SZMAN v Minister for Immigration and Citizenship

Federal Court of Australia|2009-02-11|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Barnes FM delivered on 9 September 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 12 February 2008. 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 appellant.

BACKGROUND 2 The appellant is a citizen of China who arrived in Australia on 12 September 2007. On 19 September 2007 the appellant 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 30 October 2007. On 5 December 2007 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed to have a well-founded fear of persecution due to her practice of Falun Gong. She claimed that she had learnt Falun Gong from her son's teacher in 1998, and thereafter she became "very fond of Falun Gong" and followed the teacher to different meetings. She stated that after the teacher was sentenced to imprisonment in September 1999 she was sent for classes and warned not to continue practising Falun Gong. She claimed she stopped for six months but resumed practising secretly in 2000. She said that in 2006 the police searched her home and took away Falun Gong books and detained her for three days during which time she was physically and mentally persecuted. She then realised she would not be safe in China and made preparations to leave China for Australia.

PROCEEDINGS BEFORE THE TRIBUNAL 4 The Tribunal found that the appellant's claim to be associated with Falun Gong was unsupported by any corroborative evidence and that at the hearing she had displayed only a rudimentary knowledge of Falun Gong history, theory and practice. The Tribunal found that her level of knowledge was "extremely sketchy and could have been obtained from the internet with minimal research". The Tribunal stated that, taking into account her description of the circumstances in which she claimed to have learnt about Falun Gong and practised it, it would have expected someone who had been practising Falun Gong for nine years in total to have had a significantly higher level of knowledge than that displayed. 5 The Tribunal found that there were inherent contradictions in the appellant's oral and written statements relating to key aspects of her claims as to when she was detained and questioned by police and the nature of any adverse treatment. In those circumstances the Tribunal did not accept that the appellant's claim related to incidents that she had actually experienced. The Tribunal also had concerns over her evidence that she had travelled to Malaysia and then returned to China in 2005, suggesting to the Tribunal that she had no fear of persecution in China at that time. 6 The Tribunal also found that the appellant had not practised Falun Gong in Australia and that the knowledge that she had displayed has been acquired by research in Australia to help her respond to questions about Falun Gong. The Tribunal concluded that the appellant had no genuine commitment to Falun Gong and that, were she to return to China in the reasonably foreseeable future, she would have no reason to involve herself in Falun Gong in any way. The Tribunal therefore found that she would not face persecution in China because of any association with Falun Gong.

APPLICATION FOR JUDICIAL REVIEW BEFORE THE FEDERAL MAGISTRATES COURT 7 On 11 March 2008 the appellant filed an application for judicial review of the Tribunal's decision. On 26 June 2008 the appellant filed an amended application in which she contended that the Tribunal: 1. Failed to notify her in writing the reason or part of the reason for affirming the decision and therefore failed to consider her application in accordance with s 424A Migration Act 1958 (Cth) ("the Act"). 2. Failed to refer to proper independent information in its consideration of the application. 8 The Federal Magistrate found that the Tribunal had complied with s 424A of the Act as the Tribunal was not obliged to put its "provisional reasoning" to the appellant. Her Honour noted that the evidence provided by the appellant to the Tribunal and the information in her passport were excluded from the obligations contained in s 424A of the Act by s 424A(3)(b) of the Act, being information given to the Tribunal by the appellant for the purposes of the review. Her Honour was also satisfied that there was no suggestion on the material before the Court that the appellant provided information to the Tribunal which it failed to take into account, and reiterated that the choice and weight to be given to items of independent country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [10]-[12]). 9 Her Honour then considered the appellant's oral submission that the Tribunal was biased against her. Her Honour noted that mere adverse findings in relation to the appellant's credit does not give rise to an inference as to the state of mind of the Tribunal, and the Tribunal's account of what occurred in the Tribunal hearing was not as such as to establish actual or apprehended bias. 10 The appellant contended in oral submissions that the Tribunal acted on presumption instead of evidence, however her Honour found that the Tribunal properly considered the appellant's claims. 11 The appellant also contended that the Tribunal did not deal with her application properly under s 91R of the Migration Act. Barnes FM inferred this contention arose with respect to the Tribunal's findings in relation to the conduct of the appellant in Australia. However her Honour found firstly that given the Tribunal's finding that the appellant had not practised Falun Gong in Australia, there was no room for the operation of s 91R in that respect, because s 91R(3) provides that something which has not occurred does not have to be disregarded. Further, the Tribunal's statement about the acquisition of information on Falun Gong by the appellant in Australia was an elaboration upon its finding that the appellant had not practised Falun Gong in Australia for the reasons it had previously given. Her Honour felt that it could be inferred that the Tribunal was of the view that the conduct consisting of acquisition of this knowledge was solely for the purpose of supporting the appellant's claim to be a refugee and hence was also to be disregarded, thereby not breaching s 91R(3) of the Act. Her Honour further stated that if she were wrong in this conclusion, relief should be refused on discretionary grounds as the Tribunal's finding about the level of knowledge acquired in Australia had no consequence in relation to the outcome of her case in the sense that the Tribunal had already made the determinative findings that she was not a Falun Gong practitioner.

