SZCZX v Minister for Immigration

[2007] FMCA 1588

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCZX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1588

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong practice – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.422B, 424A, 425

Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61

Minister for Immigration & Multicultural Affairs v NAMW & Ors (2004) 84 ALD 325
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
VJAF v Minister for Immigration & Multicultural Affairs [2005] FCAFC 178

Applicant: SZCZX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3257 of 2006

Judgment of: Smith FM

Hearing date: 5 September 2007

Delivered at: Sydney

Delivered on: 5 September 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms L Clegg

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3257 of 2006

SZCZX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant has applied for a protection visa, on the ground that he fears persecution if he returns to the People's Republic of China. 

2. He claimed that he commenced to practice Falun Gong in 1996.  With a friend, he organised up to 400 practitioners at two practice stations in his city, before the Chinese government prohibited the practice of Falun Gong in 1999.  He was then arrested, detained and exposed to “various cruel punishments”, before being released after three months.  He was dismissed from his employment, and his wife divorced him.  He then secretly organised a small Falun Gong practice group, until again being arrested, mistreated and detained for four months in 2001.  He was then placed under surveillance of the PSB and the neighbourhood committee, but again began to re-organise his Falun Gong practice group in 2002. 

3. His statement accompanying his protection visa application concluded:

   Unfortunately I was informed by a good friend in the government that our group once again came to the special attention of the government after October 2002.  At that time, I already got my passport through helps of that friend, and therefore I immediately asked him to arrange my visa, because I realised the big trouble was coming. 

   With the power of Falun Dafa, I eventually came to Australia before the Chinese government tried to catch me. …

4. A delegate of the Minister refused the visa application on 18 February 2003, and this decision was affirmed by the Refugee Review Tribunal in a decision handed down on 5 October 2006.  An earlier decision of the Tribunal, handed down in February 2004, was set aside by order of this Court in May 2006. 

5. The Tribunal reviewed all the evidence presented by the applicant to the Tribunal, including evidence given by the applicant and his witness at a hearing conducted on 4 September 2006.   The Tribunal also reviewed documentary evidence, including a witness statement from a person who claimed to have known the applicant in 2003 when practising Falun Gong in Burwood Park, photographs showing him engaging in Falun Gong demonstrations in 2006, and two documents purporting to corroborate some events in China. 

6. The Tribunal was not satisfied as to the truth of the applicant's claimed involvement with Falun Gong in China, nor of the harms which he claimed to have suffered.  It presented several reasons for these conclusions, including its opinion that applicant’s knowledge of Falun Gong did not appear consistent for a person with the extensive involvement claimed by the applicant.  It said that the applicant's evidence about his practice of Falun Gong in Australia was “inconsistent and vague”, and also revealed an inconsistency with the evidence of his witness as to his recent Falun Gong practice.  The Tribunal was not satisfied that any “significant weight” could be placed on the supporting evidence presented by the applicant, and explained reasons for this. 

7. Addressing the applicant’s claimed history of persecution in China, the Tribunal pointed to inconsistencies with the applicant's passport, showing that he had held an earlier passport, and had made a trip to Australia and returned to China in early December 2002, before again departing from China using his passport at the end of December 2002.  The Tribunal did not accept his explanations for these matters, for reasons which it explained.

8. It addressed the two documents purporting to originate in China in 1999, and pointed to reasons for doubting their authenticity.  It was not satisfied that they could be relied on as evidence in support of the applicant's claims. 

9. The Tribunal therefore concluded:

   I am not satisfied that the Applicant is, as he claims to be, a Falun Gong practitioner or that he has had any significant involvement with Falun Gong in China or Australia.  I am not  satisfied that he was ever arrested, detained and tortured, that he was placed under surveillance after his release or that he was dismissed by his employer because of any Falun Gong involvement.  I am not satisfied that he has a well-founded fear of persecution because of his religion or for any other Convention-related reason should he return to China now or in the reasonably foreseeable future and I am not satisfied that he is a refugee.

10. The applicant now asks the Court to set aside the Tribunal's decision and to order it to reconsider his refugee claims.  I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error.  I do not have power to decide whether the applicant's refugee claims are true, nor whether he should be granted a protection visa or any other permission to stay in Australia.

11. The applicant's grounds for his application to the Court were reformulated and presented with arguments, in an amended application prepared with the assistance of a free legal advisor to whom he was referred by the Court.  He also made further submissions today reading from a prepared written submission in Chinese. 

