NBKV v Minister for Immigration - [2005] FMCA 1761

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBKV v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1761

MIGRATION – Review of decision of Refugee Review Tribunal – applicant claims persecution in PRC as Falun Gong practitioner – applicant claims independent country information should have been provided pursuant to s.424A of the Migration Act 1958 (Cth) – applicant claims RRT made wrong findings of fact.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; 483

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth of Australia [1999] 197 CLR 510

Applicant:

NBKV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG718 of 2005

Judgment of:

Emmett FM

Hearing date:

23 November 2005

Date of Last Submission:

23 November 2005

Delivered at:

Sydney

Delivered on:

14 December 2005

REPRESENTATION

The Applicant appearing on her own behalf

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Mr I. Muthalib, Blake Dawson Waldron

ORDERS

That the applications before this Court are dismissed.
That the Applicant pay the Respondent’s costs in an amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG718 of 2005

NBKV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant was born in Shanghai, People Republic of China (“the PRC”) and claims to be a Chinese citizen.
The Applicant claims to belong to the Han ethnic group and claims to have been a practitioner of Falun Gong in the PRC since 1997 and since arriving in Australia on 16 May 2004.
On 24 May 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that if she returns to the PRC she will be persecuted by the Chinese government and police for her Falun Gong beliefs and practices.
On 25 May 2004, the Delegate refused the application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 29 June 2004, the Applicant lodged an application for review before the Tribunal. On 9 February 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 February 2005, the Applicant filed an application and affidavit in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Short Minutes of Order made on 9 March 2005, the Applicant filed an amended application on 25 May 2005 (“the Amended Application”).

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The proceeding in this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that she relied on the grounds identified in her Amended Application.
I understand from the Applicant’s grounds and her submissions this morning that she makes the following claims:
a)That certain independent country information should have been provided to her prior to the hearing.
b)That the Tribunal did not accept various claims by the Applicant, in particular, the Tribunal disbelieved the Applicant when she claimed that Falun Gong was banned on 20 July 1999.

Ground 1 – independent country information

I understand that Applicant’s claim in relation to this ground to relate to independent country information accepted by the Tribunal over the evidence of the Applicant, particularly in relation to her claims that Falun Gong was banned in the PRC on 20 July 1999 and that it was declared an evil cult in October 2001.
On 5 October 2004 the Applicant gave oral evidence to the Tribunal, with the assistance of a Mandarin interpreter. The Applicant’s migration agent also attended the hearing.
The Applicant claimed that she was persecuted in the PRC due to the “religious belief in Falun Gong”, which, she claimed, she commenced practicing for health reasons in early 1997. The Applicant claimed that, on 9 November 2001, she was arrested by the police whilst distributing Falun Gong materials and was detained for a week. She claimed that, on 16 November 2001, she was sentenced to re-education for one year at a reform camp. She claimed that she and other Falun Gong members were mistreated at the camp. The Applicant claimed she was released from the camp on 8 November 2002, went to live with her mother and was required to report to police every month.
The Tribunal accepted that the Applicant is a national of the PRC.
The Tribunal challenged her on the genuineness of various documents that she provided to the Tribunal in support of her claims. The Tribunal also asked the Applicant various questions about her Falun Gong practice.
The Tribunal noted that it asked the Applicant what happened in October 1999, that the Applicant paused, looked at her migration agent before replying, that she could not think off the top of her head and then said that, in 2000 and 2001, there were many significant events. The Tribunal put to her that the event, to which the Tribunal had regard, was when Falun Gong was declared an evil cult. The Tribunal noted that the Applicant responded adamantly that that event occurred in October 2001.
The Applicant claimed that, in July 1999, Falun Gong became illegal and its members were arrested, detained and sentenced to re-education through labour by the Chinese authorities. The Applicant claimed that she continued to practice Falun Gong and distribute material. The Tribunal also noted, in the Findings and Reasons section of its decision, that the Applicant stated that Falun Gong was banned on 20 July 1999. In the Claims and Evidence section of its decision, the Tribunal noted that independent country information identified the date as 22 July 1999.
The Applicant claimed that the Tribunal misunderstood her evidence that on 20 July 1999, Falun Gong was banned. She sought to tender to this Court a document that she claimed was accessed by her on the website and supported her evidence on that point. The First Respondent objected to the tender on the basis that it was in Chinese, untranslated and, in any event, was irrelevant to the judicial review of the Tribunal’s decision, in circumstances, where that document was not before the Tribunal. For those reasons, I rejected the tender.
In any event, the Applicant’s evidence as to the date Falun Gong was banned in the PRC, namely 20 July 1999, whereas the independent country information had the date being 22 July 1999, does not seem to have formed part of the reasons for the Tribunal’s adverse credibility findings. Rather, the adverse credibility findings arise from the Applicant’s general demeanour and content in answering questions. This includes, relevantly, the Applicant’s adamant response that Falun Gong was declared an evil cult in October 2001, rather than October 1999, which was the date identified by the independent country information.
The Applicant submitted that s.424A(1) required the Applicant to be given the independent country information, in accordance with s.441A of the Act, inviting her to comment on it prior to the hearing.
It is generally accepted by the authorities that s.424A(3)(a) is intended to refer particularly to independent country information and other independent information (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 139; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16]).
It is clear that the information, identified by the Applicant in her Amended Application as being independent country information which, she claims, should have been given to her pursuant to s424A(1), is independent country information. This includes the information relating to the dates upon which Falun Gong was banned and declared an evil cult in the PRC. Such information is therefore excluded from the requirements of s.424A(1) by s.424(3)(a).
Moreover, the evidence of the Applicant, as to the date upon which Falun Gong was banned in the PRC and the date on which Falun Gong was declared an evil cult in the PRC, is information given to the Tribunal by the Applicant for the purposes of her review application. Information provided by the Applicant in such circumstances is excluded from the requirements of s.424A(1) of the Act by s.424A(3)(b) of the Act.
Further, the Tribunal put to the Applicant the independent country information about the date on which Falun Gong was banned and was declared an evil cult, where it was inconsistent with the Applicant’s assertions. By doing so, the Tribunal discharged any residual obligation of procedural fairness.
It is a matter for the Tribunal to make findings of fact on the material before it and it is not necessarily a jurisdictional error to make a wrong finding of fact. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]). Certainly, in the proceeding before this Court, the Tribunal preferred the independent country information over the evidence of the Applicant. Such findings were open to the Tribunal, on the material before it (NAHI at [10]).
Section 422B of the Act, states that Division 4 of the Act, of which s.424A of the Act is a part, is to an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
In the circumstances, no obligation was owed by the Tribunal to provide the Applicant with copied of the independent country information to which it had regard in its decision.
Accordingly, this ground is rejected.

