SZIAQ v Minister for Immigration and Citizenship
[2008] FCA 654
•13 May 2008
FEDERAL COURT OF AUSTRALIA
SZIAQ v Minister for Immigration and Citizenship [2008] FCA 654
SZIAQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2493 OF 2007
RYAN J
13 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2493 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIAQ
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RYAN J
DATE OF ORDER:
13 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, fixed in the sum of $4,400.00.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2493 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIAQ
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RYAN J
DATE:
13 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By way of notice of appeal filed in this Court on 20 December 2007, the appellant appeals from orders made by Turner FM on 6 December 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). On 15 May 2007 the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Citizenship (“the Minister”) dated 14 April 2005, to refuse to grant a protection visa to the appellant.
Background
The appellant is a national of the People’s Republic of China, and arrived in Australia in February 2005 for the purposes of a business trip. On 24 March 2005 the appellant applied for a protection visa, claiming that he had resumed his practice of Falun Gong whilst in Australia, and that he feared persecution if he were to return to China.
On 26 April 2005 the appellant applied to the Tribunal for a review of the delegate’s decision, and attended a hearing on 7 November 2005. On 13 December 2005 the Tribunal published its decision, affirming the decision of the delegate of the Minister. On 20 November 2006 the Federal Magistrates Court ordered that the decision of the Tribunal handed down on 13 December 2005 be quashed, and remitted the appellant’s application to the Tribunal for reconsideration and determination according to the law.
On 22 January 2007 the appellant attended a hearing before the Tribunal. In the course of that hearing, the appellant asserted a well-founded fear of persecution due to his adherence to the Falun Gong movement. The appellant claimed to have commenced performing Falun Gong exercises in November 1998 and to have ceased practising due to the July 1999 crackdown by the Chinese authorities. At that time, according to the appellant, one of his fellow pupils was arrested and subjected to torture. Later, in September 1999, the appellant himself, he said, had been taken into custody and ordered to cease practice of Falun Gong. He claimed to have been released upon payment of a bribe to local officials by friends, and to have subsequently been threatened in his home by police.
At each of the hearings before the Tribunal, the Tribunal pointed out to the appellant that his evidence was inconsistent with the evidence of Mr C, who had travelled to Australia with the appellant and had given evidence at a hearing of his own application for a protection visa. The appellant gave evidence that he had only met Mr C during the flight to Australia and had not known him previously because, although working in the same company, they had been employed by different subsidiaries.
On 19 March 2007 the Tribunal wrote the following letter to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”);
‘INVITATION TO COMMENT ON INFORMATION
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows:
· You lived at the same address in Tianjin between the years 1980 and 2005. In your Protection Visa Application (PVA) you state that you departed China legally on 26 February 2005 with a passport issued in Tianjin on 03 December 2004. You obtained an Australian business visa issued in Beijing on 18 January 2005.
This information is relevant as it may indicate you were not of any interest to the Chinese authorities when you obtained your passport and that you obtained a business visa to come to Australia in order to pursue business interests.
· You told T1 that your boss was resentful that you knew about the corruption and that your boss had therefore decided to send you out of China and you also stated your boss told you that his company wanted to send one person to Australia to inspect the business market in Australia.
This information is relevant as it may indicate you did not flee China fearing Convention related harm but came to Australia on a business visit at the behest of your employer.
· In your PVA you stated that you were employed with the Ji Mi company until you left China but you told T1 that you resigned from the Ji Mi company in early 2002.
This information is relevant as it may indicate you have provided inconsistent information in your PVA and to the Tribunal and it may lead the Tribunal to conclude you are not a witness of truth.
· You told the Tribunal that your travelling companion Chai probably worked for a machinery processing factory, but that this was a different subsidiary company from the one in which he was employed. You told the Tribunal that you had met Mr Chai on the aeroplane to Australia.
· You told the Tribunal that the Hang Feng company was owned by the government.
· The Tribunal advised you that Mr Chai had told the Tribunal that he had met you at the Hang Feng company, that the company was privately owned and he had not told the Tribunal that he and you had met "on the aeroplane".
This information is relevant as it may indicate you have provided inconsistent information with that of Mr Chai and it may lead the Tribunal to conclude you are not a witness of truth.