12. The first ground in the amended application contends that the Tribunal acted in breach of s.424A of the Migration Act 1958 (Cth) and of the requirements of procedural fairness, by failing to put to the applicant for comment independent country information relied upon by the Tribunal. However, the argument in support of that ground fails to address the significance of s.422B of the Migration Act, which was in force in relation to the matter before the Tribunal. That section renders s.424A an exhaustive statement of the requirements of procedural fairness in relation to the putting of adverse information to an applicant (see Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62). As was held in Minister for Immigration & Multicultural Affairs v NAMW & Ors (2004) 84 ALD 325 and VJAF v Minister for Immigration & Multicultural Affairs [2005] FCAFC 178 at [15], section 424A(3)(a) excludes all obligations under s.424A(1) in relation to general country information. Ground 1 cannot, therefore, be upheld.

13. Ground 2 in the amended application argues that a breach of s.424A, or some other procedural error, occurred by reason of an error made by the Tribunal in a s.424A(1) letter which was sent to the applicant, dated 5 September 2006. In that letter, several matters were put to the applicant for his comment concerning his passport and travel. It was also put to the applicant that there was an inconsistency between the evidence of his witness that they practised together at weekends “in Parramatta and in parks at Central Station and in Ashfield”, and his own evidence that he “practised in Parramatta, Campsie and Ashfield”.

14. In response to the letter, the applicant identified a confusion on the part of the Tribunal as to the evidence which had in fact been given by the applicant and his witness.  The applicant referred to listening to the tapes, and said:

    Ms X (the witness) and I both stated that we go to study Fa … in the Parramatta City Council every Friday evening … Ms X also stated that most of the time she and I practice Fa Lun Gong at Home. Ms X further stated that we practice Fa Lun Gong with others …at the park close to Central Station and in Burwood. Ms X  did not say she and I practiced Fa Lun Gong in Ashfield.  I also stated I lived at a friend’s home in Ashfield when I came back for weekends from Brisbane, and I went to pick up a friend living in Campsie and go to practice Fa Lun Gong together with him in Campsie.  The friend living in Ashfield is different from the friend in Campsie.  I don’t always practice Fa Lun Gong with Ms X (the witness) and neither does she with me.  At the hearing I did not mention about Central Station and Burwood is because I thought they are not the regular practice sites I go to and I go to these two places basically for different Fa Lun Gong activities.

15. As the applicant's amended application states:

    The error in the s.424A letter is recognised and purportedly corrected by the Tribunal in its decision at paragraph 2, page 155 of the Green Book, but it is submitted that this error by the Tribunal led to confusion and that any inconsistency in the evidence in this regard arose because of the Tribunal's own actions.  For the Tribunal then to rely on that confusion or inconsistency amounts to a jurisdictional error.

16. However, I do not accept that any jurisdictional error is revealed by the relevant passage in the Tribunal's reasoning.  That passage was:

    I have also considered the evidence given by the applicant's friend at the hearing.  I accept that the Tribunal’s letter to the Applicant of 5 September 2006 was partly in error in identifying a discrepancy between her evidence and his concerning sites where they practiced in Sydney, as the Applicant himself points out in his written response.  However, a clear discrepancy remains between the evidence given by the Applicant and the witness in this area.  As acknowledged by the Applicant in his written response, the witness stated at the hearing that she and he practiced at weekends in Parramatta, Central Station and Burwood, while he claimed that he practiced only in Parramatta and Campsie.  I am not satisfied as to the plausibility of the Applicant’s further explanation that he did not mention practicing in Central Station and Burwood “because I thought they were not the regular practice sites I go and I go to these places basically for different Fa Lun Gong activities”.  On the basis of this discrepancy I am not satisfied that any significant weight can be placed on the evidence of the witness in support to the Applicant’s claim to be a Falun Gong practitioner.

17. In my opinion, this paragraph does not show any breach of s.424, nor does it reveal any failure by the Tribunal to comply with obligations under s.424A(1). As a result of the applicant’s correction of the Tribunal's earlier misapprehension, the Tribunal did not rely upon an incorrect view of the evidence given by the applicant's witness.

