SZDOE v Minister for Immigration - [2004] FMCA 1042

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOE v MINISTER FOR IMMIGRATION

[2004] FMCA 1042

MIGRATION – RRT decision – Falun Gong practitioner disbelieved – Tribunal refusing adjournment and requesting demonstration – no breach of procedural fairness – no error in reasoning.

Migration Act1958 (Cth), ss.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 67 ALD 56
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597

Applicant:

SZDOE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1405 of 2004

Delivered on:

26 November 2004

Delivered at:

Sydney

Hearing date:

26 November 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1405 of 2004

SZDOE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 31 March 2004 and handed down on 27 March 2004. The Tribunal affirmed a decision of the respondent’s delegate, which refused to grant a protection visa to the applicant.
Under s.483A the Court has "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". That jurisdiction of the Federal Court is its general judicial review jurisdiction conferred by s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court, the limitations require that I must be satisfied that the Tribunal decision was defective by reason of a serious legal error which can be characterised as jurisdictional error before I can set aside the Tribunal decision. I do not have the power myself to decide whether the applicant is a refugee nor do I have power to decide whether the Tribunal's decision was correct or incorrect as a matter of fact. Under Australian laws the Tribunal has the final decision on that issue.
Before turning to consider the Tribunal's decision and the grounds of review raised by the documents filed by the applicant I should indicate some background to today's hearing.
Today's hearing was listed by direction of the Registrar at the first hearing date on 20 August 2004, at which the applicant attended with and was assisted by a Mandarin interpreter. She was directed to file and serve an amended application and any affidavit material before 1 October 2004. Before the directions hearing, an affidavit had been filed on 18 May 2004 to which I shall refer to below. No further affidavit evidence was filed on behalf of the applicant. An amended application was filed on 3 November 2004 and the applicant appeared today and was assisted by an interpreter.
The applicant expressed no difficulties with proceeding with the hearing when the matter was first called on today. I adjourned it briefly to allow the Minister an opportunity to read the applicant's affidavit and her amended application, since these had not been served on the Minister's solicitors.
I then made it clear to the applicant that if she wanted me to rely on her affidavit she would have to agree to be cross-examined by counsel for the Minister. At that stage the applicant became equivocal as to whether she wanted her matter to proceed either at all or today. I adjourned briefly to give her an opportunity to make a decision about how she wanted to proceed, and to consult her friend who had accompanied her. It is unclear to me what was the professional status of that friend, because the applicant at times seemed to refer to her as her lawyer. However, the court file does not indicate that the applicant has ever been represented by a qualified legal representative.
The applicant then announced that she did not want to give evidence because her mind was not clear today. She said she was not feeling very well and said that this was because she had been surprised to discover that the hearing was being conducted in a Federal Court and not a Local Court. She had no evidence to show me of any illness or medical condition affecting her today. I declined to adjourn the case, and proceeded with the hearing. In view of her refusal to expose herself to cross-examination, I have not been able to give much weight to a paragraph in her affidavit which I will set out below.
The claims put forward by the applicant to satisfy the definition of "refugee" in the convention were in my view accurately summarised by the Tribunal as follows:
The applicant was born in 1961 in Liaoning. She is married. Her husband remains in China. She worked as a self-employed cigarette wholesaler. She obtained a Chinese passport in February 2003 and her Australian visa on 15 July 2003. She departed China legally on 1 August 2003. She states that she paid a large sum to get a passport. She has no convictions or outstanding charges or investigations against her.
Her claims in her primary application are as follows. She was a tobacco street seller. Her health was deteriorating and her life was miserable. Falun Gong was instrumental in solving these problems. She co-ordinated “spreading the word of Falun Gong against her customers, under the tutelage of her immediate teacher and master, XX. She was very successful in gaining membership for her Falun Gong community. XX made her secretary of the group. It grew to around 80 persons. She soon came to the attention of the police. She thinks one of her customers who did not appreciate Falun Gong reported her. First she was questioned. After some days she was arrested and taken into custody. XX was also arrested. She does not know what became of him. She was released after about three days. She assumed that XX “exonerated her from the elite membership of the group” and after that the police interest in her was minor. She soon realised she must leave China as the true extent of her involvement with Falun Gong was likely to surface. She fears that if she returns she will be arrested for her role as secretary of her Falun Gong group.
There is a declaration on the DIMIA file from the applicant’s advisor, counter signed by her, to the effect that her application is very unlikely to succeed.
The delegate based her decision essentially on the vagueness and lack of detail or substance in the primary application, on the fact that she departed China legally on a passport in her own name indicating that she was not of adverse interest to the authorities, and on country information indicating that generally the authorities have targeted Falun Gong leaders and organisers rather than ordinary members.
In her review application the applicant does not address any of these points. She contests the delegate’s decision on the grounds that she was not given an interview where her claims could be tested.
