SZGQM v Minister for Immigration
[2008] FMCA 68
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGQM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 68 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGQM”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A, 425 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 SBCC v Minister for Immigration & Citizenship [2006] FCAFC 129 |
| Applicant: | SZGQM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 94 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser (on a direct access basis) |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 11 January 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 94 of 2007
| SZGQM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant was born in 1963 in Shandong, the People’s Republic of China. He claims that he married in China in 1987 and that his wife and son currently reside there. He claims to have been a “worker” prior to coming to Australia and to have worked in a factory between 1980 and 2004. The applicant claims to have left China legally using his own passport.
The applicant stated on his Protection (Class XA) visa application that he practiced Falun Gong both publicly and privately since 1997 with the aim of improving his health. He alleges that the police forced him to attend re-educational courses, treated him poorly both physically and spiritually and forced him to confess that he intended to undermine the Chinese government whilst practicing illegal religious activities. The applicant claims that if he were to return to China, he would be punished severely by the government.
The applicant arrived in Australia on 20 June 2004 and applied for a protection visa on 19 July 2004. A delegate of the first respondent refused to grant the visa on 23 July 2004 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision on 17 November 2004 but this was set aside by the Federal Magistrates Court on 21 August 2006 and remitted to the Tribunal to be determined according to law.
On 27 November 2006, the second Tribunal affirmed the decision of the first Tribunal, which is the decision the subject of these proceedings (reference 06070194).
The application filed in this Court on 11 January 2007 contains three grounds of review:
1. The Tribunal rejected the applicant’s claims that he was a Falun Gong practitioner in China principally because he gave some inconsistent responses to questions concerning the process of applying for a protection visa. For example, the Tribunal rejected the applicant’s claims because he gave an inconsistent answer about whether he paid a migration agent $800 or $1,200 or whether a Mr Zhang or a Mr Lu assisted him with his original protection visa application. The applicant attended the Tribunal hearing to answer questions about his practice of Falun Gong, not to be grilled about how much he paid a migration agent or the name of a person who assisted him prepare an application two years earlier. These inconsistent answers by the applicant were of marginal relevance to the question whether his claims that he was a Falun Gong practitioner in China were true. In the circumstances, the Tribunal fell into jurisdictional error.
2. The applicant gave an inconsistent answer as to whether he paid a migration agent $800 or $1,200 two years earlier. The Tribunal rejected the applicant’s claims in part because of this inconsistent answer. The Tribunal’s finding on this point is harsh and together with its other findings gives no rise to jurisdictional error.
3. One reason the Tribunal rejected the applicant’s claims was because his statement contained in his protection visa application was almost identical to another applicant’s statement in a protection visa application. The Tribunal fell into jurisdictional error in the manner in which it dealt with this matter.
Consideration
At the first Court date held on 28 February 2007, I granted the applicant leave to file an amended application but he has not availed himself of this opportunity. Subsequent to the first Court date, the applicant retained Mr Zipser of counsel to appear for him on a direct access basis. Mr Zipser prepared written submissions which identifies two issues which he has labelled “Tribunal function” and “Identical statement”. In opening submissions, Mr Zipser clarified that issues raised in grounds one and two of the application are now the “Tribunal function” issue while ground three relates to the “Identical statement” issue. When asked whether ground two of the original application was now not pressed or overlapped with another issue, Mr Zipser indicated that the originally pleaded ground two was not a separate ground and in effect overlaps or merges with ground one. I will adopt the approach taken by Mr Zipser and deal with the newly identified issues. However, I will also take into account the written submissions prepared by Ms Sirtes in respect of ground two and deal with them as part of the first issue.
Tribunal function issue
The Tribunal rejected the applicant’s claims that he was a Falun Gong practitioner in China principally because he gave some inconsistent responses to questions concerning the process of applying for a protection visa. These inconsistent responses were of marginal relevance to the question whether his claim that he was a Falun Gong practitioner in China were true. In the circumstances, the Tribunal fell into jurisdictional error.
Mr Zipser in addressing the first issue referred to the Tribunal’s findings and reasons which states:
For reasons outlined below, the Tribunal is not satisfied the applicant has a well-founded fear of persecution. (CB 117.8)
The Tribunal followed this statement with four dot points. Mr Zipser argues that rather than asking the applicant questions to test whether he was a genuine Falun Gong practitioner, the Tribunal focused on the process of his making his application. Particular reference was made to a Mr Lu and a Mr Zhang and the amount that the applicant paid these two individuals to prepare his application. The Tribunal found that the inconsistencies in the evidence about their involvement led to a finding of the applicant’s untruthfulness about the validity of his claims.
Mr Zipser submits that focusing on the issues other than the applicant’s practice of Falun Gong was to not providing him with a proper hearing. Further that the Tribunal decision rejected the applicant’s claims principally because there were inconsistencies in relation to the procedure by which he lodged his claim.