APPEAL TO THIS COURT 12 By Notice of Appeal filed on 29 September 2008, the appellant raised the following grounds of appeal against the decision of Barnes FM: 1. The Tribunal referred to out of date independent information for the consideration of my application. The Tribunal had bias against me and made a decision on my application with jurisdictional errors. 2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons. 3. The Tribunal failed to assess the chance of my persecution because of my practice of Falun Gong. 13 The appellant filed no written submissions but made brief oral submissions repeating her grounds of appeal. The Minister filed written submissions, and oral submissions were made at the hearing on behalf of the Minister by Counsel.

CONSIDERATION 14 In my view the appellant's grounds of appeal cannot be substantiated. I form this view for the following reasons:

(1) First Ground of Appeal 15 In relation to this ground of appeal no particulars were given as to the independent information alleged to be out of date, nor the appellant's claim of bias in the Tribunal. However in any event it is very clear from the cases that the choice and weight to be given to independent country information is entirely a matter for the Tribunal: NAHI v Minister for Immigration and Citizenship [2004] FCAFC 10; NAKT v Minister for Immigration and Citizenship (2006) 156 FCR 419. Even if it could be established that the Tribunal made an error of fact by relying on incorrect country information, this would not amount to an error of law nor jurisdictional error in this case: NAHI v Minister for Immigration and Citizenship at [11]. 16 Further, bias is a serious allegation and must be clearly alleged and proved: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361 at [43]. Merely making adverse findings in relation to the appellant's credit does not give rise to an inference as to the state of mind of the Tribunal: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102. On the material before it the Tribunal did not accept that the appellant was a Falun Gong practitioner in either Australia or China. The Tribunal found that the appellant's oral and written evidence contained inherent contradictions in relation to key aspects of her claims. These are issues upon which the Tribunal made factual findings, which are not open to review by this Court. They do not establish bias in the Tribunal.

(2) Second Ground of Appeal 17 No particulars were given as to information the appellant asserts the Tribunal was obliged to provide the appellant, so as to allow the appellant an opportunity to respond. In any event, the learned Federal Magistrate below found (at [16]-[17]) that the Tribunal had complied with s 424A in that: · the Tribunal was not obliged to put its provisional reasoning to an applicant under s 424A: SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609; · the appellant's oral evidence at the Tribunal hearing and the information in her passport (which were provided to the Tribunal) were excluded from the operation of s 424A(1) by s 424A(3)(b); · section 424A(3)(ba) excludes information provided by the appellant in her protection visa application from the operation of s 424A(1). 18 I agree with the Federal Magistrate that no failure to comply with s 424A has been established.

(3) Third Ground of Appeal 19 No particulars were provided in relation to this ground of appeal, and indeed its meaning is not clear. Plainly, the Tribunal did consider the claims of the appellant to be a Falun Gong practitioner and her claim that she suffered persecution for that reason. The Tribunal considered in detail the independent information available concerning Falun Gong, and in considerable detail the evidence given by the appellant as to her involvement in Falun Gong. As I have already observed, the Tribunal did not believe the appellant's claims to be a Falun Gong practitioner, or her claim that she would face persecution in China because of any association with Falun Gong. These are findings of fact available on the evidence, and not open to disturbance by this Court. 20 The appeal should 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 Collier.

Associate: Dated: 11 February 2009 Counsel for the Appellant: The Appellant appeared in person

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