FEDERAL COURT OF AUSTRALIA

SZIAT v Minister for Immigration and Citizenship [2008] FCA 766

Federal Court of Australia Act 1976 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558

Allesch v Maunz (2000) 203 CLR 172

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 2005 CLR 507

Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016

NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Re Minister for Immigration and Multicultural Affairs; Ex parte Duraurajasingham (2000) 168 ALR 407

SAAS v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 182

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402

SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504

VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266

WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568

SZIAT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 207 of 2008

GORDON J

26 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant is to pay the first respondent’s costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BACKGROUND

1                          This is an appeal against an order of Federal Magistrate Nicholls of 30 January 2008 in which he dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 28 November 2005 and handed down on 15 December 2005.  The Tribunal affirmed a decision of a delegate of the first respondent (“the delegate”) to refuse to grant the appellant a protection visa. 

2                          The appellant is a citizen of the People’s Republic of China (“China”) and first entered Australia on 10 May 2005.  On 9 June 2005, the appellant lodged an application for a Class XA protection visa under the Migration Act 1958 (Cth) (“the Act”) with the first respondent, claiming to have a well-founded fear of persecution as a result of her association with Falun Gong in China.  The appellant claims to be a practitioner of Falun Gong and to have participated in Falun Gong activities and gatherings in both China and Australia.  As a result of this claimed participation, she claims to fear persecution, imprisonment and brainwashing by Chinese authorities is she were to return to China. 

3                          The delegate refused the appellant’s application on 21 July 2005.  On 28 July, the appellant applied to the Tribunal for a review of that decision.  The Tribunal found that the appellant did not have a well-founded fear of persecution in China for a Convention related reason and therefore found that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention.  This was largely based on a finding by the Tribunal that the evidence on which the appellant had sought to base her claim for refugee status was “riddled with inconsistencies, contradictions and implausabilities”.  The appellant then made an application to the Federal Magistrates Court for review of the Tribunal’s decision, which, as noted above, was unsuccessful. 

FEDERAL MAGISTRATES COURT

4                          Both the appellant and the first respondent were represented at the hearings before the Federal Magistrates Court.  Counsel for the appellant was granted leave to file an amended application at the hearing which put forward four grounds (“the amended application”):

1.         The [appellant] made three claims which the Tribunal did not determine, giving rise to jurisdictional error.  First, the [appellant] claimed she wished to freely practice Falun Gong but could not do so if required to return to China because she would be persecuted.  Second, the [appellant] claimed she feared persecution because she had visited her brother who was black listed by the Chinese Consulate in Sydney (RD 19.10).  Third, the [appellant] claimed she feared persecution as a result of the claims she made during the protection visa process (See RD 22.1).

2.         The Tribunal erred in its finding involved in s 91R(3) of the Migration Act for three reasons.  First, the Tribunal failed to have regard to evidence in a number of statutory declarations, in particular that the [appellant] was a genuine Falun Gong practitioner, giving rise to jurisdictional error.  Second, the Tribunal fell into jurisdictional error in finding that the [appellant] was a ‘minor’ participant in the Falun Gong activities in Australia.  Third, the Tribunal failed to consider whether the [appellant] engaged in Falun Gong activities in Australia for more than one reason, giving rise to an error in statutory interpretation or a failure to have regard to an issue.

3.         The Tribunal failed to comply with s 424A of the Migration Act in relation to a number of findings.

4.         The Tribunal found ‘the [appellant’s] claim that she was a (sic.) sacked as a teacher…to be a contrived fabrication’.  Separate from any failure to comply with s 44A, the Tribunal fell into jurisdictional error in making this finding.  Among other reasons there is no basis or no proper basis of the Tribunal’s finding that ‘if the alleged incident had occurred in September 1999 as described…this brother would not have subsequently return (sic.) several times to his home town without his visits coming to the adverse attention of authorities.”

5                          Ground 1:  The Federal Magistrate held that because the Tribunal dismissed the appellant’s claim to have been a Falun Gong practitioner in China as a “complete fabrication” it did not need to consider whether the appellant would practice Falun Gong in public if she returned to China.  His Honour further held that the claim that the appellant would be persecuted for visiting her brother in Sydney who is “blacklisted” did not “squarely” arise on the material, and as such there was no obligation of the Tribunal to consider it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1.  Nor did His Honour accept that there was evidence suggesting that the appellant had made a sur place claim that she feared persecution in China because she had made a protection visa application in Australia.  The ground accordingly failed.

