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[2008] FCA 1195
Federal Court of Australia
2008-08-11
Middleton J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal against an order of a Federal Magistrate of 24 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') signed on 10 September 2007 and handed down on 18 September 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellants.
BACKGROUND 2 The appellants are husband and wife, and citizens of China, who arrived in Australia on 1 May 2005. On 6 May 2005 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 13 August 2005. A previous decision of the Tribunal signed on 22 December 2005 was quashed by order of the Federal Magistrates Court. On 16 April 2007 the Federal Magistrates Court remitted the matter to the Tribunal to be determined according to law. The Tribunal, differently constituted, affirmed the delegate's decision on 18 September 2007. 3 Before the Tribunal, the appellants essentially claimed that they were persecuted in China due to their practice of Falun Gong, and the Government's 'one child' policy.
TRIBUNAL DECISION 4 After discussing the claims made by the appellants and the evidence before it, the Tribunal found that it was not satisfied that the appellants were persons to whom Australia has protection obligations under the Refugees Convention. 5 The Tribunal did not accept that the first appellant's level of knowledge of Falun Gong principles was commensurate with that of a Falun Gong practitioner with seven years' experience. It was not satisfied that the appellants were Falun Gong practitioners during the previous seven years given that the first appellant was not familiar with basic Falun Gong principles and practices. The Tribunal did not accept the first appellant's explanation that the appellants were not very good at socialising since they would have learnt at least some of the basic principles and exercises if they had a true commitment to Falun Gong. Nor did the Tribunal accept that the appellants practised Falun Gong every day in Australia. Consequently, the Tribunal did not accept that the appellants were arrested by authorities in China because of their Falun Gong practice or that the first appellant was required to write a repentance letter. 6 The Tribunal accepted that the appellants were not allocated housing, lost job opportunities, could not obtain a licence for their business and had to pay fines because they had had four children as this accorded generally with independent country information about families who had breached the one child policy. However, the Tribunal also had concerns about the evidence relating to the appellant wife's sterilisation procedure and subsequent check-ups. Nonetheless, the Tribunal accepted that the appellant wife had the sterilisation operation and was required in the past to have gynaecological check-ups to ensure that she could no longer have children, and it accepted that it was possible that the appellants could be members of several particular social groups. However, the Tribunal was satisfied that any harm which the appellant wife suffered was not for reasons of her membership of any such group but as a consequence of China's one child policy which applied to all Chinese nationals and was a non-discriminatory law of general application. Consequently, the Tribunal was satisfied that any harm suffered by the appellants would not amount to persecution as stipulated by the Convention, and that there was no evidence that the appellants or their children would suffer any other kind of harm on the appellants' return to China.
THE COURT BELOW 7 In an application for judicial review before the Federal Magistrate the appellants claimed that: 1. There was an error of law in the Tribunal's decision constituting a jurisdictional error. 2. There was procedural error in the Tribunal's decision constituting an absence of natural justice. 8 At the hearing the appellants raised the following additional matters: 1. The second appellant did not agree with the decision of the Tribunal; 2. The Tribunal's decision was not reasonable, he had been telling the truth about his commitment to Falun Gong, and the Tribunal's 'interrogation' was unfair and unreasonably lengthy. 9 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellants, dismissed the application (see SZIIS v Minister for Immigration [2008] FMCA 470). His Honour found that it was apparent that the Tribunal's decision was based on a factual analysis of the claims made by the appellants which led to the conclusion that, in many respects, those claims could not be accepted. The factual findings which the Tribunal made were held to be reasonably open to it. 10 His Honour also found that there was no breach of Div 4 of Pt 7 of the Migration Act 1958 (Cth) ('the Act') - with a particular examination of ss 424A and 425 - which was apparent from a consideration of the Tribunal's decision record. In particular, there was no basis to conclude that the appellants were overborne or prevented from exercising their s 425 rights because of what the first appellant described as their 'interrogation' by the Tribunal.
PRESENT APPEAL 11 The notice of appeal raised the following grounds: 1. The decision of the Tribunal was an improper exercise of the power conferred by law. 2. The Tribunal failed to have regard to some evidence and claims which were before the Tribunal. 12 The appellants at the hearing today made submissions which essentially sought to rehearse the merits of the case before the Tribunal. It was said by the appellants that the Tribunal made no real effort to consider and understand their case. The appellants raised the one child policy and issue of sterilisation but, as I have indicated, these issues were considered and dealt with by the Tribunal. The appellants also expressed a genuine desire to remain in Australia, but such an expression of desire cannot influence the Tribunal, the Federal Magistrates Court, or this Court in carrying out their respective functions. My role is to review the decision of the Federal Magistrate to determine whether an error has been made in his reasoning, and to determine whether the Tribunal made any jurisdictional error. 13 I turn to the two grounds of appeal, and consider them in light of the submissions made by the appellants.
Improper exercise of power 14 The Tribunal's conclusion was based on a consideration of the plausibility of the appellants' claims as well as an assessment of the truth and internal inconsistency of oral evidence. The Tribunal addressed all of the evidence before it, and rather than ignoring evidence, it has been rejected or given little weight. It is open to the Tribunal to consider the weight given to any particular piece of evidence. There is no evidence in the decision of the Tribunal of any critical flaws in its reasoning process. The Tribunal undertook a proper, genuine and realistic consideration of the appellants' claims, which included giving ample opportunity to the appellants for discussion of evidence in fact presented. 15 The Federal Magistrate found that the decision was based on a factual analysis of the claims made by the appellants and based on this analysis concluded that the claims in relation to Falun Gong could not be accepted. He found that the factual findings of the Tribunal were reasonably open to it. 16 In my opinion no basis has been provided to support this first ground of appeal.
Failure to have regard to some evidence 17 As I have indicated, in my view the Tribunal did consider the material before it. 18 A fair reading of the Tribunal decision gives no indication that the Tribunal has ignored a relevant piece of evidence. The Tribunal discussed all of the appellants' claims at the hearing and also put to the appellants its concerns regarding this information, to which the appellants were able to respond. In the decision the Tribunal detailed a substantial amount of independent country information relevant to the situation of the appellants. The Tribunal set out detailed reasons for rejecting the appellants' claims to be Falun Gong practitioners. Further, the weight that the Tribunal attaches to a piece of evidence is a factual matter for it to decide and as such there is no room for judicial review: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 and Lee v Minister for Immigration & Multicultural Affairs [2005] FCA 464. I am unable to discern any relevant information ignored or overlooked by the Tribunal. 19 In light of the above, this second ground is without merit.
conclusion 20 I can see no other basis to allow the appeal. In my view, the Tribunal brought an open, independent mind in reaching its decision, and accorded procedural fairness. The appellants were given amply opportunity to present their arguments. By reason of the foregoing, the appeal ought to be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.
Associate: Dated: 13 August 2008 Counsel for the Appellants: In person
Counsel for the First Respondent: Mr J Knackstredt
Date of Hearing: 11 August 2008
Date of Judgment: 11 August 2008
SZIIS
Minister for Immigration & Citizenship