The Tribunal then sets out an extensive description of what occurred in the course of a hearing conducted on two days, firstly on 11 March 2004 and resuming on 16 March 2004. I shall return below to describe the procedures followed at the hearing, but at this point I note that the Tribunal appears to have explored very thoroughly with the applicant her written account in her refugee protection visa application, and in the course of his questioning to have noted many inconsistencies in the applicant's responses. The Tribunal describes what happened at the end of the first day of the hearing:
I said I wanted to test her knowledge of basic Falun Gong philosophy. As she said she was a teacher I expected her to know the basics of Falun Gong belief. She said she did not know the theory or philosophy. She just taught the exercises.
The adjournment then occurred, and at the resumed hearing the Tribunal asked her to describe and demonstrate the five sets of movements or exercises which make up the practice of Falun Gong, and which are fully illustrated and described in material that was in front of the Tribunal and is now in the Court Book. Most of them do not appear to be physically demanding. The Tribunal says that the applicant’s description and demonstration was "full of faults", and that these were drawn to her attention and she was given the opportunity to explain or correct herself.
The Tribunal’s reasons then set out background information in relation to Falun Gong, and under the heading "Findings and reasons" says:
“I am unable to be satisfied she was a Falun Gong practitioner in China or that she was persecuted for being a practitioner.
I had considerable difficulty with the applicant’s credibility. …
The applicant claims that she was taught Falun Gong exercises in China. On the basis of the very deficient knowledge of the exercises she demonstrated at the hearing, together with her inability to correctly name all the exercises, I am unable to accept that she taught Falun Gong. Indeed, I do not accept that she practiced it at all in China. In making this latter finding I take into account her claim that she practiced, at least initially, with a group, which would imply that any shortcomings in her recollection of the movements would have been rectified by observing her co-practitioners in the course of their repeated practises.
Moreover, her oral evidence contains several very significant incongruities, contradictions and implausibilities
The Tribunal then explains what it thought were contradictions and implausibilities, and reaches its final conclusion:
On the basis of the evidence before me I am unable to be satisfied that the applicant has ever been a Falun Gong teacher or practitioner in China or Australia or that she was secretary of a practice group. I am unable to be satisfied that she ever came to the notice of the Chinese authorities for being a practitioner, that she was ever detained for that reason or that she would be of adverse interest to the authorities if she returns.
I find that the applicant does not have a well-founded fear of persecution for any Convention reason in China.
The applicant's amended application for review is a document that has been drafted by somebody with a smattering of legal knowledge. Its contentions appear to me to fall into two groups. The first group is raised by paragraphs 6, 7 and 8, and challenge as “unreasonable”, and “ignored relevant considerations” and “a constructive failure by the Tribunal to exercise jurisdiction” the Tribunal's conclusion and findings that I have set out above.
The particulars of this which are set out under paragraph 6 and 7, in my view, do no more than challenge the factual merits of the Tribunal’s conclusion. In my view, there is no substance to any claim that the Tribunal has unreasonably or improperly considered and dealt with all of the applicant's claims. I am not persuaded that the Tribunal has overlooked "possible memory failures in recalling specific details". I am not persuaded that the Tribunal did not take into account possible difficulties in relation to translation at the hearing. Indeed, there is no evidence before me that there were any difficulties in translation at the hearing and no evidence that any complaint about this was ever made.
The second group of contentions are those made under paragraph 9 of the amended application. These claim that there was a denial of procedural fairness in relation to how the Tribunal dealt with an adjournment application and health complaints which were made to it.
The Tribunal carefully records in its reasons the relevant events in a manner which, on the evidence before me, I accept is complete and accurate:
The applicant was initially invited in writing to give oral evidence at a hearing on 27 January 2004. She replied in writing on 21 January, asking for a postponement because of recent surgery. She attached a doctor’s certificate stating that she was recovering from surgery for a severe abscess. She was informed in writing by the tribunal that the hearing was postponed to 11 March. The Tribunal received another certificate, from the same doctor, on 8 March stating that the applicant had recently been ill because of an abscess and was currently troubled by the condition despite having had surgery. He states that “She claims that she is unfit to attend court [sic] which is scheduled on 11 March 2004. She requests a further adjournment of the hearing for one month.”
In view of the unusual nature of the doctor’s statement, the Tribunal contacted him by phone and asked what he meant in stating that it was the applicant, not he himself, who stated that she was unfit to attend the hearing. He said that this was what she had told him. He considered that she was not quite well after the surgery but it was “not a very strong case”. The Tribunal explained that at the hearing she would be seated at all times. He said that as far as he knew she was able to “shop around” so she would probably be able to attend the hearing. He said it was up to the Tribunal to postpose the hearing or not, but he did not think it would be a big problem for her to attend on 11 March.
The Tribunal rang the applicant on her mobile phone. It was answered by someone else who was with the applicant but whose English was poor, so the phone was passed to another person. He said the applicant does not speak English. The Tribunal undertook to ring back a few minutes later through TIS, with a Mandarin interpreter and asked him to explain to the applicant that it was important that the Tribunal speak with her. The Tribunal duly contacted TIS and a Mandarin interpreter was made available on the line. TIS rang the applicant, but then informed the Tribunal that at first her phone was constantly engaged and then, when TIS tried again the phone was answered but was immediately hung up by the person who answered. TIS called again and the same thing happened: the phone was answered and immediately hung up.