6                          Ground 2:  The Federal Magistrate considered the appellant’s Falun Gong-related activities in Australia.  Regarding the weight given to evidence supporting this claim, his Honour properly noted that the weight to be given to that evidence was ultimately a matter for the Tribunal.  Having found that the appellant was not a credible witness, it was open to the Tribunal to give little or no weight to corroborative evidence that she was in fact a Falun Gong practitioner in China.  His Honour further found that it was open to the Tribunal to characterise the appellant’s Falun Gong activities in Australia as “minor” and that the Tribunal had applied the correct test in applying s 91R of the Act in determining that the appellant’s conduct was for the “sole purpose” of strengthening her refugee claim.

7                          Turning to the third ground, his Honour held that information about the appellant’s brother’s travel arrangements would not, in its terms, be the reason or part of the reason for affirming the decision under review and did not attract the operation of s 424A(1): SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.  Moreover, any adverse conclusion drawn from this information would be the Tribunal’s subjective appraisal and outside the scope of “information” for the purposes of the section: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471.  Turning to the information concerning the appellant’s production of banners for her local area, his Honour found that the reason or part of the reason for rejecting the appellant’s claims in this regard was an inconsistency in her claim.  Inconsistencies did not constitute “information”.

8                          The fourth ground may be put to one side because, on 21 May 2008, the appellant indicated through her Counsel that she no longer wished to press paragraph four of the grounds of appeal in this Court. 

9                          The matter was accordingly dismissed.

PRELIMINARY MATTERS

10                        The appellant seeks prerogative relief of the kind issued in the exercise of the Court’s original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision).  This proceeding is an appeal from a decision of the Federal Magistrates Court under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”).  The appeal is in the nature of a rehearing and not an appeal in the strict sense:  Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.  The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error:  Allesch v Maunz (2000) 203 CLR 172 at [23].  Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 

11                        For reasons outlined below, I am not satisfied that the decision of the Federal Magistrate is affected by any error, whether as alleged or at all.

ANALYSIS

12                        The notice of appeal filed in this Court on 20 February 2008 is identical to the amended application but for an inconsequential alteration to the wording of ground four, and the addition to each ground of the phrase “Federal Magistrate Nicholls dismissed this ground of review.  His Honour erred in making this finding.” 

13                        As noted earlier, on 21 May 2008, the appellant indicated thorough her Counsel that she no longer wished to press paragraph 4 of the grounds of appeal. 

Ground 1 – Failure to Determine Claims

14                        The appellant submitted that the Tribunal, in relation to three separate matters, failed to determine a claim made by the appellant and thereby fell into jurisdictional error: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [55] and [63]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45] and [47]. 

15                        The three complaints were as follows.  First, that she is a genuineFalun Gong practitioner and although she had not practised Falun Gong in public in China since July 1999, she wished to practise Falun Gong in public now and in the future.  However, should she be required to return to China, she would fear persecution if she practised Falun Gong in public.  Secondly, that the appellant fears persecution if she were to return to China because she had come to Australia to visit her brother who was “blacklisted” by the Chinese Consulate in Sydney and he is a person of interest to the authorities in China.  Thirdly, that she will be persecuted in China as a result of making claims and providing information to the first respondent while she pursued her protection visa application.  The third matter was not pursued on appeal.

16                        I can identify no jurisdictional error. 

17                        As was submitted by the first respondent:

1.         The Tribunal is obliged to apply the criteria for a protection visa and consider the appellant’s claims relating to those criteria:  Htun 194 ALR 244 at [42]. 

2.         While a failure by the Tribunal to make findings in respect of the factual contentions that underlie claims may indicate that it failed to consider an applicant’s claim, the Tribunal is not obliged to make findings in respect to every individual piece of evidence: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]-[68], [73]-[74], [77], [89] and [91]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] and [95]. 

3.         Where a Tribunal makes general findings that subsume factual contentions, a court should not readily infer that the appellant’s claims were not considered:  Yusuf 206 CLR 323 at [67]-[68], [73]-[74], [77], [89] and [91];  Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; WAEE 75 ALD 630 at [47] and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79].

18                        In light of those principles, the first respondent submitted that each of the matters that the appellant contended the Tribunal had failed to address must be seen in the context of the findings actually made by the Tribunal, namely, general adverse findings as to the credibility of the appellant.  The first respondent submitted, and I accept, that those findings subsumed the factual contentions now complained of.  The general adverse findings as to credit made by the Tribunal were extracted in the Federal Magistrate’s reasons (SZIAT v Minister for Immigration & Anor [2008] FMCA 44 at [28]) as follows:

I accept that the [appellant] is a citizen of China, however, I find that the evidence on which she has sought to base her claim for refugee status is riddled with inconsistencies, contradictions, and implausibilities, and I set these out below.

