SZGHP v Minister for Immigration - [2007] FMCA 1117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHP & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1117

MIGRATION – Review of Refugee Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.91R(3), 424A
Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v Rajalingam (1999) 93 FCR 220

First Applicant:

SZGHP

Second Applicant:

SZGHQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1118 of 2007

Judgment of:

Driver FM

Hearing date:

12 July 2007

Delivered at:

Sydney

Delivered on:

12 July 2007

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondents:

Mr Braham

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $5,000 pursuant to rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1118 of 2007

SZGHP

First Applicant

SZGHPQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal. (“the Tribunal”) The decision was signed on 23 February 2007 and handed down on 8 March 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants who are apparently a husband and a wife. They are from China and had made application for protection visas based upon their association with Falun Gong.
Background facts relating to the applicants' protection visa claims and the Tribunal decision on them are set out in written submissions prepared on behalf of the Minister and filed on 10 July 2007.

The applicants had not received those submissions prior to today's hearing but they were read to the first applicant by the interpreter before I came on the bench. I adopt as background, for the purposes of this judgment paragraphs 1 through to 9 of those written submissions.
The applicants are citizens of China who arrived in Australia on
2 October 2004 and applied for protection visas on 12 October 2004. That application was refused by a delegate of the Minister on
29 October 2004. The applicants applied to the Refugee Review Tribunal (“Tribunal”) for review of that decision on 25 November 2004. On 19 April 2005 the Tribunal affirmed the delegate’s decision.
On 11 October 2006 the Federal Magistrate’s Court remitted the matter to the Tribunal by consent.
A differently constituted Tribunal held hearings after the remitter from the Court on two days. On the first day, (19 December 2006) the husband applicant attended and gave evidence. On the second day (
24 January 2007) both applicants attended and gave evidence. The applicants were represented on both occasions by a registered migration agent, and were assisted by an interpreter. The Tribunal considered the oral evidence of the applicants before it, and the content of four statements made by the applicants and submitted to the Tribunal in support of their application. It also considered the material considered by the previous Tribunal, including the hearing tapes from two previous hearings (at which both applicants had given evidence, and had been assisted by an interpreter and represented by a migration agent), and the protection visa application file from the Department.
On 23 February 2007 the Tribunal re-affirmed the decision of the delegate. The decision was provided to the applicants by letter dated
8 March 2007.
On 4 April 2007 the applicants filed the present application in this Court for review of the Tribunal’s second decision, and an affidavit in support of the application.
The Tribunal decision
The Tribunal did not find the applicants to be credible witnesses. It found inconsistencies amongst the applicants’ evidence, the four statements submitted in support of their claims, and the evidence of the individual applicants before the previously constituted Tribunal. These inconsistencies were put to the applicants in two s.424A letters, and their relevance explained.
The Tribunal recited the various inconsistencies in detail at RD 438-446. In particular, the Tribunal relied upon inconsistencies relating to the following matters:
a)The events alleged to have occurred in Beijing in 2000. To the Department the applicants stated that they were arrested and sent home after attending a sitting petition. To the first Tribunal they stated that they were arrested and held for re-education and brain re-moulding for 7 days[1].
b)The events alleged to have occurred in Guangzhou in 2000. The applicants told the Department that they were arrested and detained for a week after a sitting petition in Guangzhou in 2000. Before the first Tribunal the first applicant said that he had not been arrested at this meeting. The second applicant’s evidence did not reflect this incident at all[2].
c)The search of the applicants’ home. The first applicant claimed to the second Tribunal that their home was searched in November 2000, and he was detained for a week. To the Department they claimed to have both been ‘captured’ and held for a week in 2002 after a search of their home. To the previous Tribunal the second applicant claimed that there was no incident after Beijing in 2000[3].
d)The applicants claimed to the Department that they were detained for a week in 2002, and released when a fine was paid. Before the previous Tribunal the first applicant claimed that they received serious physical torture during their detention. Before the first Tribunal the second applicant made no mention of detention in 2002, but claimed that they were detained for a week in 2004. In statements to the Department and to the previous Tribunal the applicants had claimed to have been detained for 6 months, being released in May 2004[4].
On the basis of these inconsistencies, the Tribunal found the applicants to be untruthful, and rejected their accounts of involvement with Falun Gong in China, and of persecution in China.
The Tribunal found that the applicants had engaged in Falun Gong practice in Australia for the purpose of furthering their claims for protection. It therefore disregarded those matters pursuant to s.91R of the Migration Act 1958.
[1]     RD 446-7.
[2]     RD 447.1
[3]     RD 447.3
[4]     RD 447.5
The applicants rely upon their show cause application filed on 4 April 2007. They assert actual notification of the Tribunal decision on 10 March 2007. I find that the application was filed within time. On 26 April 2007 I gave directions in relation to the application.

