SZHAE v Minister for Immigration
[2007] FMCA 316
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 316 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.424Aof the Migration Act or misapplication of s.91R(3). |
| Migration Act 1958, ss.91R(3), 422B, 424A, 425, 425A |
| Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SAAS v Minister for Immigration & Multicultural Affairs [2002] FCA 726 SAAS of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 340 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR 1 |
| Applicant: | SZHAE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2347 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 January 2007 |
| Date for Last Submission: | 2 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2347 of 2005
| SZHAE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 August 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia on 8 December 2004. On 19 January 2005 he lodged an application for a protection visa.
In a statement accompanying his protection visa application the applicant claimed that his initial purpose in coming to Australia was tourism, but that he became interested in Falun Gong in Australia before Christmas 2004 when he came across someone distributing literature on the street. He claimed he studied some books and got to know some basic techniques and “now” (the statement was dated 10 January 2005) attended group practice five to six times each week and also practised at his own home and actively took part in other Falun Gong activities. He claimed that if he returned to China he feared being persecuted for his religious belief and membership of Falun Gong.
The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the Court of the Tribunal hearing is the Tribunal statement of its reasons for decision. It is relevant to have regard to its account of what occurred in the hearing.
The Tribunal recorded that at the Tribunal hearing the applicant said that he first became interested in Falun Gong in Sydney “one month” after he came to Australia, or just before Christmas 2004, after he observed a Falun Gong promotion. He said a friend had assisted him with his protection visa application. He qualified that this person was a friend of a friend and that he did not know his full name. He said he turned to them for help less than a month after he came to Australia, telling them that he wanted to stay longer in Australia.
The Tribunal stated that as it recalled that the applicant had claimed he first encountered the Falun Gong movement in Australia one month after his arrival, it questioned him as to whether he sought a means to remain longer in Australia even before his claimed first contact with the Falun Gong movement. It recorded that the applicant replied in the negative and claimed that he became involved with the Falun Gong movement less than one week after he came to Australia.
The Tribunal recorded that it then put to the applicant that he appeared to be providing contradictory claims as to when he first involved himself with Falun Gong. The applicant denied that there was a contradiction, but then appeared to change his evidence as to his link to the person who had helped him with the protection visa application.
The Tribunal stated that it put to the applicant his two contradictory pieces of evidence about when he joined the Falun Gong movement (“one month” or “less than one week” after he arrived in Australia) and that this appeared to have nothing to do with who his friends were. The applicant then said he first made contact with the Falun Gong movement just before Christmas 2004.
The Tribunal recorded that it asked the applicant to state the date on which he first joined in the group Falun Gong exercises (as discussed in his 10 January 2005 statement) and that he said that he first joined the exercises on 10 January 2005. The Tribunal stated that there “seemed to be an anomaly in the facts here, because the applicant by now had alternatively claimed that he first exercised with other Falun Gong adherents on 10 January 2005 whilst also having claimed as at that date that he had been a regular exerciser, five or six times a week, since before Christmas 2004”.
The Tribunal put to the applicant that the first day on which he involved himself with Falun Gong was, according to his evidence, more than one month after he arrived in Australia and that one might conclude that he turned to his friends before that time and subsequently made contact with the Falun Gong movement and then lodged a protection visa application citing Falun Gong practice as the ground for the application. The applicant denied this.
The Tribunal then questioned the applicant about his knowledge of Falun Gong exercises and observed that he failed to demonstrate any knowledge of the names or purposes of any of the basic exercises. The applicant’s response was that when he was granted a bridging visa on 19 January 2005 he suspended his Falun Gong practice and worked five days a week. The Tribunal stated that according to the applicant’s evidence at the hearing “the most time he spent involving himself with Falun Gong exercises was about nine days: 10 to 19 January 2005”. It also recorded that when it asked the applicant why he did not make time to join group exercises on his days or evenings off work, the applicant indicated that he joined Falun Gong for physical fitness. He agreed that he was not really interested in Falun Gong and that his interest was merely in enhancing his health.