Mr Zipser argues that the manner in which the Tribunal dealt with the applicant’s claim gave rise to jurisdictional error and that the error can be characterised in two ways.
a)The Tribunal failed to give the applicant a genuine opportunity in relation to a hearing under s.425 of the Migration Act 1958 (Cth) (“the Act”).
b)Under s.425, the function of the Tribunal is to test the applicant’s substantive claims but it instead focused on procedural inconsistencies in relation to how the applicant made his claim.
Mr Zipser contends that it is open to the Court to conclude that the Tribunal did not carry out its function.
Ms Sirtes contends that if the Tribunal decision is considered as a whole, it is clear that the majority of the hearing was not limited to the procedural issues identified by Mr Zipser but included detailed questioning of the applicant about his involvement with Falun Gong. Under the sub-heading “Hearing”, the Tribunal decision records questions about when the applicant started practicing Falun Gong, the circumstances allegedly surrounding his arrest for participation in Falun Gong-related gatherings and his practice of Falun Gong in Australia. The applicant’s Falun Gong activities in Australia was ultimately disregarded in accordance with s.91R(3) of the Act. The Tribunal did consider the applicant’s involvement in Falun Gong while in detention and when in the Australian community generally.
I agree with Ms Sirtes that it cannot be said that Falun Gong and the applicant’s involvement in Falun Gong related activities were not explored by the Tribunal. In the absence of a transcript or tape of the hearing, this Court is forced to rely upon the Tribunal decision as the only record of what occurred. However, the Tribunal decision clearly indicates that the applicant’s involvement in Falun Gong was considered at the Tribunal hearing and was not overshadowed by the consideration of procedural issues relating to the preparation of the original visa application.
The question that then arises is how far the Tribunal is required to go in exploring an applicant’s claims. It is accepted that the applicant came to the Tribunal hearing to show that he was a Falun Gong practitioner, but that does not oblige the Tribunal to assist him in demonstrating that claim. Ms Sirtes submits that the Tribunal is required to hold a hearing, invite the applicant and make sure that he is on notice about the matters in relation to the review. It is submitted that any other requirement is over and above the obligations of s.425 of the Act.
The terminology of s.425(1) requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments. However, the Tribunal is not required to make the applicant’s case for him. The entire onus of presentation in s.425 is upon the applicant. If the applicant wants to demonstrate to the Tribunal that he has detailed knowledge of either the philosophy behind Falun Gong, the teachings of Master Lee, the significance of Falun Gong or the performance of the five exercises, then that is a task for the applicant and not something which is imposed upon the Tribunal.
I agree with the submission by Ms Sirtes that is often the case in the Federal Magistrates Court and the Federal Court that the complaints made applicants are opposite to this applicant. That being that when applicants attend a hearing, the Tribunal insists on vigorously testing them on elements of their claim. When a Tribunal is faced with an applicant who claims to fear persecution for any reason, there is no mandatory list of questions that the Tribunal is required to ask for explanation of the claim.
Ms Sirtes submits that if the applicant’s complaint is that the Tribunal did not ask him to demonstrate certain exercises, then the allegation was not put in those terms but would be without merit even if it were. While there are a number of decisions in both the Federal Magistrates Court and the Federal Court of Australia which state that such a method of testing knowledge is valid, there is no authority which states that it is a mandatory task of the Tribunal. SBCC v Minister for Immigration & Citizenship [2006] FCAFC 129 at [47] found the following in relation to the suggestion that a Tribunal could not explore an applicant’s knowledge with him:
The short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim. That is what happened in this case.
Ms Sirtes submits that in SBCC, the Tribunal chose to explore the genuineness of the applicant’s claim to be a Falun Gong devotee by testing his knowledge. However, in other cases it might be that adverse credibility findings for reasons other than religious knowledge are sufficient to enable the Tribunal to make its finding. In this case, a variety of issues contributed to the Tribunal’s determination that the applicant was not a credible witness and not a genuine Falun Gong practitioner. There is no error as alleged and the Tribunal was entitled to conduct its enquiries as it did. I believe that the Tribunal in this matter was not satisfied in relation to the applicant’s claims because of his version of events in relation to what occurred in China and, more importantly, because it found him not to be a credible witness. On that basis, it found the rest of the evidence was impugned and made factual findings that were open to it.
Identical statement issue
One reason the Tribunal rejected the applicant’s claim was because his statement contained in his protection visa application was almost identical to another applicant’s statement in a protection visa application. The Tribunal fell into jurisdictional error in the manner in which it dealt with this matter.
