SZFJO v Minister for Immigration - [2005] FMCA 1964

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1964

MIGRATION – RRT decision – Chinese applicant claiming persecution due to Falun Gong activism – disbelieved by Tribunal – whether medically incapacitated at Tribunal hearing – no jurisdictional error found.

Migration Act 1958 (Cth), ss. 422B(1), 424A(1)(3)(a), 425, 425(1), 424A(1), 425A(3), 474, 483A, Part 8
Acts Interpretation Act 1901 (Cth) s.8
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200
SZFIH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1847
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZFJO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 8 of 2005

Judgment of:

Smith FM

Hearing date:

15 December 2005

Delivered at:

Sydney

Delivered on:

15 December 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S A Mason

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
These orders shall not take effect until 31 January 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 8 of 2005

SZFJO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 4 January 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated

23 November 2004 and handed down on 9 December 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuation of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's claims to be a refugee should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia on a one month temporary business visa in June 2004. On 13 July 2004 he applied for a protection visa assisted by a migration agent called Mr Shiu Lun Peter Wong. Attached to the application was a short statement explaining why the protection of Australia was sought under the Refugee Convention against the applicant's return to his country of nationality, the People's Republic of China.
The statement said:
I am (name), I was persecuted because of political reason and could not survive in China, so I applied for refugee status. I was originally a driver in a factory. I was fired and became unemployed because my mother is a Falun Gong practitioner.

I had to accompany my mother to report to the local police station once every week. I could not find another job. No one dared to employ me because my mother practices Falun Gong. They were afraid to have anything related to us. Our friends and relatives were afraid to contact us. I have no income and could not survive. My parents are old and unemployed too. My mother was sick and weak. My father could not get up from bed. I could not look after them because I had no income. I was very sad because I could not do anything to help them. I have no alternative but to come to Australia. Others told me that Australia is ruled by law and a country that protect human right. I honestly ask the Australia government to give me an opportunity to me, a helpless person, so that I could live in Australia. If Australia government approves my application, I would contribute the rest of my life for Australia.
A delegate refused the application on 29 July 2004, and the applicant applied for review by the Refugee Review Tribunal with the assistance of a new migration advisor, Mr Harry Huang at Priscilla International Co Pty Limited.
Attached to the application for review was a more extensive statement as to the applicant's claimed history. It elaborated his mother's involvement in Falun Gong, and made additional claims that the applicant had been required to promise to monitor his mother's behaviour and that when he and his mother reported to the police station they were subjected to mistreatment, insult and sufferings. Notably, he claimed that in March 2003 he and his mother had been detained and questioned and physically mistreated, as had his father who had later attended the police station. He also made a new claim that:
During the period from March 2003 to May 2004, I contacted those Falun Gong practitioners, and particularly their relatives or families or friends, to widely distribute propaganda materials, protest against Chinese Government persecuting Falun Gong practitioners which has produced stronger and stronger influences.
He claimed that he decided to leave the country when a friend became subject to investigation in May 2004. He claimed that his friend was subsequently arrested, so that “consequently I had become the target of the PRC authorities and all my activities have been discovered by the PSB”.
No supporting or corroborative material was provided at that or any time to the delegate or Tribunal.
The applicant was invited to attend a hearing of the Tribunal on

