SZGXQ v Minister for Immigration
[2005] FMCA 1593
•31 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXQ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1593 |
| MIGRATION – Refugee – credibility – inconsistent evidence. |
| Migration Act 1958, ss.424A(1), 424A(2), 424A(3)(b) |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 423 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998 VAF v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | SZGXQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2114 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 October 2005 |
| Date of Last Submission: | 25 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. G. Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2114 of 2005
| SZGXQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 9 August 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 August 2005 and notified by letter sent to the applicant dated that day, to affirm the decision of a delegate of the respondent Minister made on 2 June 2005 to refuse a protection visa to the applicant. I note the Tribunal was joined as the second respondent in these proceedings at the first Court date in this matter.
The applicant is a national of the People's Republic of China who arrived in Australia on 5 April 2003 and lodged an application for a protection visa with the first respondent’s Department on 19 May 2005. The applicant’s claims are based essentially on his claimed Falun Gong adherence and that he had experienced persecution at the hands of the Chinese authorities. He also claimed that he had continued practicing Falun Gong in Australia and that if he returned to China he would be put in gaol. The applicant's claims are set out in his application for a protection visa made to the first respondent's Department (Court Book (“CB”) 1 to CB 26) and in particular in an attached statement reproduced at CB 27 to CB 32. The applicant's application to the Tribunal is at CB 46 to CB 49. The applicant gave oral evidence to the Tribunal on 1 August 2005. The Tribunal’s account of what occurred at the hearing is set out in its decision record reproduced at CB 63.3 to CB 65.5.
The Tribunal's “Findings and Reasons” are set out at CB 65.5 to CB 68.2. The Tribunal found:
1)That independent country information supports the applicant's claims about persecution of Falun Gong practitioners by PRC authorities (CB 65.9).
2)That it did not accept that the applicant was, or is, a Falun Gong practitioner and was involved in Falun Gong activities in China. Nor did the Tribunal accept the claims of detention and ill-treatment that the applicant put forward. Further it did not accept that he was being sought by Chinese authorities and was in hiding from those authorities before he left China. It did not accept that that the applicant could not return to China because he feared persecution (CB 66.8). The reasons that the Tribunal stated that it could not be satisfied about these matters was:
a)It did not accept that the applicant was a witness of truth.
b)It found the applicant gave inconsistent evidence before the Tribunal.
c)It did not accept the applicant's explanations for these inconsistencies as being plausible.
d)It did not accept that the applicant would have given different evidence if it had asked him initially when he had left his place of employment as he had suggested.
e)It found that the applicant delayed claiming protection in Australia over two years after his arrival and only claimed protection after he was placed in detention by the first respondent’s Department because he was in the country illegally.
f)It found that he did not tell anyone about his claimed persecution in China until he made his application for protection.
g)It found that if the applicant's claims were genuine they would have been made earlier.
h)It found that his claims were invented by the applicant to assist him in his application for protection.
i)While the Tribunal accepted that the applicant knew the Falun Gong exercises, it did not accept, because of the other evidence before it, that he was a genuine practitioner in Australia or in China.
The applicant's application to this Court contains one particularised ground for review. The claim is:
“1. The decision involved an error of law in that;
(a)procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed.
(b)the decision was an improper exercise of the power conferred by the Migration Act and Regulations.
(c)the decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.
(d)there is no evidence or the other material to justify the making of the decision.”
The applicant was unrepresented before me. He was assisted by an interpreter in the Mandarin language. Mr. Kennett appeared for the respondents. At the hearing before me the applicant stated he was refused a visa and has appealed for this reason. He indicated that he claimed before the Tribunal that he was persecuted as a Falun Gong practitioner in China that he was not treated “fairly” before the Tribunal. He then explained this by stating that the Tribunal did not believe him. When I pressed the applicant if there was anything further that he could say in support of his claims, after having explained to him the difference between roles of the Tribunal and the Court, the applicant claimed that he did not know what was in his application, both to the Court and the application for a protection visa and that he had been assisted by a friend in preparing these documents, but insisted that he had told “all true facts”.
The application to this Court pleads error of law and failure to follow required procedures. There is nothing in the application, nor was the applicant able to assist further, to identify the actual errors in the Tribunal's decision.
Nor can I see anything in the material before me that would assist the applicant’s broad assertions. The Tribunal looked at the applicant’s claims as put forward and rejected his claims on credibility grounds. A finding on credibility is of course part of the “function of the decision maker par excellance” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 423 [67]). Mr. Kennett for the respondents has however raised one potential issue presented by the application and that is whether the Tribunal complied with its obligations under s.424A of the Migration Act 1958 (“the Act”), in light of the lines of authority considered in decisions such as NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 (“NAZY”). Mr. Kennett's submission was that NAZY and other decisions of the Federal Court hold, following the majority in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”) that the claims made by a protection visa applicant in his or her primary visa application do not come within s.424A(3)(b), which of course provides the exemption from the requirement to put to applicants adverse information pursuant to s.424A(1), which as a result of the recent decision of the majority of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) must be put to the applicant in writing pursuant to s.424A(2). Mr. Kennett also referred me to SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998 (“SZBNK”) and in particular Lindgren J’s analysis beginning at [17] to [27].