· You told the Tribunal that your boss had told you about the trip to Australia one week before your departure. Your passport on which you departed from China on 26 February 2005 was issued in Tianjin on 3 December 2004. Your 3-month Temporary Business visa was issued in Beijing on 18 January 2005. This was obtained over a month before you claim your employer informed you about a trip to Australia. (original emphasis)
This information is relevant as it may indicate you applied for your business visa over one month before your departure and it may indicate you knew about the trip to Australia at least a month before your departure, not a week. It may indicate you have provided information to the Tribunal that is not supported by the information disclosed on your passport and it may lead the Tribunal to conclude you are not a witness of truth.
· You told the Tribunal (TI) in a submission that in September 1999, you “received a notice from the local police station at Jun Liang Chen to report in person". In your PVA you did not mention receiving a notice from the police or two visits made by the police to you. Nor did you in your PVA claim that you had to report to the police, or that you were detained and had to pay money for release, as stated to T1.
This information is relevant as it may indicate you have provided inconsistent information in your PVA and to the Tribunal and it may lead the Tribunal to conclude you are not a witness of truth and it may indicate to the Tribunal that you did not come to the adverse attention of the Chinese authorities.
If the Tribunal concludes you are not a witness of truth it may conclude you did not practise Falun Gong in China. If the Tribunal concludes you are not a witness of truth and if it concludes you were not a Falun Gong practitioner in China it may conclude that your Falun Gong activity in Australia was undertaken in order to enhance your claims to refugee status.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 3 April 2007.’
The appellant’s solicitor responded as follows on 30 March 2007;
‘In reference to your facsimile dated 19 March 2007, the applicant instructs as follows.
1.The applicant did live at the same address in Tianjin. The applicant’s company applied for his passport and visa on the applicant’s behalf.
2.Corruption is common in China and the applicant gave this information as to the first Tribunal as to explain why he was chosen to come to Australia on business. This information is separate from his Falun Gong claims.
3.At page 6 of the PVA, the applicant has detailed his work history 2002-2005 Heng Feng Technology and Trade Co. Ltd. This is not inconsistent with resigning from JI MI Company in early 2002.
4.The applicant instructs that his boss introduced him to Mr Chai just before they boarded the airplane. He did not known Mr Chai well and has lost contact with him in Australia. The applicant was not privy to Mr Chai’s hearing and therefore, he is unable to comment on what Mr Chai said. Heng Feng was owned by the government and Mr Chai worked in a different subsidiary of Heng Feng that may be privately owned.
5.The applicant’s boss arranged his passport and visa and he was told about it one week before departure and was given his passport at the airport.
6.The applicant instructs that he was hesitate to tell anyone about paying a bribe to be released from police custody as it was embarrassing and he believes paying bribes was against the teachings of Faun Gong.’
The decision of the Tribunal
The Tribunal found that the appellant was not a witness of truth, but had fabricated his claims in order to obtain a visa. It found implausible the appellant’s evidence that he had become aware of his business trip to Australia only one week before his departure. The Tribunal also noted that the appellant’s evidence was inconsistent with that of his travelling companion, Mr C. The Tribunal also found that there were inconsistencies in the appellant’s evidence that in September 1999 he had been summoned to report in person to the local police station at Jun Liang Chen.
The Tribunal rejected the appellant’s claim that he had practised Falun Gong whilst in China, noting also that the issue of a passport to the appellant was inconsistent with his purported adherence to Falun Gong. The Tribunal held that the appellant’s conduct in Australia should therefore be disregarded pursuant to s 91R(3) of the Act, as it was satisfied that the appellant had engaged in Falun Gong in this country solely for the purpose of aiding his visa application.
The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason and, accordingly, held that he was not a person to whom Australia owed protection. On 15 May 2007 the Tribunal published its decision, dismissing the appellant’s application.
Application before the Federal Magistrate
On 5 June 2007 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. The appellant claimed that the Tribunal had fallen into jurisdictional error by reason of a contravention of s 424A of the Migration Act 1958 (Cth) (“the Act”). The appellant contended that the Tribunal had given incorrect particulars and omitted elements of the information on which it intended to rely when giving the appellant the invitation contained in the letter of 19 March 2007 reproduced at [6] above.
The learned Federal Magistrate accepted that the Tribunal was obliged not to mislead the appellant about the nature of the information which it considered would be the reason or part of the reason for affirming the decision under review. His Honour had regard to a transcript of the Tribunal hearing and found that the Tribunal’s summary of the inconsistent statements of the appellant and his colleague had not been misleading, but had correctly captured their different accounts. In his view, s 424A did not require that the exact language of the original statement be reproduced; it was sufficient for a balanced account of the relevant information to be given. Turner FM considered it appropriate for the Tribunal to have put to the appellant for comment perceived inconsistencies between the appellant’s statements and those of his colleague. His Honour found that the Tribunal had not misled the appellant and had not contravened s 424A of the Act.
The learned Federal Magistrate also rejected the appellant’s contention that he had been deprived of a hearing because of the inadequate service provided by the interpreter appointed to assist him at the Tribunal hearing.
Accordingly, on 6 December 2007, the Federal Magistrates Court held that there was no jurisdictional error, and dismissed the application, with costs.
The appellant’s case in support of the appeal
On 20 December 2007 the appellant filed a notice of appeal in this Court which listed these grounds of appeal;
‘1.In clause 18 of the decision record, His Honour erred in finding that statements in the Tribunal’s letter under section 424A of the Migration Act 1958 were not misleading, or capable of being misleading.
……
2.There were fundamental errors in the translation which were not raised by the applicant’s council before the Federal Magistrate and were not brought to the attention of the applicant. These inconsistencies denied the applicant a fair hearing and a successful outcome. The applicant told the Tribunal that his wife had been taken away by the police for 10 days. The interpreter translated this as the applicant was released after being held at the police station for 4 days. The error in translation denied the applicant a fair hearing. This evidence was crucial to the tribunal’s determination that the applicant was not a witness of truth.
… …
3.In clause 18 of the decision record, His Honour erred in finding no denial of procedural fairness.’
The orders sought by the appellant in his notice of appeal are as follows;
‘1. Appeal against the decision of the Federal Magistrate allowed.
2. Application to the Federal Magistrate upheld.
3. Order remitting the matter to the Tribunal be reheard.
4. Costs of this Court and the Court below.’
The notice of appeal was accompanied by a supporting affidavit, sworn on 20 December 2007, in which the appellant deposes to the following:
‘1.I listened to the recording of my hearing at the first and second hearing before the Refugee Review Tribunal and I noticed the following error in translation.
2.Before the first Tribunal on 7 November 2005, I told the Tribunal member that I was summonsed to the police station for questioning and I was bailed out later that night. I later told the Tribunal member that my wife was detained by the police station for ten nights.
3.The translator made an error in translation and interpreted to the tribunal member that I later said I was bailed out after four nights. The translator is from the Chinese province of Guangdong and speaks the Cantonese dialect. My understanding is that he found it hard to understand my Mandarin dialect which has a strong influence of Tianjin accent. In Chinese the sound for ten “shi” and four “si” is very similar and my understanding is the translator misinterpreted what I said.’
On 10 January 2008 Deputy Registrar Farrell made a direction that the appellant file and serve written submissions no later than five clear working days before the hearing date, unless otherwise directed. This order has not been complied with, and no written submissions have been received. When this was pointed out to the appellant today, he furnished copies of a document consisting of Chinese text and an English translation. On examination, that document was another version of an affidavit filed in this Court by the appellant on 30 April 2008. That affidavit reiterated that the appellant had never met Mr C before he was introduced to him at Tianjin airport before their flight to Australia. It stressed the appellant’s commitment as a Da Fa practitioner to;
‘… Truthfulness, Compassion and Forbearance.’
The affidavit also attributed to mistranslation the discrepancy identified by the Tribunal about whether the appellant had been detained at the police station for four days or ten days or had been released on the same day. As to whether the appellant had been employed by a government-owned enterprise or a privately-owned entity, the affidavit set out to explain that the Hengfeng Science and Tradewood Processing Factory for which he had worked, was a privately-conducted enterprise which had been spun off from the State-owned Hengfeng Science and Trade Company Limited as a part of recent economic redistribution in the People’s Republic of China. The affidavit concluded with these paragraphs, seeking to introduce further country information in support of the appellant’s claim to refugee status;
‘9. September 25 is my birthday. I will never forget my birthday of 1999 for the rest of your life. On that day when my friends and I had dinner, the police rushed in and threatened me that I could no longer practice Falun Gong and they forced me to give up practising; otherwise they would exert pressure on the leaders of my work unit, I was forced to resign my job. After leaving the company, I found a new job. In September 2002, I transferred to Hengfeng Science and Trade Co. Ltd and have been in charge of technical work of a wood processing factory. On February 247, 2005, I came to Australia. Breathing the free air here in Australia, I go to Bankstown practice site in the morning to do Falun Gong exercises, study Fa and join all Fa activities.
Since I lodged my application for the protection visa, I have been calling my family but no one has answered my phone calls. I am really worried but I can do nothing. For once, I eventually reached my sister by phone and was told what had happened. Since I came here, my wife has been implicated and detained by the police for 10 days. My young daughter has been left alone under no care. Later, my daughter wrote me a letter, telling me in details about what had happened. The letter is attached.
Under the Chinese Communist regime, people have no right to freedom of thought and beliefs; this is especially true with Falun Gong practitioners whose human rights have been severely abused. The appalling persecution has reached a level never known before. Female practitioners were stripped naked in prison and put into male cells and gang-raped. WANG Dirong, a practitioner from Shandong province and her eight-month baby were brutally persecuted to death. The live organs of Falun Gong practitioners were removed. Recently, Amnesty International, the world human rights organisation and many overseas media have reported that China’s brutal persecution of Falun Gong practitioners with the fact and the specific figure. According to incomplete statistics, more than 3,000 Falun Gong practitioners have been tortured to death; as many as 800,000 Falun Gong practitioners have been illegally detained, sent to labour camps, tried and sentenced without due process, forced into mental institutions, torn apart from their families and forced to leave their homes to escape illegal arrest and persecution; countless family members, friends, colleagues and workplaces of Falun Gong practitioners are suffering by implication. Now, the Chinese communist regime treats the killing of Falun Gong practitioners as suicide, and tries all means to destroy the practitioners physically and spiritually. There is no human rights and no freedom of believe in P.R. China. The recent killing of Tibetans is the other example.
I sincerely seek for the Australian Government’s protection. If I return to China, there is no doubt that I will be put into jail, forced to give up my practice, even facing a danger of organ removals and being persecuted to death with being known.
In the same world but in China there is no freedom and no human rights. Once again, I sincerely seek for the Australian government’s protection. Thank you very much!’
Exhibited to that affidavit was a translation of a letter from the appellant’s daughter which recounted events since the appellant had left China, including health problems which had been suffered by the appellant’s father and mother and the difficulties experienced by his wife and sister. In his oral submissions to the Court today, the appellant rehearsed much of the material which had been put before the Federal Magistrates Court and reiterated in the affidavit filed on 30 April 2008 to which I have just referred. He was at pains to emphasise that he had first met Mr C at the airport shortly before they embarked on the flight to Australia.
Consideration of the appeal
Whether the Tribunal could be satisfied that the appellant had a well-founded fear of persecution by reason of his adherence to Falun Gong was essentially a question of fact for the Tribunal. Its resolution of that question depended partly on its assessment of country information about the treatment by the authorities in the People’s Republic of China of practitioners of Falun Gong.
In relation to the genuineness of the appellant’s personal commitment to Falun Gong, the Tribunal was required to make an assessment of his credibility in the light of whatever corroborating evidence he was able to furnish to the Tribunal. It is not to the point that this Court might have come to a different conclusion if required to decide for itself whether the appellant has a genuine, subjective adherence to Falun Gong or would be perceived by the authorities in the People’s Republic as having the profile of an adherent to that philosophy. The Court is confined to identifying some legal error in the Tribunal’s resolution of the factual questions to which I have just referred, which resolution is reposed by the Act exclusively in the Tribunal. The complaints which the appellant has repeated today go essentially to the Tribunal’s evaluation of the relevant facts and do not disclose any jurisdictional or other legal error. Accordingly, the appeal must be dismissed with costs. In the circumstances, and having regard to the fact that different Counsel have been retained on the hearing of the appeal, the costs which I shall order will be fixed in the sum of $4,400.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 13 May 2008
The appellant appeared in person Counsel for the First Respondent: Ms T Wong Solicitor for the First Respondent: DLA Phillips Fox
Date of Hearing: 13 May 2008 Date of Judgment: 13 May 2008
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