AZABE v Minister for Immigration
[2011] FMCA 337
•12 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZABE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 337 |
| MIGRATION – RRT decision – applicant from People’s Republic of China claiming persecution by reason of being a Falun Gong adherent – no jurisdictional error identified – application dismissed. |
| Migration Act 1958 (Cth) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at pages 199-200 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at para 64 |
| Applicant: | AZABE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 324 of 2010 |
| Judgment of: | Simpson FM |
| Hearing date: | 11 April 2011 |
| Date of Last Submission: | 11 April 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 12 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The applicant do pay the first respondent’s costs fixed in the sum of FIVE THOUSAND, EIGHT HUNDRED AND SIXTY FIVE DOLLARS ($5,865.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 324 of 2010
| AZABE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 October 2010. The Tribunal affirmed a decision of a delegate to the Minister for Immigration and Citizenship (“the delegate”) to refuse to grant the applicant a Protection (Class XA) Visa (“the Protection Visa”).
The applicant has been without legal representation throughout these proceedings. I have made due allowance for this fact. The applicant was assisted at the hearing by a Chinese Interpreter.
The applicant is a citizen of the People’s Republic of China and claims to fear persecution from Chinese authorities on the basis that he is a Falun Gong adherent. He says that he was jailed whilst in China for practicing Falun Gong.
The applicant arrived in Australia on 8 March 2009 on a Student Visa using a Chinese passport which had been issued to him on 24 October 2006. On 12 January 2010, the applicant applied for the Protection Visa. On 23 March 2010, the delegate refused to grant the Protection Visa and on 21 July 2010 the applicant applied to the Tribunal for review of the delegate’s decision.
The Tribunal gave its decision on 21 October 2010 affirming the decision of the delegate. The Tribunal did not accept that the applicant was a witness of truth.
The Tribunal’s comprehensive reasons for coming to these conclusions are summarised in the following paragraphs of its reasons:
“110.When considering the evidence as a whole, the Tribunal finds that these inconsistencies between the applicant’s evidence to the Department of Immigration and Citizenship and his evidence to the Tribunal, the internal inconsistencies within his oral evidence to the Tribunal, the delay in him lodging his Application for a Protection Visa, his reasons for lodging the Application for a Protection Visa and his lack of knowledge of the Falun Gong exercises raise serious concerns in relation to the applicant’s credibility and the veracity of his claims. When giving evidence to the Tribunal, the applicant was often evasive and non responsive. He admitted to the Tribunal that he had not been truthful in his written statement to the Department of Immigration and Citizenship and had fabricated some of his claims. He also stated that he lodged his Application for a Protection Visa so that he could obtain a Bridging visa, which would allow him to work in Australia. For the reasons referred to above, the Tribunal finds that the applicant is not a witness of truth and was prepared to fabricate his claims to give himself the profile of a refugee.
111.The Tribunal does not accept that the applicant is a Falun Gong practitioner, that he was summoned to the Police Station many times, that he was sentenced to gaol for one and half months, that he suffered terribly because he practiced Falun Gong, that he had difficulty obtaining his passport because he was a Falun Gong practitioner, that he was bullied in China because he was a Falun Gong practitioner and that the leaders at his place of employment have him the dirtiest and meanest jobs because he was a Falun Gong practitioner.
112.The Tribunal does not accept that the applicant was arrested and beaten up because he was a Falun Gong practitioner, that he and his wife were warned not to practice Falun Gong any more, that he had to sign a written statement that he would not practice Falun Gong anymore, that he was detained for two days because he was a Falun Gong practitioner, that he was fined because he was a Falun Gong practitioner and would not be released until he paid the fine, that police officers went to his home several times to check on whether he was practising Falun Gong, that he has practiced Falun Gong in Australia and that he delayed lodging his Application for a Protection Visa because he was afraid that the Chinese authorities would find out.
113.In view of the above findings, the Tribunal finds that there is no real basis for the applicant’s claims to fear persecution. The Tribunal is satisfied that if the applicant returns to China there is no real chance that he will be arrested and detained by the Chinese authorities for a Convention based reason. The Tribunal is therefore satisfied that there is no real chance that the applicant will be at risk of persecution should he return to China.