17 November 2004 at 9.30 am, and he attended. The Tribunal in its statement of reasons records:
The applicant had attended the Tribunal on that day but was unwell, so the hearing was rescheduled to 19 November 2004.
I shall refer below to the applicant's evidence about this illness which was given today.
The Court Book contains a letter dated 17 November 2004 addressed to the applicant but with the postal address of the applicant’s agent, which said:
Due to your illness at the Tribunal this morning, we will not be able to have a hearing today.
Your new hearing is:
Date: Friday 19 November 2004
Time: 11:00 AM Please arrive at least 15 minutes before the start of the hearing
Place: Level 29, Pacific Power Building, 201 Elizabeth Street, Sydney
Important information about your hearing
·If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
·If you have a passport you should bring it to the hearing.
Please immediately telephone Terry Smith on (02) 9278 8549 if you are medically unwell and unable to attend the hearing on that date. You are reminded you must immediately submit a medical certificate if you fail to attend your hearing.
If you have any questions, and you don’t speak English, please contact the Translating and Interpreting Service (TIS) on 131 450.
It is unclear to me whether this letter was physically delivered to the applicant while he was attending at the Tribunal, or whether it was only posted to his agent. His account to me was that he was vomiting on that occasion, and that his illness was apparent to the Tribunal officers who assisted him and advised him to seek treatment. I am prepared to accept that evidence.
There is currently some differences of opinion at to whether the Tribunal is obliged when rescheduling a hearing to give a new notice of a hearing allowing the full prescribed period under s.425A(3), which is a minimum of 23 days if notice is served by post. I have recently discussed these authorities in SZFIH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1847. My opinion is that such a period of notice is not required where the rescheduling is at the request or with the consent or acquiescence of an applicant. In the present case, I am not satisfied that this adjournment was not of such a character, and therefore am not persuaded that the Tribunal's subsequent decision was vitiated by jurisdictional error by reason of the period of the adjournment provided in the letter of 17 November 2004.
The applicant did attend on the adjourned hearing date, and there is nothing in the Court Book to indicate that he was medically incapable of participating adequately in the Tribunal's proceeding. The Tribunal gives a description of extensive questioning, which according to its hearing information record lasted from 11.05 am until 12.15 pm, the applicant having arrived at 10.42. Its account suggests that the applicant was able to respond fully and articulately. There is no record of him seeking an adjournment, referring to any indisposition, or being unable to answer questions sufficiently. Indeed, the Tribunal gives the opinion:
At the hearing, it is the Tribunal's view the applicant presented as articulate and apparently astute.
On the Tribunal’s account of the hearing, it questioned him closely about the claims he had made in his two written statements, and it recorded him making additional claims and giving more details. For example, when it questioned the applicant about his claim to have been giving out Falun Gong pamphlets in the main street of his city for four or five months, the applicant elaborated several accounts of this, including that he had been questioned and mistreated by local security personnel in the course of that activity, and had been detained and warned in May 2003.
The impression I gain from the Tribunal's description of the hearing is that the applicant attempted to patch over significant difficulties in claims which he had presented in writing. Indeed, this was the conclusion reached by the Tribunal when it came to assess his claims. However, this does not suggest the existence of a medical incapacity to participate in the hearing.
The Tribunal under the heading "Findings and Reasons" made a careful examination of each element in his claims, considering how they were presented and how they changed in the course of the applicant's evidence at the hearing. It referred to the absence of detail in the original statement accompanying the visa application, and assessed the applicant's explanation for the lack of detail. The circumstances of the elaboration of the applicant's claims became one element in the Tribunal's reasoning leading to a general rejection of most of his claims. It also influenced the Tribunal’s opinion of the applicant's credibility generally.
His general credibility, then provided the essential reason for the Tribunal’s decision. Its conclusion was:
To the extent they have not otherwise been expressly discounted, given I am sufficiently satisfied the applicant is not a witness of truth, I am satisfied I should impugn all the applicant’s material claims. Therefore, I do not accept that the applicant has more than a remote chance of being subject to harm amounting to persecution for the purposes of the Refugee's Convention for the reasons he has claimed, should he return to the PRC.
Its essential reasoning leading to its rejection of his credibility can be found in the following earlier paragraph:
Accordingly, the Tribunal is not satisfied the applicant is a witness of truth. The Tribunal does not accept the reason the applicant’s written application to the Department was inconsistent [at least by way of being less elaborate] with both his written claims to the Tribunal and to his oral claims at the Tribunal hearing, was due to his first migration adviser stating he would ‘take care of everything’. Secondly, the Tribunal does not accept the reason the applicant’s written applicant to the Tribunal was inconsistent [again, at least by being less elaborate] to his oral evidence at the Tribunal hearing was due to him having prepared his written application to the Tribunal when his was ‘in a hurry’. Thirdly, the Tribunal finds it implausible and does not accept the applicant was in any way involved with the distribution of Falun Gong pamphlets in the PRC in mid 2003. Fourthly, the Tribunal is not satisfied the applicant would not have at least taken steps to protect himself if he was in fact warned to do so by a ‘friend in the PSB’ in May 2003 [due to the applicant being ‘watched’/investigated’ by the PSB at that time], but would have decided to ‘flee’ the PRC merely for reasons of a friend being investigated from May 2004. Fifthly, the Tribunal finds it implausible and does not accept the applicant was detained and or warned in May 2003 for the reasons he claimed, nor that a friend of the applicant’s was investigated from May 2004, for the reasons he claimed.
I have considered whether the Tribunal's references to the applicant's original statement accompanying his visa application reveals a use of information from that document adversely to the applicant in a manner requiring the service of a notice under s.424A(1) inviting the written comments of the applicant. However, in my opinion it did not. consider that the situation can be distinguished from that found by Allsop J in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200. The Tribunal did not use an omission from the original statement as information in itself forming part of its reasons for affirming the delegate's decision. Rather, its adverse credibility assessment was based upon its assessment of the applicant’s later elaboration of his claims and his explanations for this which were given at the hearing. I consider its reference to the contents of the original visa application information comes within the third proposition in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)]. Therefore, no breach of the duty under s.424A(1) occurred.
Considering the Tribunal's overall reasoning, I have been unable to identify in it a ground of jurisdictional error vitiating its decision.
The applicant's application and amended application in this Court have essentially raised two grounds. The first was not identified in his original application, but is made in his amended application:
Although the Tribunal indeed invite me to appear before the Tribunal, but the Tribunal failed to allow me to give evidence and present arguments relating the issues arising in relation to the decision under review.
Firstly, I have informed the Tribunal that I was in poor health, and I was not in the situation, at that time, to give evidences and present arguments;
Secondly, owing to my poor health situation at the hearing, I was unable to well understand the Tribunal and the interpreter.
In conclusion, the Tribunal failed to arrange a fair hearing for me; and I therefore did not think that the Tribunal has complied with its obligations under section 425 of the Act.
Although no authorities have been cited by the applicant, this complaint appears to invoke cases which have held that the opportunity to be provided on an invitation under s.425(1) is to be “real and meaningful” and not to be “a hollow shell or an empty gesture” (see NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]).
The difficulty faced by the applicant in persuading me to accept this ground is an evidentiary one. The applicant did not file any affidavits giving the factual circumstances relevant to his complaint, although at the first Court date on 19 January 2005 he signed directions providing for his evidence to be filed on affidavit, including evidence of a transcript of hearing. He had no evidence as to what happened at the adjourned hearing to present to me, and had no medical evidence directly establishing any medical unfitness to participate in the adjourned hearing.
The applicant did tender three documents from a Chinese acupuncture clinic. I accept that these establish an attendance by him on

