SZOEG v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-08|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Nicholls FM delivered on 21 September 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 27 January 2010. 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 the People's Republic of China who arrived in Australia on 22 October 2007. On 1 November 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 21 December 2007. On 22 January 2008 the appellant lodged an application to the Tribunal for a review of that decision. The Tribunal ("the first Tribunal") affirmed the decision of the delegate in a decision handed down 10 April 2008. The appellant sought review of the Tribunal's decision by the Federal Magistrates Court, and on 11 August 2009, the Court made consent orders setting aside the decision and remitted the matter to the Tribunal to be determined according to law. 3 The Tribunal, differently constituted ("the second Tribunal"), affirmed the decision under review on 27 January 2010. It is this decision of the Tribunal which was the subject of consideration by the Federal Magistrate below. 4 The appellant claimed to be a practitioner of Falun Gong, who began practising in 2006 after she noticed the positive impact it had on her mother. She claimed she and her mother practised together in her mother's home. She claimed that in February 2007 while they were doing their exercises, her mother's house was raided by police and they were both arrested. She claimed that she was taken to a "forced labour camp", where she was tortured and detained for three months. After signing an undertaking not to practise anymore, she was released on 26 May 2007. 5 Despite signing the undertaking, the appellant claimed that she and her mother (who was released after paying a sum of money) continued to practise at her mother's house, and hid books and DVDs about Falun Gong under a bed in the house. She claimed she was required to report to the police station daily. She decided to leave China and paid money to a third party to organise a visa for her to come to Australia.

REFUGEE REVIEW TRIBUNAL 6 The appellant was appeared before the second Tribunal on 20 October 2009 to give evidence and present arguments. After discussing the claims made by the appellant and the evidence before it, the Tribunal found it was not satisfied that the appellant was a person to whom Australia owed protection obligations. 7 The Tribunal noted that the appellant showed a familiarity with Falun Gong theory and practice during the Tribunal hearing. However, it found that beyond her own assertions, the appellant did not provide any evidence that she was a practitioner in China. The Tribunal noted that the only evidence provided related to her conduct in Australia, and that it appeared that she only showed a sound knowledge of Falun Gong to a practitioner in Australia after she had been living here for a year. Therefore the Tribunal found it could not be confident as to when she gained her knowledge of Falun Gong principles. The Tribunal also noted the appellant's inability to provide evidence that she had been detained for three months in China. Further, the Tribunal considered that the appellant's willingness to allow a person to write her application for her, even though she gave him no details of her claims, cast doubt on her general credibility, as she must have known he was concocting a history on her behalf. 8 The Tribunal also considered the appellant's claim that after being incarcerated, she continued to practise and that her mother hid Falun Gong materials under a bed. The Tribunal found that the appellant's willingness to tempt fate in that way was not plausible when considering her claim that she was sufficiently frightened that she fled China. The Tribunal also found the appellant's claim that the PSB never searched the home at which she lived was illogical and implausible when compared to the details of policing provided through independent country information. 9 On this basis, the Tribunal was not satisfied the appellant was truthful in her claims that she began practising Falun Gong in China in 2006, or that she was detained as a result. The Tribunal was not satisfied she was a Falun Gong practitioner in China, or that she was detained because of a perception that she was. 10 In respect of her participation in Falun Gong activities in Australia, the Tribunal applied s 91R(3) of the Migration Act 1958 (Cth) ("the Act"), and held that the conduct engaged in by the applicant in Australia was for the purposes of strengthening her application for a protection visa. 11 The Tribunal considered the claim that her sister was detained by police, but concluded this was an act of extortion and not a significant reason for harm that would be one of those listed in the Refugees Convention. 12 For these reasons, the Tribunal affirmed the decision of the delegate.