18. I accept that the Tribunal’s 424A letter did not put to the applicant that the witness had referred to their practicing together at Burwood. However, the applicant’s response identified that she had given that evidence to the Tribunal, and made it clear that he understood that this was her evidence. He, therefore, himself re-presented her evidence to the Tribunal in his response to the 424A letter. As a result, this information did not need to be put to the applicant again in a further 424A letter (see s.424A(3)(b)).

19. When the Tribunal came to make its decision, it was plainly not acting under any confusion as to the evidence given by either the applicant or the witness.   In my opinion, this ground ultimately amounts only to an argument as to the merits of the Tribunal’s reliance upon the inconsistency in the evidence of the applicant and his witness, and of its failure to be persuaded by the explanation given by the applicant.  However, an assessment of these matters fell within the jurisdictional province of the Tribunal.

20. Ground 3 in the amended application, in effect, makes the same argument.  In its terms, it does not contend any jurisdictional error:

    The Tribunal erred more generally by placing too much weight on minor matters said to provide evidence of inconsistencies.

21. In my opinion, the argument presented in support of this proposition also raises only matters of merit.  It answers the discrepancy identified by the applicant in his response to the 424A letter, by submitting that the applicant had referred at other points in his evidence to having practiced sometimes in Burwood.  However, it appears to me that the applicant had, in fact, referred only to practising at Burwood during his first years in Australia, and not during the period covered by the evidence of his witness.  In any event, these points in my opinion were purely matters of assessment of evidence, and any error by the Tribunal was an error of fact only, not amounting to jurisdictional error.

22. Ground 4 of the amended application contends that the Tribunal made an error when putting emphasis on the failure of the applicant, in his original statement accompanying his visa application, to refer to his earlier travel to Sydney and his failure to make a protection visa application at that time. 

23. He told the Tribunal, when seeking to explain these events, that he had received a “second warning” when he returned which made him scared and caused him to decide to leave China permanently. He said that he had forgotten to mention this in his visa application statement. When the omission was put to him in the s.424A letter, he responded by referring to a passage in reasons of the first Tribunal, stating that he had given evidence at a hearing in October 2003 that on his return to China he had heard “that he and a Falun Gong colleague were wanted by the police”. 

24. The applicant now argues that the present Tribunal failed to take into account the fact that the applicant explained his return to China and his second departure, when he gave evidence at the first Tribunal hearing.  However, I am not persuaded that the Tribunal failed to consider the evidence given to the first Tribunal.  It was given emphasis in the applicant's response to the 424A letter, which the Tribunal extracted in full in its statement of reasons.  The applicant’s response did not provide a complete answer to the omission of this pertinent part of the applicant’s history from the statement accompanying the visa application.   That statement, with its omission, had been duplicated and provided to the Tribunal when the application for review was lodged. 

25. I am not persuaded that the Tribunal failed to take into account a relevant matter, when assessing the significance of the applicant's failure to recount the history of the second warning in his original visa application statement. 

26. The applicant’s submissions today addressed some of the above points, and he also argued that the Tribunal had not considered the supporting documents presented to the Tribunal in the course of its proceedings.  However, the Tribunal expressly identified all the supporting documents and photographs, and provided reasons why they did not cause the Tribunal to believe the history given by the applicant in the face of the problems it found in his oral evidence.  In my opinion, the Tribunal's reasoning in relation to the supporting evidence was open to it, and disclosed no jurisdictional error. 

27. The only other point made by the applicant in his submissions today was that "the interpreter did not do well at the hearing", and that this affected how the Tribunal decided his case. His only illustration of a failure of interpretation was the error, originally reflected in the Tribunal’s s.424A letter, whether the applicant claimed to have practised Falun Gong at Ashfield. However, it appears to me that this error reflected an understandable confusion by the Tribunal in relation to some evidence given by the applicant, rather than a failure of competent interpretation of the applicant’s evidence at the hearing. As I have indicated, the confusion was then corrected by the applicant in his response to the 424A letter.

28. The applicant has not presented any evidence showing a general failure to provide a competent standard of interpretation, nor any particular defect in interpretation having a material effect on how the Tribunal decided the case (see Perera v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 231, VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723, and M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [34]-[39], [48]-[51]). I am therefore not persuaded that the applicant was denied the opportunity required by s.425 of the Migration Act in relation to the provision of interpretation services.

29. I have considered all the arguments presented to the Court in the amended application and by the applicant, and have not been persuaded that he has established any jurisdictional error affecting the Tribunal's decision.   I must therefore dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  24 September 2007