17 November 2004, the day of the first hearing. A receipt establishes that he received Chinese medicine and acupuncture treatment and a consultation. As to the nature of his complaint, a certificate signed by the acupuncturist given on that date records only “attended treatment for Flu. Headache”. The certificate certifies that the applicant “is unable to attend work” “from 17/11/04 to 22/11/04 inclusive”. The applicant told me that he was given this certificate to give to his employer, but that his employer did not require it, so that he kept it.
The third document is a receipt acknowledging payment of $125 for five further acupuncture treatments from the same clinic on each of the subsequent five days, including the day of the adjourned hearing, 19 November. They do not reveal him requiring any further consultation or medicine, and can provide little useful evidence of the state of his health on 19 November 2004.
The applicant's evidence under oath today as to his condition when he attended the adjourned Tribunal hearing was that, although he was not fully recovered, "at first" he thought "I can handle it", but later on he felt worse. He now believes that he said things without thinking. He did not describe symptoms on the day of the adjourned hearing, other than feeling confused. He said his symptoms on the first day of the hearing were vomiting, feeling confused and feelings of weakness in his whole body.
On this evidence, I am ready to accept that the applicant was suffering an episode of what is commonly thought to be "Flu", but it is impossible for me to form any opinion as to its severity, and in particular as to the extent to which it would have prevented the applicant from participating adequately in his adjourned hearing. There is certainly no evidence that he told the Tribunal anything to suggest he was suffering from incapacity, apart from the applicant's own claim to me that at one stage he was asked how he felt and he said he wasn't feeling well. He said: "They asked if I can stay to the end, and I said I can". He does not claim that he ever felt so unwell as to ask for a further adjournment.
In the absence of medical evidence of relevant incapacity, and in the absence of a transcript of the hearing allowing me to assess how well the applicant responded to questions, I find it impossible to form a conclusion which will allow me to uphold this ground of appeal. I am left with what I regard as the best evidence of the applicant's ability to participate in the adjourned hearing, which is the Tribunal's own account of the hearing and its opinion which it formed on the day that “he presented as articulate and apparently astute”. On that account, the applicant was not suffering from any material impairment.
I therefore do not accept that there was a failure by the Tribunal to afford the hearing required by s.425 of the Migration Act.
The second ground which was raised by the application and the amended application, and is elaborated in both of those with references to sections of the Migration Act, is essentially that the Tribunal failed to observe a duty to give to the applicant copies of the country information which it refers to in its reasons, and which has been reproduced at the end of the green book.

I accept that this material was not given to the applicant, and that it was not the subject of any written notice or invitation under s.424 or 424A of the Migration Act. The effect of the information was canvassed with the applicant in the course of the hearing, when the Tribunal put its concerns that his claim to have been publicly handing out pamphlets was inconsistent with the country information. That concern was maintained, as I have indicated above, as an element in the Tribunal's rejection of his claims as implausible.
However, in my view a short answer to the contended ground is that under the provisions of the Migration Act applicable to the Tribunal's review in this matter, it was not required to give copies of the information to the applicant nor give him a written invitation for comments, since the information was not specifically about the applicant. It was therefore covered by s.424A(1)(3)(a) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572).
The applicant has appeared before me today and, as did the Tribunal, I found him articulate and astute, and he has argued fully the two grounds which I have addressed above.
For the above reasons, and in the absence of any other ground of jurisdictional error appearing to me on my own reading of the papers, I have concluded that the Tribunal's decision is not affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred and I must dismiss the application.
Taking into account the Christmas period, I shall set a date of effect for this decision which will allow the applicant to take advice on it, after it is revised and posted to him before his bridging visa might expire.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 12 January 2006