FEDERAL MAGISTRATES COURT 13 On 24 February 2010 the appellant filed an application for judicial review of the Tribunal's decision. In an amended application filed on 10 June 2010 the appellant claimed the following: 1. In finding that the Applicant "only showed a sound knowledge of Falungong to a practitioner in Australia after she had been living here for one year" and that the Tribunal "cannot be confident as to when [the Applicant] gained her knowledge of Falungong precepts" (RD 152 [106]), the Tribunal committed jurisdictional error by failing to refer to relevant evidence. Particulars The evidence to which the Tribunal did not refer is the written statement of Ms Yu at RD 112 2. Further, and in the alternative, in making the findings referred to in Ground 1 above, the Tribunal committed jurisdictional error in that the Tribunal constructively failed to exercise jurisdiction by failing to make an obvious inquiry about a critical fact the existence of which was easily ascertained. Particulars The obvious inquiry that the Tribunal could not have made was to ask Ms Ping Yu about Ms Yu's knowledge (or assessment or understanding) of the Applicant's knowledge of Falun Gong at the time that Ms Yu first met the Applicant in January 2008. 3. In finding that the incident concerning the Applicant's sister following her return to China in May 2009 was "simply one of extortion and unrelated to Falun Gong" and that it was of no 'relevance to [the Applicant's] own circumstances' (RD 155 [118]), the Tribunal committed jurisdictional error: (a) by misunderstanding, or in the alternative, by not referring to, relevant evidence. Particulars The evidence is that of Mr Peter Jurcik at RD 111 and RD 132-133 (b) in that the Tribunal constructively failed to exercise jurisdiction by failing to make obvious inquiries about critical facts the existence of which were easily ascertained. Particulars The obvious inquiries that the Tribunal could have made was to ask Mr Jurcik about whether: (i) the incident occurred because of a perception that the Applicant's sister was a Falun Gong practitioner; (ii) the Applicant's sister had been subjected to the type of punishment to which practitioners are frequently subjected; (iii) the Applicant's sister has not been troubled by the authorities again "in the subsequent 7-8 months" since her return. 4. In finding that the Applicant was not a credible witness (RD 154 [114]), the Tribunal committed jurisdictional error in that the Tribunal's finding is illogical or irrational in the light of the Tribunal's various errors with respect to both the finding of facts and the process of reasoning. 5. The Tribunal committed jurisdictional error by failing to consider a claim that emerged clearly from the material before it. Particulars The claim is one based on the Convention ground of membership of a particular social group. The social group may be defined as Chinese nationals who return to China from overseas and who are perceived to have defamed China while overseas and who are thereby susceptible to detention, physical harm and/or extortion. 14 The decision of the Federal Magistrate was lengthy and detailed. 15 In respect of ground 1, the Federal Magistrate noted that the weight the Tribunal affords to any piece of evidence is a matter for it. The Federal Magistrate also stated that Ms Yu's statement was silent as to the appellant's level of knowledge of Falun Gong at the time they first met. Therefore the Federal Magistrate did not agree that the statement was "plainly corroborative" of the appellant's claim to have been a Falun Gong practitioner in China. 16 The Federal Magistrate also rejected the submission that the Tribunal failed to make an obvious inquiry as to Ms Yu's assessment of the appellant's knowledge of Falun Gong at the time they first met in January 2008. The Federal Magistrate noted that the decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 stood for the proposition that to amount to jurisdictional error, the appellant is required to show that the inquiry which the Tribunal should have made was an obvious one, and that it concerned a critical fact the existence of which was easily ascertained, and that ultimately, it could provide a sufficient link to the outcome, to constitute a failure to review. The Federal Magistrate held in this case, the appellant was not able to establish that her matter fell within these circumstances. Further, the Tribunal noted that if the inquiry was "so obvious", then it was questionable why her adviser did not raise with the Tribunal the obvious inquiry. 17 In respect of ground 3, the Federal Magistrate rejected the argument that the Tribunal failed to make an obvious inquiry as to the circumstances of the appellant's sister, by failing to have regard to the statement of her brother-in-law, Mr Jurcik. In this regard, the Federal Magistrate noted that the decision record made clear that the Tribunal did not ignore his evidence. Further, the Federal Magistrate held that as Mr Jurcik's original handwritten note was unclear, it was reasonable for the Tribunal to read it in light of the subsequent statutory declaration provided. The Federal Magistrate also considered that there was tension between the obligation on the Tribunal to make obvious inquiries (SZIAI) and avoiding the situation where the Tribunal was running the case for the appellant (SDAQ v Minister for Immigration and Multicultural Affairs (2003) 129 FCR 137). The Federal Magistrate considered that the decision in SZIAI did not oblige the Tribunal to embark on a round of inquiry until a witness provided unambiguous evidence that assisted the appellant. Further, the Federal Magistrate did not consider that Mr Jurcik's evidence, even if further inquiries were made, could concern a "critical fact" and could supply a sufficient link to the outcome to constitute a failure to review. On this basis, this ground was dismissed. 18 In relation to ground 4, the Federal Magistrate held that there was nothing in the Tribunal's analysis to suggest that the Tribunal tested the truthfulness of the appellant's evidence against a standard or tenet of Falun Gong. Instead it was a general standard of whether or not the appellant's factual account of what happened in China could be accepted. The Tribunal decision was not comparable to the illogical reasoning contained in the Tribunal decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. 19 In respect of ground 5, the Federal Magistrate accepted the respondent's submission that the manner in which the group ("Chinese nationals who return to China from overseas and who are perceived to have defamed China while overseas") was identified was inconsistent with the principles identified in Applicant A v Minister for Immigration, Multiculturalism and Ethnic Affairs (1997) 190 CLR 225. The Federal Magistrate held there was no evidence before the Court that could be said to go to a particular social group that could be constructed out of the sister's claimed experience.