The Tribunal then contacted the applicant’s advisor by phone and explained in detail what had happened, including the Tribunal’s conversation with the doctor and what he had said. The Tribunal asked the adviser to contact the applicant and ask her to contact the Tribunal to discuss her health condition. The Tribunal said, that subject to that contact with the applicant, the hearing would go ahead as scheduled. The applicant did not contact the Tribunal but attended the hearing 11 March.
Her agent is Christine Zeng.
…
Hearing
The applicant gave her evidence in Mandarin, through an accredited interpreter.
I asked her how she was feeling. She said not very well. Her agent had advised her to attend the hearing.
I told her that the Tribunal received her medical certificate, and since her doctor said in it that she, not he claimed she was unfit to attend the hearing, the Tribunal spoke to him. He had said that she did not seem to be 100 per cent fit, but that he felt she was well enough to attend the hearing on the date scheduled. The applicant made no comment. I said the Tribunal tried to call her including through TIS several times. She said that she had received the calls, but after the initial call, in which the caller spoke English, the person who had been with her left. She received three more calls but as she did not speak English she did not take them. She said that her adviser had briefly related to her the conversations she (the adviser) had with the Tribunal. But the adviser had not told her that the Tribunal had asked that she ring in order to get more information about her fitness to attend. The adviser advised her to attend the hearing, so she did.
I asked her whether she felt able to answer the questions. She said that she was not sure but thought she would be alright. I said that on that basis I would proceed, but that if she felt unable to continue she should tell me immediately. She concurred. She said she was nervous. I said she should take her time with her answers and try to relax.
She confirmed that the claims in her primary application were complete and correct.
…
[after some questioning, and when the Tribunal told her that it wanted to test her knowledge of basic Falun Gong philosophy]
Although I did not detect she was having any visible problems, I asked how she was feeling and whether she was able to continue. She said that she felt “so-so” but was able to continue. However, I called a brief adjournment, after which she said she was not feeling well and asked whether the hearing could be adjourned and continued on another date. I agreed and adjourned to Tuesday 16 March.
When the hearing resumed, I asked her to name and demonstrate the five exercises. Based on her response I am not satisfied that she is a Falun Gong practitioner. She stated several times that she was nervous. I accept that it is fairly normal that applicants in hearings experience some level of nervousness. However, I do not accept that someone who has purportedly taught the Falun Gong exercises and who would therefore in the course of her teaching have named and performed them many times, would, even if nervous, be as deficient in her knowledge as the applicant proved to be.
Several complaints are made in the amended application in relation to the above proceedings, but they have no substance. In my view, the Tribunal gave the applicant the fullest opportunity "to address adverse allegations made against her by the Tribunal". There is no evidence that the Tribunal "forced the applicant to the Tribunal hearing when she was clearly unfit to participate".
There was no evidence before the Tribunal or before me that, in fact, the applicant was medically unfit to participate in a hearing on either 11^th or 16^th March. Dr Burkett's report of 7 March to which the Tribunal refers in the extract above plainly did not show this. It was, in my view, entirely proper for the Tribunal to contact the doctor and to clarify what he had said. On the Tribunal's narrative of what happened on the 11^th, the applicant did remain seated throughout the hearing on that day, and she was not asked to perform any demonstration until the resumed hearing.
This fact is but one of the difficulties facing acceptance of what the applicant said in her paragraph 7 of her affidavit of 11 May 2004:
That the Tribunal failed to recognize that I was ill for an extended time before the hearing and at the hearing. I was forced to perform at the hearing, exercises that were painful to me at the time, and therefore were contradictory to my health. The requested exercises were impossible for me to perform correctly because of my pain, state of mind and discomfort at the hearing. The Tribunal told me that I would be seated and in comfort at all times during the hearing. This was not the case.
As I have indicated above, the applicant declined to be questioned about this paragraph, and I have given little weight to it insofar as it contradicts the account of the hearing given by the Tribunal. The applicant did not seek to tender the tape or transcript of the Tribunal hearing. She has not established that she was in any material way incapacitated or unfit to represent herself at the hearing (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, and NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 67 ALD 56).
The decision of the Tribunal on the resumed hearing to request the applicant to demonstrate Falun Gong movements was, in my opinion, quite proper. It was an obvious and appropriate way to test the applicant's claim that she had been a teacher to numerous people of the practices of Falun Gong. On the Tribunal's account of what happened on that resumed hearing, no complaint was made by the applicant as to physical difficulties of demonstrating movements on that day. The Tribunal has taken into account her stated claim that she was "nervous". In my view, there was no denial of procedural fairness in relation to the Tribunal's request for the demonstration and reliance on its observations. I consider that it made no error in relying on its observations both as direct evidence of the applicant’s experience in and knowledge of Falun Gong practice, and as reflecting upon her credibility (c.f. WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597).

The applicant also alleged that “the Tribunal was or appeared to be biased”, claiming that this is demonstrated in the events I have narrated above. There is no substance to this allegation, and I reject it.
I consider that the applicant has failed to establish any denial of procedural fairness on the part of the Tribunal.
For the above reasons, I dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent's costs in the sum of $4500.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 19 January 2005