SZEGR v Minister for Immigration
[2005] FMCA 428
•1 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGR v MINISTER FOR IMMIGRATION | [2005] FMCA 428 |
| MIGRATION – Whether Tribunal considered evidence – whether bias shown. |
| Migration Act 1958, s.91X Federal Magistrate Court Rules, 21.02(2)(a) |
| The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (21 January 2000) |
| Applicant: | SZEGR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2642 of 2004 |
| Judgment of: | FM Nicholls |
| Hearing date: | 1 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2005 |
REPRESENTATION
| Applicant appeared in person. |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs set in the amount of $4000 pursuant to Rule 21.02(2)(a) of Federal Magistrate Court Rules.
Pursuant to section 91X of the Migration Act there is to be no publication of the Applicant’s name as it may appear in the transcript.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2642
| SZEGR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
I have before me an application filed in this Court on 25 August 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 July 2004 and handed down on 10 August 2004 which affirmed the decision of a delegate of the respondent Minister made on 30 April 2004 to refuse a protection visa to the applicant.
The applicant is a national of the People’s Republic of China who claimed to have a well-founded fear of persecution on his return to China, broadly on the grounds of religion, because he claims to be a practitioner of Falun Gong. The applicant’s claims in particular, are reproduced at Court Book 1 to 4.
In his application to the Court, the applicant claims:
1.“The Tribunal officer did not consider the oral evidence given by the applicant during my hearing at Refugee Review Tribunal.
2. The Tribunal officer refused to consider the evidence of the applicant’s case.
3.The Tribunal officer made jurisdiction mistakes did not explain the reasons why he refused the application.”
No particulars whatsoever are provided and nor has any evidence been submitted in support. In an amended application filed on 5 November 2004, the applicant in narrative form also asserts the following grounds:
1.“Bias on the part of the Tribunal.
2.The Tribunal found at Court Book 99.3
“that the applicant does not provide the Tribunal with any indication that he has experienced or is likely to experience any form of serious harm amounting to persecution for a convention related reason on this basis if he were to return to China now or in the foreseeable future or provide any other reason to believe that he has a well-founded fear of persecution for a convention reason on this basis”.
The applicant submitted that in making this finding the Tribunal ignored the applicant’s claims that police came to his home.
The applicant appeared before me unrepresented. He was assisted by an interpreter in the Mandarin language. I also note that the applicant did have access to the Court’s Legal Advice Scheme and received such advice on 21 October 2004. In the hearing before me the applicant variously repeated claims about mistakes made by his migration agent, asserted that his claims before the Tribunal were true, and that he had suffered persecution, but was unable to add anything of substance to the assertions made in the application and amended application. The applicant said that he relied on this written material.
It is clear on a plain reading of the Tribunal’s decision record at CB 83 to CB 99 that the applicant failed before the Tribunal on the basis that the Tribunal found the applicant’s claims not to be credible. The Tribunal had real doubts about the applicant’s identity, (see CB 94), and found his credibility to be affected by various inconsistencies in the claims made, (see CB 96), it did not accept that he was a Falun Gong practitioner and claims flowing from this, (see CB 98), nor that he had lost his job because of his Falun Gong practice, or that he had been detained and beaten by police. The Tribunal also specifically dealt with photographs submitted by the applicant showing him apparently practising Falun Gong in Australia and found that this was conduct in Australia undertaken to strengthen his refugee claims and pursuant to s.91R(3)(b) of the Act disregarded this conduct.
The applicant claims that the Tribunal did not consider oral evidence given at the hearing before the Tribunal.
The Tribunal’s decision record shows at CB 88.8 to CB 92 a lengthy reporting of the evidence given by the applicant, and at CB 94 to 99, it is clear that the Tribunal returned to each of the issues raised at the hearing and dealt with them in the section headed “Findings and Reasons”. The Tribunal however, rejected much of this evidence on credibility grounds, both in comparing the evidence to independent country information and on inconsistencies in the applicant’s evidence. The applicant is clearly not happy with the Tribunal’s decision, but a rejection of the applicant’s claims does not, in the circumstances before me, amount to a failure to consider the claims.
The applicant also asserts that the Tribunal refused to consider the evidence.
This is a similar assertion to the previous claim. The Tribunal’s finding on the applicant’s lack of credibility led it to its ultimate conclusion that he was not a Falun Gong practitioner and that he did not have a well founded fear of persecution for Convention reason The Tribunal, for the reasons given before, did consider the applicant’s evidence. The applicant before the Court has provided nothing beyond mere assertion to contradict this. Simply, the Tribunal did not believe the applicant. It made findings of fact, including findings on credibility which were open to it on the material before it. These are of course for the primary decision maker, “par excellence”. [McHugh J in the The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (21 January 2000)]
Further, the applicant also contends that the Tribunal did not explain the reasons why it refused the application.
On a plain reading of the Tribunal’s decision record, it gave extensive reasons for refusing the application for review. The Tribunal’s analysis was comprehensive in this regard. The applicant provides nothing beyond mere assertion to support this claim.