APPEAL TO THIS COURT 20 By Notice of Appeal filed on 11 October 2010, the appellant raised the following grounds of appeal against the decision of Nicholls FM: 1. The Federal Magistrate erred in: (a) holding that it was open to the Refugee Review Tribunal (Tribunal) to understand the statement of Ms Ping Yu as reflective of her belief as at October 2009 (Reasons at [55]-[58]); (b) in failing to hold that the Tribunal committed jurisdictional error by failing to consider relevant evidence (being the statement of Ms Yu) when the Tribunal found that the Appellant "only showed a sound knowledge of Falungong to a practitioner in Australia after she had been living here for one year" and that the Tribunal "cannot be confident as to when [the Appellant] gained her knowledge of Falungong". 2. The Federal Magistrate erred in: (a) holding that the question as to Ms Yu's knowledge (or assessment or understanding) of the Appellant's knowledge of Falun Gong at the time that Ms Yu first met the Appellant in January 2008 was not an obvious inquiry about a critical fact the existence of which was easily ascertained; (b) in failing to hold that the Tribunal, in making the finding referred to in Ground 1(b) above, committed jurisdictional error in that the Tribunal failed to make the inquiry of Ms Yu referred to in Ground 2(a) above.

CONSIDERATION 21 At the hearing of the appeal before me yesterday morning the appellant was self-represented. The Minister was represented by Senior Counsel. 22 In Court the appellant exhibited some confusion in respect of the decisions of the first and second Tribunals. Further, the appellant made extensive oral submissions in relation to the findings of the delegate of the Minister, by whom she seemed to feel unfairly treated, as distinct from the decision of the second Tribunal which superseded the delegate's decision, and which, as I observed to her, was under consideration for the purposes of the appeal. In summary, the appellant submitted: There were instances of asylum-seekers being forced to return to China and then imprisoned. The fact that she had been able to leave China did not mean that she was not being persecuted in China. No proper check had been made of country information from China. The fact that the appellant was unable to produce documentation evidencing her imprisonment in China did not support a finding by the Tribunal that she had not been imprisoned. No evidence was before the Tribunal that the appellant had not been persecuted. In fact, she had been persecuted and imprisoned. The decision to refuse her a visa had been pre-determined. The decision to refuse her a visa was not made according to Australian laws or refugee laws. 23 In my view no basis for disturbing the decision of the Federal Magistrate has been demonstrated. I form this view because: In relation to ground 1 of the appeal, it is clear from the reasons of the Tribunal that it took into account evidence of Ms Ping Yu, who, it appears, is a Falun Gong practitioner living in Sydney, and who met the appellant in Australia. To the extent that the appellant challenges the weight the Tribunal placed on evidence of Ms Yu, I note that the weight to be given to such evidence is a matter for the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In relation to ground 2 of the appeal, it appears that this ground attempts to re-agitate the complaint made below about the Tribunal's failure to seek further detail from Ms Yu, specifically to ask her what she thought of the appellant's knowledge of Falun Gong when they first met. While, as observed in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25], failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review, in this case: I am not satisfied that the question whether or not the appellant was well-versed in Falun Gong teachings in January 2008 was a critical fact in the review, rather than a piece of information which might allow inferences to be drawn about whether or not the appellant had practised Falun Gong before coming to Australia. There is no evidence before the Court as to what, if any, evidence Ms Yu would have been able to give about the appellant's understanding of Falun Gong when they first met. I am not satisfied that the Tribunal acted improperly in failing to pursue a line of investigation in relation to Ms Yu. As a general proposition the Tribunal is not under any general duty proactively to inquire (Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22); further the Tribunal is under no obligation to make the case for the appellant (Abebe v The Commonwealth (1999) 197 CLR 510 at 576). Evidence by Ms Yu had been provided to the Tribunal. In my view the Tribunal was entitled to assume that no further evidence of value could be provided by Ms Yu in the circumstances. There is no basis upon which the Court could draw the inference, as submitted by the appellant at the hearing, that the decision to refuse her a visa was in any way pre-determined. A finding against the appellant on the facts is not only not bias from the perspective of the Tribunal, but is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Court cannot engage in a review of the merits of the appellant's claims: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. Findings of fact are matters for the Tribunal. In this case the Tribunal, after consideration of the material before it, formed the view that the appellant had not been persecuted as she had claimed for Falun Gong activities. No proper basis for review of this finding has been advanced. The selection of country information and the weight given to such information is a factual matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63]. 24 The appropriate order is that the appeal be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

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