SZOBG v Minister for Immigration and Citizenship

Federal Court of Australia|2010-08-06|Before: Bromberg J

introduction 1 The appellant is a citizen of the People's Republic of China. She arrived in Australia on 8 May 2009 and lodged an application for a protection visa with the Department of Immigration and Citizenship on 3 July 2009. The application was refused by a delegate of the Minister for Immigration and Citizenship on 17 September 2009. On 2 October 2009, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. Having failed in her application to the Tribunal, the appellant then applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. 2 The task of the Federal Magistrates Court in dealing with the judicial proceedings brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 3 The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate who determined the appellant's judicial review proceedings is affected by error. For the reasons which follow, I have determined that the appellant has failed to demonstrate any appellable error in the reasons for judgment of the Federal Magistrates Court. Accordingly, this application will be dismissed.

The application to the Refugee Review Tribunal 6 The appellant applied to the RRT for review of the delegate's decision. When the appellant appeared before the Tribunal on 17 November 2009, she made some additional claims relating to her arrest by police in November 2008, and explained her reluctance to practice Falun Gong in Australia. 7 The Tribunal was not satisfied that the appellant is a person to whom Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together "the Refugees Convention"). The Tribunal's reasoning included the following: 1. The Tribunal found that the appellant's claim that she is a Falun Gong practitioner lacked credibility and formed the view that the appellant is not a genuine practitioner, because: 1.1 the Tribunal expected that a genuine practitioner of Falun Gong would be able to discuss their beliefs and principles of practice, and indicate how they apply those beliefs and principles. The Tribunal did not find satisfactory evidence that the appellant was genuinely interested in Falun Gong or that she abided by its beliefs and principles. The Tribunal found that the evidence of the appellant was vague, confused and superficial. 1.2 The appellant had not been involved in any Falun Gong practice while she had been in Australia; 1.3 The Tribunal did not accept the reasons the appellant gave as to why she had not been able to access Falun Gong practice while in Australia. The Tribunal formed the view that a genuine practitioner can safely and easily be involved in the practice of Falun Gong in Australia; and 1.4 The Tribunal determined that the appellant had fabricated her claims of persecution on the grounds of her purported status as a Falun Gong practitioner in order to enhance her application for a protection visa. 2. The Tribunal was not satisfied that the claims of the appellant that she had been detained and mistreated by the Chinese authorities because she was a Falun Gong practitioner were credible. 3. The Tribunal was not satisfied that, if returned to China, the appellant would attract the adverse attention of the Chinese authorities by having any involvement with Falun Gong in the reasonably foreseeable future.

Appeal to the Federal Magistrates Court 8 The appellant brought proceedings in the Federal Magistrates Court, pleading the following grounds: Since 2006 I started practicing [sic] Falun gong because it can assist me with insomnia. My colleague's mother introduced me to practice [sic] Falun Gong. On 20 November 2008, while I practiced [sic] Falun Gong, five police burst into my house and forcibly took me to the police station where I was interrogated and beaten. I was fined for TMB 5000 yuan. When I stopped practicing [sic] Falun Gong, my health deteriorated and I had to resume my practice. I fear that the PRC authorities would discover my practicing of Falun Gong so I decided to flee to Australia. The Refugee Review Tribunal was not satisfied that my claims were credible. I think the Tribunal's decision is not fair. The Tribunal had bias against me. I request that the Judge of the Federal Magistrates Court will return my case to the Tribunal for further determination. 9 As I have stated, the task of the Federal Magistrate was to identify any jurisdictional error in the decision of the Tribunal. As is common with migration appeals, the appellant appeared to hold the erroneous view that the Federal Magistrate was empowered to conduct a merits review. His Honour dealt with that notion at paragraphs [4] and [19]-[20] of his reasons for judgment: [2010] FMCA 225.

Tribunal's decision 'unfair' 10 Given that the appellant's claims were not particularised, the learned Federal Magistrate dealt with the grounds as best he could. He drew from the meaning of the appellant's claim that the Tribunal's decision was 'unfair' an issue of natural justice, and referred to the natural justice hearing rule articulated in s 422B of the Migration Act and codified in Division 4 Part 7 of that Act. 11 The Federal Magistrate correctly noted that the natural justice rule was confined to the provisions in Division 4 Part 7 of the Migration Act: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. 12 The Federal Magistrate noted that the appellant had not pointed to any of the provisions contained in Division 4 Part 7, nor said that the Tribunal had failed to meet the obligations imposed upon it by the provisions of the Division. 13 Further, the Federal Magistrate set out and analysed the relevant provisions of the Migration Act (in particular, ss 422B, 429A, 424A and 425) alongside the apparent conduct of the Tribunal hearing, and determined that an examination of the Tribunal's decision record did not reveal any breach of any obligation imposed by the relevant provisions.