The Tribunal decision in the case before me turned on the adverse view that the Tribunal took of the applicant's claims. At CB 67.1 the Tribunal did not accept that the applicant was a witness of truth. In part this was based on the inconsistencies in the applicant's evidence. The inconsistencies recorded by the Tribunal were that initially the applicant gave evidence that he was living at his family home where he had lived all his life, and working at his job where he had worked for over 10 years until just before he came to Australia. The Tribunal then records that later he told the Tribunal that he was in hiding from authorities because they came to arrest him and others in February 2003. The Tribunal records that when it queried how he was able to live at the family home and continue to work in his job until just before he left China to come to Australia, if he was in hiding, he answered that he was living with relatives in the same area and that he had left work in September 2001, because of his arthritis, although he still held the position. The Tribunal did not accept these explanations as plausible. Information about the applicant's work and address in China is contained in the protection visa application, but it is quite plain that what the Tribunal relied upon was the “inconsistent evidence at the Tribunal” (CB 67.2). It was the inconsistency between the relevant evidence given at the beginning of the hearing with the Tribunal, and with what he later told the Tribunal, that it relied on. Further, I note that in SZBNK Lindgren J. was faced with a situation where:
“[26] The relevant passage in the Tribunal's reasons in the present case reads:
‘At the RRT hearing, the Applicant assured the Tribunal that everything he said in connection with his primary application was “correct, true and complete”, stating that his adviser provided a translation into Bengali of all the material that was forwarded to the Department in English.’”
His Honour then went on to say that he did not infer on, as he described it, “this slender basis”, that the present applicant in his case “put forward in chief” the information questioned in his application before the Tribunal as distinct from responding to a question asked by the Tribunal member. It is clear however, that in the case before me this was not a situation where the Tribunal made some blanket request of the applicant seeking some comment that everything that he had said in connection with his primary application was true and correct. The Tribunal's decision record supported by the transcript of the hearing before the Tribunal (Annexure “BM1” of the affidavit of Bonnie Mendelsohn). Mr. Kennett referred me to the inconsistencies found by the Tribunal in the evidence given by the applicant at the hearing before it that related to his address and where he worked, as a against his claims that he was in hiding. At Transcript page (“T”) 8.5 as compared with T13.1 and as follows. In relation to the arrival in Australia (T3.7) when he made his application and was taken into detention (T6.1 to T8.6) and in relation to the adverse view the Tribunal took arising from when the application was made for a protection visa and it's circumstances at T7.5. I take the view therefore that this is information provided to the Tribunal for the purposes of the application to the Tribunal, and that what the Tribunal noted was the inconsistency between two sets of evidence that the applicant gave at the hearing before it. Such information does come within the exemption set out in s.424A(3)(b) and is therefore not required to be put to the applicant in the manner set out in s.424A(2) as explained by the High Court in SAAP. Further, the conclusion that the Tribunal drew, that the two sets of evidence given by the applicant were inconsistent and that this inconsistency led it to form the view that the applicant was not a witness of truth, is not information for the purposes of s.424A. In this regard see VAF v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 123 at [29] to [33], where their Honours Finn and Stone JJ addressed the issue of “the reason or part of the reason” in relation to s. 424A(1) of the Act.
In coming to its conclusion about the applicant's credibility the Tribunal also partially relied on the finding that the applicant delayed claiming protection in Australia for over two years after his arrival, and then claimed protection only after he was placed in detention by the respondent Minister's Department. It further found that he did not tell anyone about his claimed persecution in China until he made his application for protection. The Tribunal formed the view that if the applicant's claims were genuine they would have been made earlier especially as the applicant claimed to the Tribunal that he had come to Australia because he knew it was a country that respected human rights. It is clear that again the Tribunal relied on what occurred at the hearing before it (CB 63.6) and in particular, and relevantly, that the applicant stated to the Tribunal that his application for a protection visa was prepared while he was in detention with the help of a friend, that he had been detained in April 2005, and made his application for protection in May 2005. He had earlier stated that he had first come to Australia in April 2003. Mr. Kennett's submission was that quite apart from the reasoning in Al Shamry that objective facts about the circumstances of the visa application are not in themselves information given by the visa applicant within the meaning of s.424A(3)(b), in relation to these relevant application details having been given on the face of the application for protection visa. However, it is quite clear that in this instance, as in the instance set out above, this is information that has been given to the Tribunal by the visa applicant at the hearing the Tribunal conducted with the applicant. Clearly, this is not a situation where an applicant has stated information in the application for the protection visa and it can be said that subsequently this was adopted for the purposes of the application to the Tribunal. The Tribunal's record of the hearing that it conducted with the applicant, which remains unchallenged by any other evidence put before me, clearly shows that these matters were discussed at the hearing with the Tribunal. In this regard I note also the affidavit of Bonnie Mendelsohn, a solicitor in the employ of the respondent’s solicitors, affirmed on 26 October 2005. Annexure “BM1” is a Transcript of the hearing the Tribunal conducted with the applicant. The Tribunal’s account is consistent with what appears in the Transcript in relevant particulars. The circumstances surrounding how the applicant came to make his application for a protection visa were clearly put, in some aspects for the first time, (for example that the application had been prepared with the help of a friend) before the Tribunal at the hearing. Again, similar to the instance above, the adverse conclusion drawn by the Tribunal from what the applicant said to it at the hearing is not information for the purposes of s.424A of the Act. I cannot see any failure to comply with s.424A, as clearly the information on which the Tribunal relied was given to it by the applicant at the hearing that the Tribunal conducted with the applicant for the purposes of the application. The Tribunal's thought processes and adverse views arising from this information are in turn not information for the purposes of s.424A.
The applicant clearly set out his claims to be a Falun Gong practitioner and the harm that he feared in China as a result, in his application for a protection visa lodged with the first respondent's Department. But clearly in the circumstances before me, the Tribunal, in not accepting the credibility of the applicant's claims, relied on what the applicant himself put to the Tribunal at the hearing it conducted with the applicant to reach this conclusion. I can see no jurisdictional error in the Tribunal's decision in this or any other regard. This application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 31 October 2005
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