In its reasons for decision the Tribunal stated:
The Applicant gave contradictory information about his claimed adherence to Falun Gong at the RRT hearing. He gave contradictory evidence as to what came first, his decision to follow his desire to remain in Australia, and his claimed discovery of the benefits of Falun Gong. He failed to impress the Tribunal as to a genuine knowledge or interest in Falun Gong. In fact, he said at one point, in response to concerns about his good faith, that he was only interested in his physical health. At another point he made it clear that working in Australia for money was more important than pursuing his claimed interest in Falun Gong. He gave contradictory evidence as to his relationship with the person or persons who helped him provide information in his protection visa application. Ultimately, the Tribunal was struck by numerous strong indicators of bad faith in the present case. (emphasis added)
The Tribunal did not accept on the evidence before it that the applicant had developed an interest in Falun Gong beyond ascertaining a few “bare facts” about it in order to concoct the basis for an application to reside and work in Australia. The poor quality of the applicant’s evidence led it to conclude that he had invented an affiliation with Falun Gong in order to concoct grounds for obtaining a protection visa. The Tribunal dismissed the application on the basis of a lack of credibility on the applicant’s part, finding that having regard to the insignificant extent of the applicant’s contact with Falun Gong movement, it was confident that he had only done so in order to construct his refugee claims and that s.91R of the Migration Act 1958 required it to disregard such behaviour. It was not satisfied the applicant faced a real chance of Convention-related persecution in the People’s Republic of China or that his claimed fear of such persecution was well founded. It found that he was not a refugee.
The applicant sought review of the Tribunal decision by application filed in this Court on 24 August 2005. In his application he claimed generally that he had a fear of persecution and that the Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 (Cth) and denied him procedural fairness. No particulars were provided and the applicant did not address these claims in oral submissions. However the respondent’s submissions addressed the issue of compliance with statutory obligations and other issues. The applicant was given the opportunity to provide written submissions in reply after the hearing. No such submissions have been filed.
First, there is nothing in the material before the Court to suggest that the Tribunal failed to comply with its obligations in ss.425 and 425A in relation to inviting the applicant to a hearing. The applicant attended a hearing and gave oral evidence and during the hearing the Tribunal discussed with him issues that went to or formed the reasons for its decision according to its reasons for decision (which form the only evidence before the Court of what occurred in the Tribunal hearing). There is nothing to suggest that there was any denial of procedural fairness, and see s.422B of the Act and MIMIAv Lat (2006) 151 FCR 214. No lack of procedural fairness is established.
I have also considered the application of s.424A. One issue addressed by the first respondent in submissions is whether the Tribunal relied on any contradictions between the claims made in connection with the protection visa application and the claims made in the Tribunal hearing. In particular, the applicant claimed in the statement of 10 January 2005 made in connection with his protection visa application that his first contact with Falun Gong was before Christmas 2004 and that he “now” attended group practice five to six times a week, practised at his own home every day and actively took part in other Falun Gong activities, but at the hearing stated that he first exercised with Falun Gong adherents on 10 January 2005. However I am not satisfied that the Tribunal did in fact rely on contradictions between the information in the protection visa application and the information given at the Tribunal hearing such that this would be part of the reason for the decision. Hence the Tribunal was under no obligation to give the applicant particulars of the information provided to the Department (see SZEEU v MIMIA & Anor (2006) 230 ALR 1).
It is clear that in the findings and reasons part of its decision the contradictions relied on by the Tribunal were the contradictions about the applicant’s claimed adherence to Falun Gong “at the RRT hearing”. The Tribunal relied on the contradictory oral evidence as to what came first, the applicant’s decision to follow his desire to remain in Australia or his claimed discovery of the benefits of Falun Gong, and also on his lack of knowledge or interest in Falun Gong and the contradictory oral evidence about the persons who helped provide information in the protection visa application.