And further:

After careful examination of the [appellant’s] claim for refugee status based on her being a Falun gong practitioner in China and of interest to the authorities in China, I am satisfied that this claim is without any foundation and is a complete fabrication.

19                        In essence, the Federal Magistrate understood the submission of the first respondent to be that if the Tribunal found the appellant’s credibility “so weakened”, those parts of the materials put forward as claims by the appellant and proffered as evidence by the appellant in support of her claim to fear persecution in China, were treated by the Tribunal as being no weight because, in the words of McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] “the well has been poisoned beyond redemption”. 

20                        The Federal Magistrate accepted the submissions of the first respondent.  The Federal Magistrate noted that the Tribunal dealt with each aspect of the appellant’s claim as it was said to derive from the situation, and her experiences, in China.  It looked at:

·          the situation as it related to the practice of Falun Gong in China and the appellant’s claims in this regards; 

·          the circumstances of her employment in China, and her claims as they derived from this; 

·          the appellant’s own evidence regarding the way in which she obtained Chinese passports and her travel in and out of China; 

·          the interest of the authorities, in particular the police, in the appellant in China as it was said to arise from her claim that she had hung up banners in a public place. 

21                        The Federal Magistrate noted that the Tribunal made adverse findings against the appellant following its consideration of each of these claims, and therefore “comprehensively rejected as a ‘complete fabrication’ her claims to be a refugee because she was a Falun Gong practitioner in China, and of interest to the authorities”: SZIAT [2008] FMCA 44 at [38].

22                        The appellant’s reliance upon WAEE 75 ALD 630 at [46]ff as authority for the proposition that the Tribunal was obliged to expressly deal with each of the matters referred to above (see [15]) is misconceived on a number of bases.  First, the submissions ignored the principles identified in [17] above.  Secondly, as the Full Court said in WAEE 75 ALD 630 (at [47]) although an “inference that the [T]ribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons”, “that is an inference [that] should not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”.  In the present matter, on any view, the Tribunal identified the issues and dealt with them and its reasons for decision were otherwise comprehensive.  Thirdly, in WAEE 75 ALD 630 at [27], the Tribunal regarded “some parts of the appellant’s claims as not credible”.  In the present case, the Tribunal “comprehensively rejected as a ‘complete fabrication’ her claims to be a refugee because she was a Falun Gong practitioner in China and of interest to the authorities”. 

23                        No error is demonstrated by showing only that a Court has made a decision with which the litigant disagrees.  The appellant must demonstrate that the Federal Magistrate failed to apply the correct principle.  She does not.  The ground of appeal is dismissed.

Ground 2 – s 91R(3) of the Act

24                        The appellant submitted that the Tribunal erred in its application of s 91R(3) in three respects.  First, that “corroborative evidence” (in the form of statutory declarations from fellow Falun Gong practitioners in Australia as to the appellant’s Falun Gong activities in Australia) was not considered.  Secondly, that there was no evidence to support the Tribunal’s finding that the appellant was “a minor participant in [Falun Gong] activities” in Australia.  Thirdly, that the Tribunal failed to consider whether the appellant engaged in Falun Gong activities in Australia for more than one reason.  The second and third aspects of this ground of appeal were not pursued at the hearing.

25                        Section 91R(3) of the Act, relevantly provides that for the purposes of determining whether a person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention, any conduct engaged in by the person in Australia is to be disregarded “unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol”.

26                        In respect of the first allegation, the appellant submitted that although there was a “great deal” of evidence put forward to the Tribunal as to the appellant’s Falun Gong activities in Australia that corroborated the appellant’s claim, the Tribunal erred by failing to make reference to this evidence anywhere in its decision: Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 at [23]; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [26]-[27]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212]-[213]. 

27                        The Federal Magistrate rejected this submission.  I can identify no error in the reasons for decision of the Federal Magistrate.  The appellant’s submissions are contrary to authority and contrary to the facts.

28                        First, the Tribunal is not required to refute, line by line, the corroborative material given by the appellant:  Re Minister for Immigration and Multicultural Affairs; Ex parte Duraurajasingham (2000) 168 ALR 407 at [67]. 

29                        Secondly, the Tribunal in fact referred to and considered the statutory declarations that the appellant relied upon as corroboration of her claims to have engaged in Falun Gong activities in Australia.  At the hearing, the appellant sought to challenge the manner in which the Tribunal described the statutory declaration including:

1.         that although the statutory declarations were attached to the application for review, they bore different dates;

2.         the Tribunal referred to “several” statutory declarations when there were about “sixteen” (there were in fact 19 listed in the appeal book); and

3.         the appellant was described as “a minor participant in [Falun Gong] activities” in Australia. 