The document in issue was attached to the applicant’s protection visa application (CB 26-27). The Tribunal had located on another file a statement in almost identical terms (CB 90-92). The Tribunal raised with the applicant that it had become aware of another application for review with a statement in almost identical terms to the applicant’s in his original visa application. Mr Zipser acknowledges that the Tribunal complied with the rules of procedural fairness by giving the applicant the opportunity to comment on this issue. The Tribunal considered this issue in the fourth dot point in its decision and then observed:
In consideration of the evidence as a whole, the Tribunal is of the view that the similarity in the documents reflect poorly on the applicant’s credibility.(CB 119.8)
Mr Zipser submits that one of the two identical statements preceded the other. If the statement found by the Tribunal was created or submitted earlier than that of the applicant’s and there is no good explanation by the applicant, then the Tribunal is entitled to draw an adverse conclusion. If the situation were reversed however, it would be inappropriate for the Tribunal to draw an adverse conclusion about the applicant. Mr Zipser therefore submits that the date of the statement located by the Tribunal is important in determining its significance. Further that if the Tribunal overlooked that piece of information, then it ignored relevant material which gives rise to jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Mr Zipser claims that there are two issues which need to be considered:
a)What is the relevance of information which the Tribunal is required to consider.
b)Whether the Tribunal dealt with that information or not.
In relation to the first issue, whether the statement is information the Tribunal is required to consider in the Peko-Wallsend sense, Mr Zipser contends that the Court is entitled to assume that the Tribunal knew or had in its possession the dates it was provided to the Department or Tribunal. If the Tribunal had the information, then that is an important issue required to be dealt with under s.424(1) of the Act:
Tribunal may seek additional information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Mr Zipser argues that this enlivens a statutory obligation.
Mr Zipser acknowledges that the mere fact that the Tribunal did not refer to the date the document was provided to the Department does not by itself mean that it failed to have regard to it.
Mr Zipser then referred to Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 per North, Madgwick and Kenny JJ, where the majority of the Court stated that if the Tribunal did not consider or set out something in its decision, it is open to the Court to conclude in certain circumstances that the Tribunal overlooked or failed to have regard to that issue. Mr Zipser argues that the above principle operates in the present case as the dates the applicant’s statement was created and submitted to the Department is a critical piece of information. The Tribunal has not referred to that information in its decision and it is open to the Court to infer that it overlooked the information. It is submitted that if that inference is drawn, then it follows that there is a jurisdictional error.
Ms Sirtes submits that there is nothing on the face of the present decision to say that the Tribunal did not consider the information and that its decision should be read subject to authorities such as Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, which states that the Tribunal is not required to refer to every piece of evidence. Ms Sirtes submits that the date is immaterial to the Tribunal’s reasoning because it did not matter whose application came first. It impugned the statement of each applicant equally especially considering the nature of the response the applicant gave to the Tribunal during the hearing and referred to in the fourth bullet point in its “Findings and Reasons” (CB 119).
The Tribunal records at that dot point that in response to the s.424A letter, the applicant said that he had explained to his migration agent in detail his practice of Falun Gong and signed documents presented to him in English. There is no suggestion that he asked for them to be translated to Mandarin. During the hearing, the applicant indicated that he could not explain and did not know why there were similarities between his statement and the other application. The applicant maintained that his experiences were true and that the Tribunal should demand an explanation from his agent, Mr Lu.
Ms Sirtes submits that the applicant’s evidence was that he had signed all documents put in front of him even though he did not know what he was signing in the hope that he would be granted a visa. The applicant did not tell the Tribunal at its hearing that he wanted to make any changes to those documents.
Ms Sirtes argues that it was immaterial which statement came first because the fact of the matter was that the credibility of both applicants was impugned. The applicants put before the Department and the Tribunal statements which did not accurately reflect their claims in circumstances where they did sign the documents. This applicant simply asked someone to write a statement sufficient for him to obtain a protection visa. By his own evidence, he signed the document without verifying its contents. The applicant’s evidence is that his experiences were true, not what was written in the documents. Ms Sirtes submits that this is in the Tribunal decision as recorded under the fourth dot point.
Ms Sirtes further submits that the information in respect of the dates of receipt of the two statements falls under s.424A(3), being non-disclosable information. The definition of “non-disclosable information” in s.5(c) includes information “whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence”. The Tribunal set out in its s.424A letter that it was unable to provide the applicant with details of that document because of confidentiality reasons.
I accept the submission made by Ms Sirtes that the information in respect of the dates on this document was not something that the Tribunal made specific reference to in its reasons and, in accordance with Applicant WAEE, the Tribunal was not required to refer to every piece of information before it. Accordingly, it is not open to the Court to infer that simply because there was no mention of that date in the fourth dot point, that the Tribunal overlooked or failed to consider the information.
Conclusion
I am satisfied that the grounds of review, either expressed in the original application or in Mr Zipser submissions, cannot be sustained. Consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter and order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 1 February 2008
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