I dispensed with the need for a preliminary hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and gave the applicants the opportunity to file additional material.
The applicants had filed an affidavit with their original application in which the applicant husband asserted that he is a genuine Falun Gong practitioner. I received that affidavit as a submission. The first applicant filed a further affidavit on 1 June 2007. In that affidavit he again asserts a genuine commitment to Falun Gong and attacks an adverse credibility finding made by the Tribunal. He asserts that he will be at serious risk of persecution if he returns to China. I received that affidavit as a submission.
The applicants filed further written submissions on 10 July 2007. In those written submissions the applicants repeat the assertions in the show-cause application. The applicants assert that the Tribunal erred in making an adverse credibility finding against them based upon inconsistencies in their evidence. They assert that the Tribunal failed to take into account a statement made by the first applicant on

20 February 2007 explaining the inconsistencies. They also assert that the Tribunal erred in failing to consider what the position would be if it had been wrong in its adverse credibility finding.
The applicants also assert error in the Tribunal finding that it must disregard the applicants' conduct in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”). The applicants assert that that finding was affected by prejudice.
The evidence that I have before me is limited to the book of relevant documents filed on behalf of the Minister on 4 May 2007.
I explained to the first applicant during oral argument that I had difficulty accepting the assertions of error. It is plain on the face of the record of the Tribunal decision that the Tribunal was not only aware of, but took into account, the applicants' response to invitations for comment sent pursuant to s.424A of the Migration Act. It is also apparent on the face of the record of the Tribunal decision that the Tribunal was in no doubt in making its adverse credibility finding.
Further, there is no evidence of bias on the part of the Tribunal, either actual or apprehended. The Tribunal was required to disregard the applicants' conduct in Australia pursuant to s.91R(3) of the Migration Act because the applicants were unable to satisfy the Tribunal that that conduct was engaged in for a reason other than enhancing their protection visa claims.
These matters were dealt with by the Minister in his written submissions. I agree with, and adopt for the purposes of this judgment with any necessary amendments, paragraphs 10 through to 14 of those written submissions.
The application contains two grounds for review. The first is that the Tribunal failed to take into account the applicants’ response dated 20 February 2007 to the second s. 424A letter explaining the inconsistencies identified by the Tribunal. There is no basis to that contention. The response (described as the “fifth statement” in the Tribunal reasons – see RD 438.3) is considered at various points in the Tribunal’s recitation of the evidence proffered by the applicants[5]. Consideration of the contentions made in the fifth statement is to be found at RD 447.7.
In substance this ground of review appears to be a request for merits review of the Tribunal decision.
The effect of the decision in Minister v Rajalingam (1999) 93 FCR 220 has also been raised under the rubric of this ground. The relevant passage of that decision is at [55]–[56] in which Sackville J states:
It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event had not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution …
If, on the other hand, it appears that the RRT had no “real doubt” that its findings were correct, it is not bound to consider whether those findings might be wrong. [original emphasis]
Nothing in the Tribunal’s reasons suggests that the condition expressed by Sackville J for the requirement that the Tribunal consider the alternative position exists. That is, the Tribunal appears to have had no real doubt that the applicants’ evidence was not to be accepted.
The second ground of review alleges that the Tribunal was affected by bias in its application of s. 91R(3) of the Act. That ground has not been particularised, and no evidence of actual bias has been served. No apparent bias is demonstrated by the Tribunal decision or file.
[5] RD 438-446.
I explored with Mr Braham for the Minister in oral argument whether there was any issue in relation to the manner in which the Tribunal arrived at its adverse credibility finding.
The Tribunal disbelieved the applicants because of perceived inconsistencies in their evidence. The Tribunal was concerned about inconsistencies between the evidence of the first and second applicants as well as inconsistencies within their own evidence. This was a procedurally complex matter. The first Tribunal decision had been set aside by order of this Court. There were four Tribunal hearings and two invitations to comment pursuant to s.424A. The process of review covered a long period.
In such circumstances it would have been difficult, both for the Tribunal and the applicants, to address all of the factual issues. Over time, due to the vagaries of memory, some facts may be forgotten and others remembered. For this reason the courts have cautioned decision makers not to make adverse credibility findings based upon inconsistencies in relation to matters of peripheral detail.
The inconsistencies in the evidence of concern to this Tribunal however went beyond matters of peripheral detail. The inconsistencies were numerous and went to the heart of the applicants’ claims. I find no legal error in the Tribunal's approach.
The applicants have failed to establish any jurisdictional error in the decision of the Tribunal. Neither is any jurisdictional error apparent to me from my own reading of the material. I find that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed costs should follow the event. The Minister seeks costs on a party/party basis in the sum of $5000 that is also the amount prescribed under the Court's scale. The first applicant enquiried whether costs could be reduced, I explained to him that I did see any reason to depart from the Court's scale in this matter. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $5,000 pursuant to rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 16 July 2007