The applicant claimed bias on the part of the Tribunal and in support says:
a)That his migration agent made mistakes when filling out his application, as shown by the incorrect date of entry into Australia that was provided and that the failure of the Tribunal to accept that this was the agent’s mistake shows bias on the part of the Tribunal.
b)That the Tribunal relied on independent country information which was not true and was selective in using information which supported its findings.
The test to establish bias requires the applicant to show that the Tribunal had a state of mind so committed to a conclusion that was already formed, as to be incapable of alteration, or of being persuaded differently. The question is whether the mind of the decision maker is open to persuasion. In making this claim the applicant has relied solely on the Tribunal’s statement of reasons and on mere assertions that mistakes were made by his agent, and that the Tribunal was selective in its use of country information. No evidence is provided as to the first assertion [(a) above], and the second [(b) above] is not apparent on the face of the Tribunal’s decision record. He has brought nothing before the Court, for example, to link these particular complaints to the attitude or conduct of the Tribunal at the hearing, one method by which he could base an assertion of bias.
Further, the applicant specifically claims that the Tribunal’s bias is shown by the failure of the Tribunal to accept the applicant’s explanation for the discrepancy in the claims about his date of entry to Australia, and the date of certain events in China. The applicant relies on the following quote from the Tribunal’s decision record [CB 96.1]:
“When the Applicant makes a number of claims both in his protection visa application and at the hearing, he often referred to specific dates. However, these dates are often inconsistent and contradictory. For example, in his statement dated 29 March 2004, he refers to events that occurred in China on 12 March 2004 and
18 March 2004 and he claims that he arrived in Australia on 24 March 2004… and the Department’s movement records that he actually arrived in Australia on 24 February 2004.”The applicant appears to be selective in this matter because the Tribunal goes on to say [CB96.4]:
“… the Tribunal is again willing to give the Applicant the benefit of the doubt and accept that when he was referring to events in March 2004, he actually meant February of this year; the date of Jun Li’s release from detention was 15 August 2003 (not 2004); and that the applicant was simply confused at the hearing about the date of Jun Li’s arrest. (9 June 2003, not 23 September 2003)”
It is important to note, in any event, that the matter relating to the “different dates” generally was only one of a number of matters that gave rise to the Tribunal’s concerns about the applicant’s credibility.
In relation to the applicant’s complaint that the Tribunal was selective in its use of country information and did not use information which was favourable to the applicant and this also showed that the Tribunal was biased, again the applicant has put nothing before the Court, nor is it obvious on the material before me as to what the applicant is referring to here. The applicant was assisted by a migration agent before the Tribunal and was given the opportunity to provide any information in support of his claims. In particular, I note that in a letter dated 3 June 2004 to the applicant, the Tribunal at CB 68, said under the heading of “What does the Tribunal expect me to do?”:
“You should immediately send us any documents, information or other evidence you want the Tribunal to consider.”
Further, the Tribunal asked the applicant at the hearing before it if he had further matters to put to the Tribunal. At CB 92.9 the Tribunal asked:
“if he had any other claims or matters to put before the Tribunal, the applicant requested that he be allowed to remain as otherwise he will lose his life if he returns to China.”
In seeking to establish bias, that is, a closed mind on the part of the Tribunal, the applicant has brought nothing to this Court beyond mere assertion and this ground cannot be made out. Clearly, the applicant was given ample opportunity to provide any additional information in support. Nor has he identified now any material that he sought to put before the Tribunal which the Tribunal ignored or did not allow him to put in support of his claims. He has not shown how the Tribunal was selective nor that he did not have the opportunity to put forward any information in support of his claim.
The applicant also makes a specific claim now that the Tribunal ignored his claim that the police came to his home and told his family that he had to report to the police station the next day. He asserts that the Tribunal therefore made a mistake when at “page 17” (CB 99), it said:
“The Applicant does not provide the Tribunal with any indication that he has experienced or is likely to experience, any form of serious harm amounting to persecution for a Convention related reason on this basis if he were to return to China, now or in the foreseeable future, or provide any other reason to believe that he has a well founded fear of persecution for a Convention reason on this basis.”
The applicant claims that this was a mistake by the Tribunal to make this statement because he made clear claims that the police came to his home searching for him. This statement comes towards the end of the Tribunal’s reasons, and at this stage it is clear that the Tribunal has not believed the applicant’s claims. The Tribunal reached a conclusion about the applicant’s credibility, and it is clear, on a plain reading of its decision record, that the Tribunal did refer to this specific claim, that is of the police coming to the applicant’s home (see CB 91.2 and CB 91.4.) But it found at 98.6 that he was not a Falun Gong practitioner and did not accept this claim or others that flow from it. This claim of the visit by the police obviously flows from the claim to be a Falun Gong practitioner. The Tribunal’s findings, including findings on credibility, were all open to it on the material before it.
The applicant’s claims were all considered and were largely rejected. The Tribunal gives reasons for these findings which were open to it on the material before it. The failure of the applicant’s claims to satisfy the Tribunal does not amount to a failure of the Tribunal to consider what the applicant put before it. I can see no error in what the Tribunal has done, let alone jurisdictional error. For these reasons this application must be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of FM Nicholls FM
Associate: Tanya Koens
Date: 23 March 2005
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