Ground 2 – failing to accept the Applicant’s evidence

The Applicant also made submissions that the Tribunal was wrong in finding that her evidence was fabricated and the finding that the way in which she gave her evidence was “evasive”.
The Tribunal’s findings in respect of the Applicant’s credibility are as follows:
a)The Tribunal concluded that the Applicant had “not been entirely truthful” and had fabricated her claim of being a Falun Gong practitioner in the PRC since 1997.
b)The Tribunal based its conclusion on its observation of the Applicant giving evidence.
c)It noted that the Applicant failed to immediately and directly answer questions of her, although the Tribunal noted that she otherwise displayed a confident and assertive manner at the hearing. The Tribunal did not accept the migration agent’s submission that anxiety affected her ability to respond to questions.
d)The Tribunal found that the Applicant was evasive in her answers. The Tribunal further did not accept that, any difficulty the Applicant may be having, was related to her level of education given that she had 11 years of education.
e)The Tribunal found that, whilst the Applicant displayed some basic knowledge of Falun Gong, otherwise her evidence about Falun Gong was “vague, unconvincing and inconsistent” with independent information considered by the Tribunal.
f)The Tribunal did not accept the evidence of the Applicant, that Falun Gong was declared an evil cult in October 2001, preferring the independent country information that it was declared an evil cult in October 1999.
g)The Tribunal found “cumulatively” that the Applicant’s evidence led it to have serious doubts about the Applicant’s credibility and the truthfulness of her claim of being a Falun Gong practitioner in the PRC.
The Tribunal also put to the Applicant its concerns about the 2 letters submitted by the Applicant, one from her daughter and one from her mother, in support of her claims. The Tribunal noted that it put to the Applicant that the letters seemed contrived. The Tribunal also put to the Applicant its concerns about the genuineness of a document claimed by the Applicant to be the decision letter sentencing her to the labour camp. The Tribunal noted that it raised with the Applicant its concerns about bribery and corruption in the PRC and put to the Applicant that it could be quite possible to get “an official looking document through bribery and corruption.” The Applicant responded that the letters from her mother and daughter were genuine, as was the copy of the decision sentencing her to labour re-education.
The Tribunal also heard evidence from a friend of the Applicant in relation to the Applicant’s Falun Gong activities in Australia. The Applicant’s migration agent made submissions on her behalf to the Tribunal. The Tribunal also had regard to other independent evidence that it identified in its decision.
The Tribunal had regard to the letters from the Applicant’s mother and daughter and found that they were contrived. The Tribunal based that finding on concerns it expressed in its decision about the form and substance of the letters. Moreover, the Tribunal, noted that, its findings in respect of the letters would not have been significant, had it found the Applicant credible, or, had the Tribunal had only minor doubts about the truthfulness of the Applicant’s claims to be a Falun Gong practitioner in the PRC. However, the Tribunal found that, “given the applicant’s unreliability as a witness the Tribunal is not satisfied that the letters are authentic”.
The Tribunal had similar difficulty in accepting as genuine the letter provided by the Applicant of the decision to sentence her to the labour camp for one year.
Ultimately, the Tribunal found that the Applicant invented the claim that she has been a Falun Gong practitioner in the PRC since 1997.
However, the Tribunal did accept that the Applicant has participated in Falun Gong activities in Australia. Nevertheless, the Tribunal concluded that, in light of the Tribunal’s findings of fabrication by the Applicant of claims of being a Falun Gong practitioner in the PRC, the Tribunal found that the Applicant engaged in those activities for the purpose of assisting her refugee claims. The Tribunal found that, as the Applicant was not a Falun Gong practitioner in the PRC and engaged in Falun Gong activities in Australia to strengthen her refugee claim, the Applicant has no desire to, nor will she, practice Falun Gong if she returns to the PRC.
The Tribunal therefore concluded that it was not satisfied that the Applicant has a well founded fear of persecution in the PRC for a Convention reason and for that reason she is not a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.
It was open to the Tribunal to accept or reject the Applicant’s claims and to make adverse credibility findings in respect of the Applicant’s evidence. It is for the Tribunal to decide if the Applicant’s claims are made out (Abebe v Commonwealth of Australia [1999] 197 CLR 510 at 576). The findings made by the Tribunal in the proceeding before this Court were findings of fact that were open to the Tribunal on the material before it and for which the Tribunal provided reasons in support.
In those circumstances, there is no jurisdictional error in the Tribunal’s decision.

Conclusion

There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the applications before this Court are dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 29 November 2005