limited compass. The Appellants, husband and wife, are citizens of the People's Republic of China who arrived in Australia on 2 October 2004. The Appellant husband claims to be a Falun Gong practitioner in the People's Republic of China and further claims he was detained after practising at home. The facts concerning his application are more fully set forth in the reasons of the Tribunal published on 23 February 2007 and need not be repeated.

The first ground of appeal. 7 As correctly pointed out by counsel for the First Respondent the first ground of appeal has two limbs, namely: (1) the contention that the Refugee Review Tribunal failed to take into account a statement submitted by the Appellants on 20 February 2007; and (2) that by "reaching" its findings the Tribunal impermissibly made findings of fact. The first limb is to be summarily rejected. There is no doubt that the Tribunal did in fact take into account the statement on 20 February 2007. The Tribunal, in its reasons for decision, set forth at para 22 of the reasons the material that it took into account. Included within those materials was the statement dated 20 February 2007. 8 The Tribunal thereafter made repeated references to this statement. Reference may be made to paras 33, 36, 39, 40 and 41 of its reasons. Not only did the Tribunal refer to the statement when summarising the materials it took into account; when it made its findings and reasons it again referred to the statement of 20 February 2007. 9 Insofar as the second limb to ground one is concerned, the Federal Magistrate adopted the submissions then made as to the approach taken by the Tribunal. The conclusion of the Federal Magistrate was that the Tribunal did not find the Appellants to be credible witnesses. As pointed out by the Federal Magistrate, and as is apparent from the reasons of the Tribunal, the Tribunal relied upon inconsistencies relating to: (a) the events alleged to have occurred in Beijing in 2000; (b) the events alleged to have occurred in Guangzhou in 2000, being the events as to the arrest and detention of the First Appellant; (c) the search of the Appellants' home; and (d) the Appellants' claims as to being detained in 2002. 10 Those findings as to credit made by the Tribunal were findings which were open to it on the materials then available. It is no part of the function of this Court, nor is it a function of the Federal Magistrates Court, to review the factual merits upon which a decision is made. Reliance by the Appellants upon the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, 93 FCR 220 is misplaced. Sackville J, with whom North J agreed, there referred to earlier decisions of the High Court including Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22, 191 CLR 559. His Honour continued: [64] In my view there is no reason in principle and nothing in the reasoning of the High Court supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself the findings were not expressed in this way yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover had the court intended to impose such an extraordinary burden upon the RRT it might have been expected to say so. [65] Nor do I think there is anything in the reasoning of the High Court which permits a Court exercising powers of judicial review to 'impute' to the RRT or other administrative decision-maker a lack of conviction or confidence in its findings of fact such as to warrant a holding that the RRT should not, or could not have relied on those findings to hold that the applicant's fear of persecution was not well founded. To take this course on the basis that the court's own assessment of the evidence before the RRT is to enter the territory of merits review. It is one thing to find error in a decision-makers failure to apply the correct legal test or to comply with statutory obligations. For example to set out findings on material questions of fact as required by Migration Act section 430(1)(c), it is another to decide what factual findings the RRT should or should not have made. Kenny J reached a like conclusion as to both the law and its application to the facts then before the court: see [1999] FCA 719 at [148]-[149]. 11 There is no ambiguity, doubt or hesitation in the findings made by the Tribunal in the present proceedings. Each finding was open to it. Accordingly the first ground of appeal is dismissed.

The second ground of appeal. 12 The second ground is the claim of prejudice. 13 The Tribunal properly disregarded the First Appellant's conduct subsequent to arrival in Australia. The Tribunal relevantly stated: [67] … The Tribunal also finds that the applicants have only participated in Falun Gong exercises and handed out Falun Gong newspapers in Australia to strengthen their claims to be refugees within the meaning of the Convention. Therefore, pursuant to s 91R(3) the Tribunal is obliged to disregard the applicants' practise of Falun Gong and their handing out of Falun Gong newspapers in Australia. Further, the Tribunal also finds that if the applicants return to PRC in the future they will not practise Falun Gong. The Tribunal in its letter of 9 February 2007 stated that due to the inconsistencies in statements made to the department and the Tribunal, and at the hearings of the Tribunal, my [sic] find that the applicants conduct in Australia was for the purposes of strengthening their claims to be refugees within the meaning of the Convention. In reaching the above finding the Tribunal has taken into account the first applicant's response in the fifth statement. 14 The "fifth statement", it may be noted, was the statement earlier referred to of 20 February 2007. Again, these findings are findings of fact open to the Tribunal to have reached and not susceptible to judicial review. Nor is jurisdictional error normally exposed by mere factual error: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [35] per McHugh J, 177 ALR 473.An allegation that an administrator, or in this case the Tribunal, is prejudiced or biased or shows a lack of good faith must be made distinctly and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], 205 CLR 507. This has not been done in the present appeal. Moreover, the reasoning of the Tribunal does not, it is considered, expose any prejudice or bias. The reasoning of the Tribunal only demonstrates that the Tribunal kept an open mind throughout. 15 Accordingly, the second ground of appeal is also dismissed. ORDERS 16 The orders of the Court are:

1. The Appeal is dismissed.
2. The Appellants pay the First Respondent's costs of and incidental to the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Solicitor for the Respondent: Mr Ishan Muithalil, Blake Dawson