30                        These complaints are without foundation.  As noted by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

[T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

Further, the matters identified by the appellant (even if accepted) would not provide any answer to the Tribunal’s credibility findings referred to in [19] above.

31                        Thirdly, the Tribunal accepted that evidence in so far as it demonstrated her attendance at Falun Gong gatherings in Australia.  As the Federal Magistrate noted SZIAT [2008] FMCA 44 at [64]-[65]:

The [appellant’s] claim in this regard, namely, that the Tribunal did not have regard to this material does not succeed in my view, because the Tribunal did not find that the applicant had not engaged in any Falun Gong activities while in Australia … It plainly accepted that she did attend Falun Gong gatherings after her arrival.

… I do not agree that the Tribunal failed to consider the “large” body of evidence before it as to the [appellant’s] activities in Australia.

32                        However, the Tribunal did not accept that the statutory declarations demonstrated that the appellant engaged in that conduct for a purpose other than for strengthening her claims to be a refugee. 

33                        That conclusion was not surprising.  The Tribunal found that the appellant’s claims regarding her conduct in Australia were a complete fabrication and that her conduct in Australia was for the sole purpose of strengthening her claim for refugee status.  That course was open to it and does not reveal error:  Applicant S20/2002 198 ALR 59 at [12] and [49].  It was both open to the Tribunal and does not reveal error because the Tribunal found that the appellant’s own evidence (1) was comprised of “inconsistencies, contradictions and implausibilities” and (2) was “vague, rambling and generally incoherent” and “incoherent and garbled”.  Those findings were material to the Tribunal’s assessment of the genuineness of the appellant’s claims including the Tribunal’s consideration of whether the appellant engaged in the conduct for a purpose other than for strengthening her claims to be a refugee.  Put another way, the Tribunal’s findings were general findings as to credit which subsumed all of her claims.

34                        In relation to the first alleged error arising under the Tribunal’s application of s 91R(3), the Federal Magistrate ultimately concluded that (SZIAT [2008] FMCA 44 at [69]):

… what cannot be avoided counting against the [appellant’s] argument, is that the Tribunal found her conduct in Australia, albeit Falun Gong related conduct, to be conduct engaged in for no reason other than to enhance her refugee claim.  In the circumstances, this was a finding that was open to the Tribunal to make.

There has been no demonstrated error on behalf of the Federal Magistrate in coming to this conclusion.

35                        The appellant must demonstrate that the reasoning of the Federal Magistrate was affected by some factual or legal error:  Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] and MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10].  I can identify no error in the Federal Magistrates’ consideration of the Tribunal’s findings.  This ground of appeal is dismissed.

Ground 3 – s 424A of the Act

36                        The appellant submitted that the Tribunal failed to comply with its obligations in respect of additional information pursuant to s 424A in two ways:  first, the Tribunal used information given by the appellant’s brother to make adverse findings against the appellant and, secondly, that the appellant gave information to the department of the first respondent as to the number of Falun Gong banners she hung in public places.  This was later found by the Tribunal to be inconsistent with later claims.  Only the first issue was pursued on appeal to this Court.

37                        Before the Federal Magistrate, the appellant submitted that this information was used by the Tribunal as “part of the reason for affirming the decision under review” and that in both circumstances, the Tribunal failed to put this information to the appellant in compliance with s 424A(1) and (2). 

38                        I can identify no error in the reasons for decision of the Federal Magistrate.  The testimony of the appellant’s brother did not constitute a “rejection, denial or undermining” of the appellant’s claims to be a person to whom Australia owed protection obligations and therefore was not information that formed part of the reason for decision:  SZBYR 235 ALR 609 at [17].  The inconsistencies between the brother’s testimony and the testimony of the appellant was not information and therefore not subject to s 424A(1):  SZBYR 235 ALR 609 at [18].

39                        Further, the evidence of the appellant’s brother was called on by the appellant.  It was information given by the appellant for the purpose of her application for review and is therefore excluded information:  s 424A(3)(b) of the Act (see also VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at [44] and SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653 at [24].

Ground 4 – breach of procedural fairness

40                        The appellant did not pursue this ground of appeal.

CONCLUSION

41                        For those reasons, the application is dismissed and the appellant should pay the first respondent’s costs to be taxed in default of agreement.

Associate:

Dated:         26 May 2008