SZFZO v Minister for Immigration - [2006] FMCA 1435

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFZO v MINISTER FOR IMMIGRATION

[2006] FMCA 1435

MIGRATION – Review of RRT decision − where applicant gave statement to the Department which was different in fact to evidence given at the Tribunal hearing − where Tribunal found the applicant not to be credible − where Tribunal considered claims made at the hearing to have been fabricated because those claims had not been made in statements prior to the hearing − whether the fact the applicant failed to make the claims earlier is ‘information’ under s.424A − whether the statements can be considered information which the applicant had given to the Tribunal thereby falling within the s.424A(3)(b) exception − whether the applicant could be considered to have a well-founded fear of persecution.

Migration Act 1958, s.424A

SZEEU v Minister for Immigration [2006] FCAFC 2
SZECF v Minister for Immigration [2005] FCA 1200
SZGDB v Minister for Immigration [2006] FCA 431
NAZY v Minister for Immigration [2005] FCA 744
SZGGT v Minister for Immigration [2006] FCA 435
VWBF v Minister for Immigration [2006] FCA 851
MZXGR v Minister for Immigration [2006] FCA 1167

Applicant:

SZFZO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG 791 of 2005

Judgment of:

Raphael FM

Hearing date:

14 September 2006

Date of Last Submission:

14 September 2006

Delivered at:

Sydney

Delivered on:

29 September 2006

REPRESENTATION

Counsel for the Applicant:	Mr B. Zipser
Counsel for the Respondent:	Mr T. Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 791 of 2005

SZFZO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 9 June 2004. On 15 June 2004 he lodged an application for a protection (Class XA) visa with the Department of Multicultural and Indigenous Affairs. On 27 July 2004 a delegate of the Minister refused to grant the protection visa and on 30 August 2004 the applicant applied for a review of that decision. The Tribunal held a hearing which the applicant attended on 8 December 2004 together with his adviser. After the hearing, on 22 December 2004, the applicant submitted a post-hearing submission found at [CB45]-[70].

On 3 February 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on

23 February 2005.
The applicant annexed to his application for a protection visa a statement that is found at Annexure C to the affidavit of Andrea Jane Nesbitt sworn on 11 September 2006. It is a two-page unsigned document which claims that the applicant commenced to practise Falun Dafa in December 1997 and spread it around. In February 2002 he went to Beijing to clarify the truth [about Falun Dafa] to the Central Government. In March 2002 the police from Tianjin city locked him up for ten days to prevent him from returning to Beijing. He was transferred to the Tianjin Detention Centre and illegally detained for one and a half years. He was beaten, and required to undergo other indignities explained in the third paragraph of the first page.