When the Tribunal account of what occurred in the Tribunal hearing is considered it is apparent that the Tribunal had in mind the fact that initially the applicant claimed at the hearing that he first became interested in Falun Gong one month after he came to Australia or just before Christmas 2004 (and I note that this is in fact consistent with the claim that he made in his protection visa application). After he told the Tribunal that he turned to friends for help with the protection visa application less than a month after he came to Australia, the Tribunal reminded him of his claim at the hearing about his first encounter with Falun Gong in Australia being one month after he came to Australia. At that point the applicant claimed that he became involved with the Falun Gong movement less than one week after he came to Australia. The Tribunal went on to state that it put this contradiction about when the applicant first involved himself with Falun Gong to the applicant (that is, whether it was one month or less than one week). The applicant then repeated that he first made contact with Falun Gong just before Christmas 2004.
The Tribunal did record that it then asked the applicant to state the date on which he first joined in the group Falun Gong exercise (“as discussed in his 10 January 2005 statement”). He told the Tribunal that he first joined in the group Falun Gong exercises on 10 January 2005. While the Tribunal recorded that there seemed to be an “anomaly” in the facts because he now claimed he first exercised with other Falun Gong adherents on 10 January 2005 whilst having also claimed at that date that he had been a regular exerciser five or six times a week since before Christmas 2004, it is clear that it went on to accept that, as claimed at the hearing, the applicant’s first involvement in group exercises was 10 January 2005. It clarified with the applicant that its concern was as to when he first involved himself with Falun Gong, accepting that on his evidence at the hearing his first involvement in the group exercises was on 10 January 2005. In other words it proceeded on the basis that the applicant first exercised with Falun Gong adherents on 10 January 2005. In light of this, the Tribunal discussed with the applicant his earlier oral claims and whether he had sought the assistance of friends to help him remain longer in Australia first or made contact with the Falun Gong movement first. It subsequently observed that, according to the evidence at the hearing, the most time the applicant spent involving himself with Falun Gong exercises was about nine days, 10 to 19 January 2005.
Read in context it is clear that the contradictions relied on by the Tribunal in its findings and reasons were (as it stated) the internally contradictory information about the applicant’s claimed adherence to Falun Gong provided “at the [Tribunal] hearing” and not any “anomaly” between claims at the hearing and earlier claims as to the date on which the applicant joined group exercises. This is consistent with the Tribunal’s reference in its findings and reasons to the contradictory evidence at the hearing as to whether the applicant’s decision to follow his desire to remain in Australia or the claimed discovery of the benefits of Falun Gong came first.
In these circumstances the “contradictory” information that formed part of the reason for the Tribunal decision was contained in the applicant’s oral evidence which he gave to the Tribunal for the purposes of his application within s.424A(3)(b). Hence there was no obligation on the Tribunal to give particulars of the information in his protection visa application to the applicant for comment under s.424A(1).
The only other statutory provision that seems to be in issue is s.91R(3). The Tribunal rejected the applicant’s claim for two reasons. First it dismissed his application on the basis of a lack of credibility. Secondly it disregarded any conduct engaged in by the applicant in Australia under s.91R(3) of the Migration Act.
Section 91R(3) requires the Tribunal to disregard conduct engaged in by an applicant in Australia unless the applicant satisfies it that the conduct was engaged in otherwise than for the purpose of strengthening the person’s claim to be a refugee.
In this instance the Tribunal had regard not only to its credibility findings and that the applicant had “invented affiliation with Falun Gong” but also to the insignificant amount of contact the applicant had had with the Falun Gong movement on his own oral evidence. It found that he had only engaged in such conduct in order to construct his refugee claims and hence that s.91R required it to disregard such conduct. It was open to the Tribunal to take this approach on the information before it. I note that in SAAS of 2001 v MIMA [2002] FCAFC 340 the Full Court of the Federal Court agreed with Mansfield J at first instance ([2002] FCA 726) that the Tribunal had not misapplied s.91R(3) in finding that while an applicant may have developed an affinity with (in that case) Christianity through continued study and contact it was “not inconsistent with that occurring that the Tribunal should not be satisfied that the applicant engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee” (Mansfield J at [55]).
No error is established in this case in the Tribunal’s application of s.91R(3) of the Migration Act.
Moreover, the Tribunal’s decision was essentially based on its finding that the applicant was not a credible witness. Such finding was open to the Tribunal on the material before it for the reasons that it gave. Findings of adverse credibility are a matter for the primary decision-maker par excellence (see Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 20 March 2007
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