114.Accordingly, the Tribunal finds that the applicant does not have a well founded fear of persecution on the grounds of religion or any other Convention ground now or in the reasonably foreseeable future and that there is no real chance that he will be at risk of persecution if he returns to China now or in the reasonably foreseeable future.”
The applicant filed his Application and supporting affidavit in this court on 18 November 2010. The applicant gave his grounds for the application as:
“RIT decision is wrong, missing information.” [sic]
On 22 December 2010, in the presence of the applicant and counsel for the respondents, orders were made by a Registrar which included orders that permitted the applicant to file and serve an Amended Application and such further material, including the transcript of proceedings before the Tribunal, that the applicant may wish to rely upon. In addition, the applicant (and first respondent) were ordered to file and serve Outlines of Submissions prior to the hearing which was listed for 11 April 2011.
The applicant declined to file any further documents prior to the hearing. The first respondent filed an Outline of Submissions which it attempted to serve upon the applicant at his address for service. At the hearing the applicant informed the court that he had not received the first respondent’s Outline of Submissions. Before hearing any submissions, I adjourned the hearing to allow the interpreter to read the First Respondent’s Outline of Submissions to the applicant.
When the hearing recommended the applicant indicated that he relied on his affidavit filed on 9 February 2011. Much of this affidavit was irrelevant to the question of jurisdictional error and merely sought to re-agitate factual matters that had been determined by the Tribunal.
I nevertheless invited the applicant to expand upon his submissions and gave what guidance I considered appropriate.
As will be seen from the paragraphs from the Tribunal’s reasons detailed above, the Tribunal had many reasons for coming to the conclusion that the applicant should not be believed. In his submissions, the applicant identified one of the factors that the Tribunal took into account in making its credibility finding, namely, that the Tribunal had requested the applicant to demonstrate what is known as the Fourth Exercise practiced by Falun Gong adherents, and the applicant was unable to correctly name the exercise or demonstrate how it should be carried out. The applicant said that when he was before the Tribunal, he attempted to explain away his inability to name or demonstrate the Fourth Exercise on the basis that he mistakenly believed that the Tribunal were referring to the First Exercise.
Before this Court the applicant again submitted that there was a misunderstanding about which exercise the Tribunal was asking the applicant to name and demonstrate. I allowed the applicant to put this submission notwithstanding that the applicant had declined to place the Tribunal’s transcript before this Court. Even if the applicant had properly proven that what he said was true, which he did not, this attack on the Tribunal’s credibility finding does not establish jurisdictional error.
The Tribunal’s published reasons indicate that the applicant was alerted to the Tribunal’s concern about the applicant’s credibility and that this was an issue for the purpose of s.425 of the Act.
Credibility findings are matters for the Tribunal. The finding on credibility was clearly open to it on the material that was before it.
The first respondent’s submissions were prepared without particulars being provided of the brief ground for the application as detailed earlier in these reasons. The first respondent’s submissions were therefore put forward in a general way.
It was submitted on behalf of the first respondent that, to the extent that the applicant invited the court to review the merits of the Tribunal’s decision, this is an impermissible course for the court to take.[1]
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The first respondent further submitted that, to the extent that the applicant suggested that the Tribunal did not have all relevant information before it, or otherwise failed to have regard to relevant material that, firstly, it was for the applicant to provide to the Tribunal whatever evidence or argument he wished to advance in support of his claims.[2] It is not for the Tribunal to make the applicant’s case for him and the Tribunal is not obliged to stimulate elaborations of matters that the applicant did not choose to pursue. It was not required to act as his “nurse maid”.[3] The Tribunal is under no obligation to enquire about or seek information not presently available or put before it by the applicant. It was further submitted that the Tribunal properly considered all relevant information before it.
[2] ABEBE v The Commonwealth of Australia (1999) 197 CLR 510 at page 187.
[3] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at pages 199-200.
Finally it was submitted on behalf of the first respondent that credibility findings are matters for the Tribunal and an adverse credibility finding was a finding that was clearly open on the material before it.[4] The Tribunal set out the concerns that it had with the applicant’s written and oral evidence and having reached the conclusion that the applicant was not a witness of truth, it proceeded to reject each of the applicant’s core claims. It was submitted that the Tribunal’s approach did not reveal any error, let alone any jurisdictional error.
[4] Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547; W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at para 64.
I agree with and accept the submissions put on behalf of the first respondent.
The application should be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate:
Date: 12 May 2011
0
8
1