The applicant says he was released in September 2003 and realised that he would be put in gaol again if he stayed in China. He bribed a powerful government official to issue a passport and help him to apply for a visa to Australia.
There is found as part of Annexure A on page 7 of Ms Nesbitt’s affidavit another statement. This statement is shorter. It was the statement given to the Tribunal before the post-hearing statement to which I previously referred. The statement says in its second paragraph
“I started to practise Falun Dafa in December 1997 and cultivated in 1999. I always strictly disciplined myself and cultivated my xinxing (moral character; mind nature) according to the principles of Truthfulness, Compassion and Tolerance. In February 2002, I went to Beijing to clarify the truth to the central government, in order to safeguard Falun Dafa. In March that year the police from the Tianjin City locked me up again in the Tianjin police station for 10 days to prevent me from going to Beijing to appeal again. Then I was transferred to the Tianjin Detention Center and illegally detained me for one and a half years. The illegal torture made my body very weak. I was released in September 2003 and I realised that I would be put in gaol again if I still stay in China. I tried my best to come to Australia.” [sic]
The story which the applicant gave to the Tribunal concerning the reasons why he claimed to be a person to whom Australia owed protection obligations is somewhat different. He told the Tribunal that he had given an account of his persecution to his friend and his friend had just asked him to sign a form. The contents of the application were not read back to him. He said that his application contained some details that are not correct. He realised when he met his present advisor and she read the application that some of the details were not accurate and not full. The applicant advised the Tribunal that he was not in actual fact a Falun Gong practitioner, although his mother was one and he sympathised with her. His actual claims arose out of the fact that he was a journalist who had reported on the events before June 1989 in Tiananmen Square and was arrested on the 15th, after gaining access to a morgue secretly and passing on photos to important US and Japanese journalists. He was accused of leaking state secrets and remained in custody until November 1990. He was required to report to police each week until 1997, when he went to prison again for two months because he broke his bond by accompanying families of the dead to the State Council to petition about the classification of those who had died. He was badly treated during both of these incarcerations. The applicant told the Tribunal that he was unable to work as a journalist after 1997 and was reduced to driving and selling vegetables. In March 2002 the police came to his house to arrest his mother who was a Falun Gong practitioner. The applicant remonstrated and as a result was accused of being a risky person and was imprisoned from March 2002 until September 2003. At [CB133] the Tribunal states
“The Tribunal noted that those details were in his application for protection and queried why all the earlier things he’d told the Tribunal were not included in his application. [This can only be a reference to a statement in his application that the illegal torture had made his body very weak and that was why he was released in September 2003, because otherwise there is nothing in the earlier statements that compares with the claims which I have just rehearsed.] The applicant said that he thought the 4 June incident was too early to be included in his application although he thinks he mentioned it to those who prepared his application. The applicant said that his persecution relates to political reasons; he has interviewed many important people including top leaders and members of the army and government. He said that the authorities often came to his family/his son enquiring about his whereabouts to try to locate him.”
At the Tribunal hearing the applicant explained that he was not the person mentioned on his passport as his passport actually belonged to his twin brother, who had come to Australia a few days before the applicant and returned to China. At [CB130] the Tribunal states
“His brother came here to make preparations for him to come and to check whether everything was alright with customs and public security.”
In the Tribunal’s findings and reasons, which commence at [CB134], the Tribunal did not accept that the applicant left China in 2004 and fears to return there because of harassment and/or fear of harm from PRC authorities because of his political activities and sympathy with Falun Gong practitioners, and did not accept that his family members had suffered harm because of his political activities:
“The reason that the Tribunal finds against the applicant in relation to his claims is that it does not accept him as a witness of truth.” [CB 135]
The first matter that the Tribunal deals with in its reasons is the use of the brother’s passport. The Tribunal finds the evidence in relation to this implausible because of the applicant’s contradictory statement that the brother was not having trouble with the authorities, and yet his whole family was under surveillance, which suggested that even his brother would be unable to leave China safely. There was also the problem identified by the Tribunal of the description of the brother. First he was described as a twin and then as an elder brother. The applicant had confirmed to the Tribunal that the date of birth of the person on the passport was his date of birth. The Tribunal took the view that as that could not be the date of birth of an elder brother, the whole story lacked credibility. The Tribunal goes on to say at [CB 136]
“The fact that the Tribunal considers that the applicant was untruthful about some of his claims causes the Tribunal to reject other evidence he gives about his claims. Although the Tribunal accepts that the applicant was a journalist in China as was stated in his original application the Tribunal does not accept that the applicant took the photos of and reported on the significant events in China that he refers to and was persecuted in China for political reasons.”
The Tribunal goes on to refer to other evidence it doesn’t accept, until at [CB137] it states
“The claims made by the applicant about persecution due to his political activities/opinion have not been made by the applicant at a prior time and the Tribunal considers that they are recent invention.”
Finally, the Tribunal makes this statement
“The Tribunal has found that the applicant travelled to Australia in May 2004 and then returned to China before travelling to Australia again on 9 June 2004. In the Tribunal’s view if he had suffered persecution in China and feared further persecution there he would not have returned to China in early June 2004… Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution for the purposes of the Convention.”
Mr Zipser, who appears on behalf of the applicant, filed in court a further amended application in which the one claim made on behalf of the applicant was
“The Tribunal rejected a number of the applicant’s claims because the claims “have not been made by the applicant at a prior time and the Tribunal considers they are a recent invention” at (CB137.3). The fact that the applicant failed to make certain claims in his protection visa application was “information” within the meaning of s.424A(1) of the Migration Act. The Tribunal should have, but failed to, put the information to the applicant in the manner required by s.424A of the Act.”
