SZIHR v Minister for Immigration
[2006] FMCA 1250
•15 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1250 |
| MIGRATION – RRT decision – Chinese person fearing persecution for Falun Gong activities – delay in making protection visa application – Tribunal disbelieved explanation – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 424A(3)(b), 424B, 425(2)(a), 474(1), 476
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
| Applicant: | SZIHR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG409 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 15 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr S Lloyd |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG409 of 2006
| SZIHR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 9 February 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 January 2006 and handed down on 24 January 2006. The Tribunal affirmed a decision of a delegate made on 24 August 2005 which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.476 is the “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to set aside the Tribunal’s decision unless I am satisfied that it was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The applicant arrived in Australia in late February 2005 on a three month visitor’s visa. It appears he had at least one child studying in Sydney. About three months after his arrival, he lodged an application for a protection visa on 27 May 2005, assisted by an agent, Ms Grace Chen. She also assisted him when he appealed to the Tribunal, and accompanied him to the Tribunal’s hearing.
His protection visa set out his claims for protection in Australia in very general and obscure terms. He claimed that he had been “treated as a political and religious dissident by the Chinese authorities and I had already suffered from persecution prior to my departure from China”. He claimed to believe that he would be “arrested or kidnapped illegally without an arrest warrant” if he returned, and gave the following reason for leaving China:
Because I had been persecuted in China & I had to escape in order to avoid further persecution.
When I was chairing a secret rally in my place, we were surrounded by local police. Five of my group members were taken away. We had to scatter & went into hiding. Because I was wanted without a proper and legal wanted circular. I had to go into hiding in countryside. Then through difficulties and secret channels, I had to organize my departure to Aust.
No details of these events were provided to the delegate, and no evidence was given.
On the morning of its hearing on 28 November 2005, the Tribunal was sent a facsimile statement, signed by the applicant, in which he said: “I wish to further elaborate my claims prior to the scheduled hearing”. In the statement he claimed that on 28 January 2005: “5 of my group members were taken away” when “my place was surrounded by the Police”. He claimed that three further persons were arrested at the beginning of March and subsequently sentenced, and referred to the arrest in earlier years of three of his brothers. Another brother’s wife had been arrested in early March 2005. He also claimed that a third child, his son “has been given to my youngest brother … when my son was a one week old baby because he was a “black child” and could not be registered household register”. An explanation for these various arrests was not given in the statement.
According to the Tribunal, the applicant made the following statements at the hearing explaining his decision to seek protection in Australia after receiving information from China:
The Applicant is a company business manager. He has been working for the same company since 1996. He obtained a tourist visa to enter Australia. It was his intention to stay one week and return to China in March 2005. He experienced no difficulties departing China using a passport in his own name.
…
The Applicant agreed he had not suffered any persecution prior to leaving China. His main problem was that the police were looking for him after they arrested five people at his premises on 28 January 2005. On 2 March 2005 his brother’s wife was also arrested. This was a warning to the Applicant that the situation was becoming more serious.
…
I asked the Applicant if he had ever been arrested in China to which he replied “No”. The Applicant stated that from 2 March 2005 he has become a wanted man. I asked how he knew that. He said he phoned his family and was told he had been put on a wanted list which included his photo. Three people were arrested on 2 March 2005. After being detained they placed all responsibility on the Applicant which resulted in the Applicant being wanted by the authorities. I asked the Applicant how he became aware of this information. He phoned his brother who told him that his photo was on a wanted list and his name was on the internet and the Customs’ website. He had intended to return to China on 8 March 2005 but because of this, he decided not to go home. I asked what he meant by his statement that the three people who were arrested on 2 March 2005 had put all the responsibility on the Applicant. He stated that the people concerned were beaten and because they knew the Applicant was not in China, they blamed him. I asked who told him that piece of information. He said he phoned one of them, his brother’s wife. She told the Applicant not to phone again.
The Tribunal then questioned the applicant concerning his reference to his third child in his statement to the Tribunal, and about his reasons for never mentioning that child previously.
The applicant gave the Tribunal evidence concerning how he had avoided police between the police raid on his house at the end of January 2005, and his departure at the end of February 2005. It emerged that the group of six had been “discussing Falun Gong when the police arrived”. He told the Tribunal that he had begun to practice Falun Gong in 1998. The Tribunal questioned him about Falun Gong literature, and it thought he showed an inadequate knowledge of that literature and events concerning Falun Gong in China.
The Tribunal questioned the applicant concerning his practice of Falun Gong since coming to Sydney, and the applicant told the Tribunal that he had not contacted the Falun Dafa Association in Sydney but had been practicing its exercises “Saturdays and Sundays and usually goes to Chinatown with other people. From Monday to Friday he practices outside the Chinese Embassy in Newtown”.
At the end of the hearing, the Tribunal returned to the topic of the applicant’s delay in applying for protection. It said:
I asked the Applicant why he waited so long to apply for a protection visa. He said it was because he had intended to go back and did not intend to stay in Australia. I mentioned to the Applicant that he had earlier stated in his evidence that he could not go home once he heard about the March 2 incident. The Applicant stated that the Chinese investigation took some time and his brother did not tell him until some time later that he was on the wanted list.
Subsequent to the hearing, the applicant presented his passport to the Tribunal, and copies of its contents were taken by the Tribunal on 30 November 2005.
On 29 November 2005 the Tribunal sent to the applicant an invitation pursuant to s.424A(1) of the Migration Act, inviting his comments on his failure to mention his third son in his protection visa application, on an inconsistency which the Tribunal thought existed between the statement in his protection visa application that he had been “heavily involved in Falun Gong activities in Australia since [his] arrival in February 2005” and his evidence before the Tribunal that his only activity had been to practice Falun Gong on a daily basis, and on inconsistencies in his references to his marital status. The applicant gave a written response to this invitation, which sought to explain these matters.
In its statement of reasons, the Tribunal referred to the above matters, and to country information concerning the history and situation of Falun Gong in China and controls over passports and exit permits.
Under the heading “Findings and Reasons”, the Tribunal stated a conclusion at the commencement:
In dealing with this application, the Tribunal has formed the view that the Applicant lacks credibility and his claims cannot be accepted. The Applicant’s evidence was inconsistent, contradictory and implausible.
Although it thought that his explanation concerning his marital status was plausible, it said that other “contradictions, inconsistencies and implausibilities” led it to conclude that “the Applicant is not truthful or credible in relation to some key aspects of his claims”.
The Tribunal then in four “dot” points gave reasons for that conclusion. The first, second and fourth points referred to his unconvincing evidence as to why he had not referred to his third child earlier, his unconvincing explanations for a lack of knowledge about some key aspects of Falun Gong, and country information suggesting that “the Applicant’s unhindered exit from China suggests that he was not of any adverse interest to the Chinese authorities at the time he departed China”.
The third point made by the Tribunal was expressed in the following way:
·The Applicant claimed that the police attended his home in January 2005, arrested five persons who were present at his home at that time, and he escaped. The Applicant claimed that the police were not aware of his identity until after he had left China, yet agreed that he had rented the premises using his own name and producing his Identity card. It was the Applicant’s evidence that he was wanted by the authorities in China from 2 March 2005 and because of that he did not return to China as planned on 8 March 2005. He told the Tribunal he had received information that he was on a wanted list when he telephoned his brother in China. When asked by the Tribunal why he waited so long to lodge a protection visa application he stated that it was his intention to return to China as he did not intend to stay in Australia. When the Tribunal mentioned to the Applicant that he had earlier stated in his evidence that he could not go home once he heard about the March 2 incident, the Applicant stated that the Chinese investigation had taken some time and his brother did not tell him until some time later that he was on the wanted list. I am not satisfied that the Applicant is of any adverse interest to the Chinese authorities. I am not satisfied that five persons, suspected of involvement in Falun Gong were arrested at the Applicant’s home, or that the Applicant was forced into hiding because of a suspicion held by the Chinese authorities that he was involved in Falun Gong activities at that time.
I shall return to consider the reasoning in this paragraph further below, in relation to the Tribunal’s obligations under s.424A(1).
As a result of all its findings about the applicant’s credibility, the Tribunal concluded:
I am not satisfied that the Applicant is a Falun Gong practitioner, or has been engaged in the practice of Falun Gong since 1998. I also rely on country information cited above which refers to one of Master Li’s books, and in particular, Dr Penny’s reference to genuine Falun Gong practitioners who would hold that particular book “in reverence” and that it would have been read “over and over”. I am also supported in my finding by the Applicant’s lack of support from the Falun Dafa organisation in Australia. His oral evidence before the Tribunal explaining this lack of contact and support is unpersuasive.
Overall, I reject the Applicant’s claim that he practiced Falun Gong in China. Since I do not accept that the Applicant is a Falun Gong practitioner, I am not satisfied that the Applicant was, prior to leaving China, or is currently wanted by the Chinese authorities, or that he will suffer persecution if he returns to China. I am not satisfied that the Applicant will suffer persecution because he fathered a third child in China, as claimed. In my view, the Applicant fabricated the above claims in an attempt to create for himself the profile of a refugee. On the evidence before me, I am unable to be satisfied that the Applicant has a well founded fear of persecution for a Convention reason.
There is no credible evidence upon which I could find that the Applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to China. Accordingly, I am unable to find that the Applicant has a well founded fear of persecution for a Convention reason.
I have considered the Tribunal’s procedures and reasoning, and have been unable to identify jurisdictional error affecting its decision.
The applicant’s original application to the Court made a general contention that the Tribunal had ignored “the situation and evidence I already provided to them”. However, I have not been able to identify any claim or element of the applicant’s claims which has not been adequately addressed by the Tribunal.
His amended application is not easily read or understood. However, I understand it to raise for consideration whether the Tribunal has complied with its obligation under s.424A(1) and s.424B to invite the applicant in writing to give written comments on “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. That duty does not apply to classes of information identified in s.424A(3)(a) and (b), which cover information “not specifically about the applicant” and information “that the applicant gave for the purpose of the [review]application”.
As I have indicated, the Tribunal did serve such a notice in relation to some of the inconsistencies that the Tribunal thought arose from comparing the applicant’s evidence to the Tribunal with statements in his protection visa application. In my opinion, no concern arises in relation to those matters.
I did, however, identify in the preliminary stages of this matter a concern arising from the Tribunal’s reference in its third “dot” point, extracted above, to the period between the lodgement of the protection visa application and the applicant’s arrival in Australia. I was concerned whether this reasoning used “prior information” which was not the subject of a s.424A(1) notice.
I have been assisted by submissions from counsel for the Minister, and am now satisfied that no failure to comply with s.424A(1) arises in relation to the use of information concerning these dates. I accept counsel’s principal submission, which is that the reference to “when asked by the Tribunal why he waited so long to lodge a protection visa application” in the third “dot” point extracted above does not indicate the Tribunal using the period of delay and its pertinent dates as a part of its reasons for affirming the delegate’s decision. Rather, the inconsistency which the Tribunal has somewhat obliquely referred to, is the inconsistency between two pieces of evidence given by the applicant to it at the hearing. The first was in his statements that he had been told between 2 and 8 March 2005 that he had become “wanted by the authorities” and had been told by his brother “that his photo was on a wanted list and his name was on the internet and the Customs’ website”. The Tribunal thought that this was inconsistent with his statements later at the hearing where he told the Tribunal that “his brother did not tell him until some time later that he was on the wanted list”. The Tribunal’s phrase: “when asked by the Tribunal why he waited so long to lodge a protection visa application” did no more than identify this inconsistent statement made at the hearing. I therefore consider that the Tribunal’s reasoning in this paragraph relies entirely upon evidence given by the applicant to the Tribunal for the purposes of his review application.
I also accept the submission of counsel for the Minister that, in any event, the applicant “gave” for the purposes of s.424A(3)(b) both of the pertinent dates relevant to the delay in the course of presenting to the Tribunal, first, his passport showing the date of his arrival and, secondly, the documents accompanying his review application which stated the date of his protection visa application.
I therefore reject the one ground which appears in the applicant’s amended application alleging breach of s.424A(1). As I have explained above, I can identify no other arguable jurisdictional error affecting the Tribunal’s decision.
The applicant attended today and was assisted by an interpreter. He had previously attended at a first court date and a show cause hearing where he was similarly assisted. In the course of the first court date on 8 March 2006, he had been informed by me and by an information sheet of the nature of the proceedings, and that he would need to show a legal error by the Tribunal. He was referred to an experienced solicitor under the free legal panel advice scheme and has received advice from that solicitor. I am informed from the bar table that the solicitor was sent tapes of the Tribunal’s hearing, and that the applicant and his agent have otherwise been able to obtain those tapes from the Tribunal.
The applicant today maintained that the tapes (which he did not bring to Court) might show that he had not given inconsistent evidence to the Tribunal, and obliquely sought an adjournment to present evidence as to what was said at the Tribunal hearing. However, the need to present a transcript to the Court was clearly explained to him at the first court date, including by an order which said:
4.Other than the green book, all evidence relied upon by the parties shall be presented by way of affidavit. Evidence of a Tribunal hearing shall be presented as a transcript verified by affidavit, and a tape recording shall not be received without the leave of the Court obtained prior to the hearing.
In my opinion, the applicant has had more than ample time to obtain a transcript to present to the Court. I therefore refused the adjournment application and have decided the case based on the Tribunal’s description of the hearing, as I have set it out above.
The applicant made some other points in the course of his submissions to me. He queried the fairness of the Tribunal’s procedures, when telling him in the letter inviting him to attend a hearing that it was “unable to make a decision in your favour”. He suggested that this showed it had already made up its mind. However, the sentence in which that phrase appears is:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
That statement told the applicant why he was being invited to a hearing, in language derived from s.425(2)(a) of the Migration Act. That provision indicates that the Tribunal is not obliged to invite an applicant to a hearing where it can decide “the review in the applicant’s favour on the basis of the material before it”. As I explained to the applicant today, the procedure followed by the Tribunal is to make a preliminary review of the documentary material before it, before deciding whether a hearing is necessary so as to allow the applicant to present further oral or written material. I do not consider that, in view of the statutory scheme, any failure of procedure occurred in relation to the letter of invitation, nor that the letter might cause an apprehension of bias under the relevant principles (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]‑[32]).
The applicant’s other points today concerned his feelings that he was not adequately able to present his arguments to the Court due to his English difficulties and inability to employ a lawyer. I understand those problems, and have endeavoured to consider whether there are arguments which could win him this case which might have been presented by a legal representative had he had one.
However, for the above reasons, I consider that the Tribunal’s decision was not affected by jurisdictional error. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding thirty‑five (35) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 31 August 2006
0