Bias 14 The appellant's allegation of bias on the part of the Tribunal was not particularised. Neither was it made clear whether the appellant alleges actual or apprehended bias. The learned Federal Magistrate stated that no evidence was adduced by the appellant that might shed light on the issue, pointing in particular to the fact that the transcript of the Tribunal hearing was not put before him for the purpose of considering the conduct of the Tribunal hearing by the presiding member. 15 The only evidence before the Federal Magistrate in considering this allegation was the decision record of the Tribunal. His Honour found from a review of the decision record that there was no disclosure of a mind so committed to a conclusion already formed that it would be incapable of alteration, nor conduct from which a fair minded lay observer (properly informed as to the nature of the proceedings, the matters in issue and the conduct concerned) would reasonably apprehend that the Tribunal might not bring an impartial mind to the matter to be decided: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 at [27]-[28]. 16 The Federal Magistrate found no jurisdictional error on the part of the Tribunal and accordingly dismissed the application.

Appeal to the Federal Court 17 On 13 April 2010, the appellant filed a Notice of Appeal which contained the following stated grounds of appeal: 1. The appellant was persecuted in China due to her practice of Falun Gong ("the first ground of appeal") 2. The Tribunal didn't take her claims into account ("the second ground of appeal") 3. The Federal Magistrate dismissed the application ("the third ground of appeal") 18 In order to succeed, the appellant would need to satisfy me (by reference to her grounds of appeal) that the Federal Magistrate erred in failing to identify jurisdictional error in the decision of the Tribunal.

The first ground of appeal 19 Ground 1 is simply a repetition of the appellant's substantive claims for a protection visa. My consideration of those claims would constitute an impermissible merits review of a decision of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167 at [9]. As such, the first ground of appeal is not an available ground, and I must dismiss it.

The second ground of appeal 20 The second ground of appeal appears to suggest that the Tribunal did not properly consider the appellant's claims for a protection visa. In my view, such an allegation is simply not supported on a fair reading of the evidence before me. The Tribunal provided a fair and representative summary of the appellant's evidence at the beginning of its reasons for decision, outlining the appellant's claims to have suffered persecution by reason of being a Falun Gong practitioner. 21 The Tribunal was not convinced of the general credibility of the appellant, and as such did not accept as credible her claim that she is a genuine and committed Falun Gong practitioner. Such a finding was open to the Tribunal on the material before it, and for the reasons it stipulated. 22 The second ground of appeal is not made out.

The third ground of appeal 23 This ground of appeal is simply a statement of the factual outcome of the proceedings before the learned Federal Magistrate. As I have already outlined, his Honour did not find any evidence that the Tribunal failed to comply with its obligations under Division 4 Part 7 of the Migration Act. Nor did he identify on the evidence any disclosure of actual or apprehended bias on the part of the Tribunal. The Federal Magistrate identified instead what he described as "a conscientious intention to afford the [appellant] a proper hearing and the opportunity to make out her claim".

The further argument raised at the hearing 24 At the hearing of the appeal the appellant challenged the Tribunal's finding that her claim that she was a Falun Gong practitioner lacked credibility. The basis of that finding is summarised at [5] above and was founded upon what the Tribunal regarded as vague, confused and superficial evidence from the appellant about the beliefs and principles of practice of Falun Gong. 25 The appellant did not challenge the Tribunal's finding as to the quality of her evidence about Falun Gong but explained that the cause of the deficiency in her evidence was that she was nervous during the Tribunal hearing and had not slept well the night before the hearing. 26 It appeared to me that by making that argument, the appellant was raising a challenge based upon a denial of a "real and meaningful" opportunity to give evidence and present arguments in support, contrary to the requirements of s 425 of the Migration Act. The first respondent objected to the raising of what it asserted to be a new ground of appeal and argued that in any event the ground was not made out. 27 I need not deal with whether this challenge raises a new ground and if so whether the appellant should be permitted to rely upon it because, having considered the argument, I am satisfied that it must fail. 28 In arriving at its view that the appellant was unable to demonstrate at the hearing that she understood or followed the Falun Gong beliefs and principles, the Tribunal took into account that the appellant was nervous and that she had not slept well the night before the hearing and that this had prevented her from providing a more detailed account of her beliefs and principles. The Tribunal concluded, however, that a "more plausible explanation" of the appellant's deficiencies was that she was not a genuine Falun Gong practitioner and that she had limited knowledge and understanding of the principles and beliefs which form the basis of Falun Gong. 29 The appellant has not demonstrated that the Tribunal was wrong to attribute her poor performance before it to her limited knowledge and understanding rather than to the effects of her nervousness and/or lack of sleep: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [34] per Keane CJ (with whom Emmett J agreed). The hearing required by s 425 of the Migration Act is not nullified by mere failure by an applicant to present her case in the best possible light: SZNVW at [22] per Keane CJ.

Conclusion 30 The appellant has failed to demonstrate error on the part of the Federal Magistrate in relation to each of her grounds of challenge. Furthermore, no such error is otherwise disclosed on the material before me. 31 The appeal will be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

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