The court accepts that a statement given by an applicant to the Department can be information within the meaning of s.424A(1); SZEEU v Minister for Immigration [2006] FCAFC 2. The Court is also cognisant of the fact that the decision of Allsop J in SZECF v Minister for Immigration [2005] FCA 1200 analyses in some detail what did or did not constitute “information” for the purposes of s.424A(1). His honour states at [30]:
“To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognise that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.”
The views expressed by Allsop J were considered and followed by Rares J in SZGDB v Minister for Immigration [2006] FCA 431. His Honour said at [28]
“Where the Tribunal seeks to use the way in which an applicant for review formulated his or her claim originally as part of the reason for rejecting the claim, whether by reason of omissions or not, I am of opinion that in the natural and ordinary meaning of the language of the section, the original application or grounds stated by the applicant for review cannot be other than a part of the reason for rejecting the claim when that rejection is expressed in the language used in the Tribunal’s reasons in the present case.”
These last words of his Honour are very important and they echo the views expressed by Allsop J at [25]:
“Minds might differ about questions such as these. This will be so because, after analysis of the expressed reasons of the Tribunal, one must assess or characterize the importance of the information itself to the reasoning process of the Tribunal apparently underlying its conclusion as to lack of satisfaction.
…
[26] I have extracted earlier the places in the Tribunal’s reasons where the prior statement is used. Having read the whole of the reasons of the Tribunal, it is clear that the comprehensive disbelief of the appellant and the finding that he had brought forward fraudulent documentation was largely, if not wholly, a product of the importance placed by the Tribunal on the form and content of his first statement. In short, the Tribunal found that if what he was saying were true, it would have been referred to earlier. The fact that it was not, demonstrated the falsity of his evidence to the Tribunal.”
In SZGDB at [11] Rares J also sets out several paragraphs in which the Tribunal specifically refers to the fact that certain information was not contained in the earlier statement. I suspect that his Honour was also influenced by the fact that the Tribunal had made an error in this finding because in fact certain matters had been so referred to. But that does not detract from the ratio that it is the use to which the Tribunal put this “information” that must be considered in order to decide whether or not it forms the reason or part of the reason for affirming the decision under review.
The wording used by this Tribunal about the difference between the statements is not indicative of a finding of a general lack of credibility which is what was found in the cases before Allsop and Rares JJ. It is a finding that relates solely to the later claims. The Tribunal had made up its mind about the credibility of the applicant based upon other matters set out in earlier paragraphs of the decision, the “recent invention” criticism of the stories could be said to be no more than a makeweight in relation to claims that had already been dismissed for other reasons. I appreciate that a decision of this nature must be finely balanced. It is certainly arguable that whilst the “information” was not the reason, it could have been part of the reason for affirming the decision under review. But I think that the applicant’s case fails for two other reasons.
The first reason is that the discrepancy must be between something that was not before the Tribunal and information given to the Tribunal itself. Information given to the delegate is not information given to the Tribunal (NAZY v Minister for Immigration [2005] FCA 744), unless the information is specifically incorporated into the application before the Tribunal: SZGGT v Minister for Immigration [2006] FCA 435, VWBF v Minister for Immigration [2006] FCA 851. It is not suggested that the two-page statement, Exhibit C, is incorporated in the application to the Tribunal, because a different statement, Exhibit A, was written specifically for the Tribunal. But a comparison between those statements indicates to me quite clearly that the gravamen of both, being the grounds upon which the applicant claims to have a well-founded fear of persecution, are almost identical. The first sentence of the second paragraph of Exhibit C is identical to the first sentence of the second paragraph of Exhibit A, as is the third sentence of those paragraphs. There is an identical description of travelling to Beijing and the occurrences there, found in the third paragraph of Exhibit C and the second paragraph of Exhibit A. As the Tribunal says at [CB129], after describing the evidence given to the delegate,
“In his application to this Tribunal for review the applicant makes no new claims.”
The discrepancy, which forms the “information”, is therefore a discrepancy between the information provided to the delegate that is repeated in the information provided to the Tribunal, and the later information given to the Tribunal at the oral hearing and by the post-hearing submission. Information that is given to the Tribunal by an applicant is exempt from the provisions of s.424A(1) by the exclusion found in s.424A(3)(b). There is thus no jurisdictional error.
The second matter is that I am of the view that there is in any event a separate and distinct reason, independent of the impugned part of the decision, for concluding that the applicant is not a person to whom Australia owes protection obligations. The separate and independent reason is the finding by the Tribunal that the fact that the applicant travelled to Australia in May 2004 and then returned to China before travelling to Australia again on 9 June 2004 itself evidences the lack of a well-founded fear. Whilst it is unsaid, I would interpret the Tribunal’s words to be referring to the subjective fear of persecution that is still required within the definition. In MZXGR v Minister for Immigration [2006] FCA 1167 the Chief Justice explained at [7]
“Although a failure to comply with s.424A involves jurisdictional error (SAAP v Minister for Immigration (2005) 215 ALR 162) it does not necessarily follow that a decision in respect of which there has been such a failure is invalid. The Federal Magistrate was correct to proceed on the footing that where there is an independent and unimpeachable basis for the Tribunal’s decision, uninfected by any jurisdictional error under s.424A, the decision must stand: VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [33] (North J); SZEEU v Minister for Immigration [2006] FCAFC 2 at [233] (Allsop J). These authorities were not challenged by counsel for the applicant.”
Although the applicant disputed that it was he who travelled to Australia, the Tribunal made a finding that it was him and not his brother, based upon its misgivings about his evidence as to the brother generally. In particular, the Tribunal concluded that as the brother was older than the applicant and as the date of birth on the passport was admitted by the applicant to be his date of birth, then the passport was his passport and it followed that it was he who travelled on it. This finding is in no way influenced by a finding that the information was a recent invention. It is a finding that proceeds on the basis that the claim was one that had to be fully considered. The dismissal of it comes some distance before the Tribunal’s reference to recent invention. It is to my mind totally independent of it.
In these circumstances I am unable to find that the decision is infected with jurisdictional error such that it is proper to grant the constitutional writs claimed. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: