SZIKR v Minister for Immigration - [2008] FMCA 626

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIKR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 626

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal failed to comply with s.424A or s.425 of the Migration Act.

Migration Act 1958 (Cth), ss.424A, 425

Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982

Applicant:

SZIKR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3913 of 2006

Judgment of:

Barnes FM

Hearing date:

14 April 2008

Date of Last Submission:

8 May 2008

Delivered at:

Sydney

Delivered on:

22 May 2008

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondents:

Mr J. Knackstredt

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3913 of 2006

SZIKR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal handed down on 30 November 2006 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 in 2005 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. The Tribunal affirmed the delegate’s decision on 3 January 2006. The applicant sought review of that decision in this Court. Consent orders were made on 31 May 2006 remitting the matter to the Tribunal for reconsideration. It is the decision of the Tribunal as reconstituted that is the subject of these proceedings.
The applicant’s original claims, as set out in the statement accompanying his protection visa application, are headed “How I became a member of Falun Gong?” However the applicant claimed that his wife had become an active participant in Falun Gong and that she brought some of her fellow practitioners home to practise Falun Gong in a group. The applicant claimed that “he gave them green light and financially support them as well”.
He claimed that his wife’s practice of Falun Gong had been reported to the Bureau of Public Security in their city and that the police had come to their home while they were practising and detained the practitioners for a month “for investigation and interrogation”. He claimed that he was also “adversely affected” for providing a venue and support and that he was required to report to the police station as directed (about two or three times a week), write a statement about how his wife and her friends had practised Falun Gong, name others who came to the home to practise, write a letter of repentance and guarantee not to practise or participate in Falun Gong He claimed that “Such repeated harassment made my factory impossible to operate properly. My business licence was eventually suspended and my company was forced to close down”. The applicant claimed that thereafter they had to go into hiding and went through difficulties and hardships before coming to Australia. His wife made her own application for a protection visa that is not the subject of these proceedings.
When the matter was before the Tribunal, as originally constituted, the Tribunal wrote to the applicant on 9 November 2005 requesting additional information, in particular as to whether the applicant claimed that he was a Falun Gong practitioner in PRC or in Australia and whether he maintained the claims in his protection visa application. He was asked about the outcome of the police enquiries to which he had referred and whether he had provided information to the police.
The Tribunal also wrote to the applicant under s.424A of the Migration Act 1958 (Cth) by letter of 9 November 2005 seeking his comment on certain adverse information.
On 22 November 2005 the applicant responded in writing to the request for information. He stated that he did not practise Falun Gong in China and was “only” a supporter rather than a member. He stated that “I still identify with Falun Gong now”. He also said that he had been required by the authority to pledge that he would not provide support to Falun Gong practitioners, that he had refused to write a requested guarantee and contrition letter and that this was the reason he was persecuted. He did not address the matters raised in the s.424A letter relating to his departure from China, residence at the same address and contradiction in his claims.
The applicant attended a hearing. The Tribunal decision was handed down on 24 January 2006. The applicant sought judicial review.
The matter was remitted to the Tribunal by this court. The Tribunal sent the applicant a further letter pursuant to s.424A of the Act on 12 July 2006 in which it put to him for comment the fact that he had claimed at the first Tribunal hearing to have bribed officials and given false information to obtain his passport while in his protection visa application he had indicated that he left China legally and without any difficulties with the passport issued to him by the local authorities. The applicant responded to this letter stating that while he left China legally and without any difficulties on his own passport he had offered a bribe to obtain that genuine passport. He also claimed that he had been running an alloy factory which went bankrupt, but that to obtain his passport he had provided false information as to his “employment status” to the effect that he was the manager of a named furniture factory.
Subsequently he attended a further Tribunal hearing. In its reasons for decision the Tribunal summarised the applicant’s written and oral claims including evidence given at that hearing. It set out an extract of the transcript from that hearing containing questioning of the applicant about the circumstances in which he obtained his passport and left China. It set out his oral claim that he feared arrest because wife “got into trouble with the Falun Gong and I was involved” and his clarification that he feared arrest “because my wife continues to practise in private. In China even practising in private is illegal”. He claimed that “Once you practice you must get into contact with others by buying literature and communicating with other adherents about what you have learnt, so people know. In China money can solve a lot of problems. You can even get your sentence reduced. China is not governed by laws but by people”.
In its findings and reasons the Tribunal accepted that the applicant was a citizen of the People’s Republic of China. However it did not find him to be “a credible witness on key issues” although it accepted his evidence at the hearing that he was not illiterate. The Tribunal continued:
The Tribunal was not convinced of the applicant’s claims that his wife is a practitioner of Falun Gong and that her activities were reported to the local PSB; that their home was entered by the police who detained both the applicant and his wife and removed some Falun Gong material and electronic equipment.
These claims are not credible because the Tribunal believes that if the applicant’s wife was practicing in private, he provided no credible explanation as to how the police would have been aware of her activities. It does not accept the applicant’s claim that his wife would have had to contact others to obtain Falun Gong materials, even if she practiced in private. The Tribunal noted the evidence given to the RRT by Qiwen Yao the Sydney contact person for the Falun Dafa Association who told a different Tribunal on 12 January 2000 that:
“Most of the Falun Dafa practitioners are participating in group practice outside in the parks voluntarily … but practitioners would also practice in isolation from others if they so desired. There are no rules in Falun Dafa, and there is not activity which is compulsory.”
Furthermore, the Tribunal is not convinced of the applicant’s claims that he was ordered to report regularly to the police for assisting his wife and her group of Falun Gong practitioners; that the constant visits by the police to his business caused disruption and finally, his authority to operate was suspended. This made it impossible for him to continue his business.
The Tribunal addressed the applicant’s claim that he paid bribes to obtain a passport in his own name which contained bogus information concerning his previous occupation. It had regard to the fact that the applicant was able to leave China without difficulty, despite independent country information which indicated that had he been a person of interest to the authorities this would not have been possible. The Tribunal concluded that it was “at a loss to understand how the use of the applicant’s real name but with a bogus occupation would sufficiently disguise his application” as claimed by the applicant. It found that the applicant’s explanation was not convincing. It did not accept his claim and concluded that the applicant was not a person of interest to the Chinese authorities.
Given these conclusions the Tribunal was not satisfied that the applicant was a person owed protection obligations by Australia.

This application

The applicant sought review by application filed in this Court on 28 December 2006. The first ground in the application is that the Tribunal failed to invite him to comment on relevant information as follows:
The applicant claimed that he paid bribes to obtain a passport in his own name but contained bogus information concerning his previous occupation. The Tribunal said that it was “at a loss to understand how the use of the applicant’s real name, but with a bogus occupation, would sufficient disguise his application and the applicant did not convince the Tribunal on this point. For this reason, it does not accept his claim”. The Tribunal failed to invite the applicant to comment how and why the bogus employment and occupation information helped him to leave his home country.
It would appear that this ground involves a contention that the Tribunal failed to comply with s.424A or s.425 of the Migration Act 1958 (Cth). The Tribunal as originally constituted raised the fact that the applicant was able to leave the People’s Republic of China legally on his own passport and independent country information indicating that such persons have been thoroughly vetted by the security authorities in a s.424A letter to which the applicant did not reply. The Tribunal as reconstituted also put to the applicant for comment under s.424A inconsistencies in his evidence in relation to the circumstances in which he obtained his passport and left China. The applicant replied to that letter as set out above. This issue was again raised with the applicant during the second hearing. The Tribunal directly raised the possibility that the applicant’s evidence on this point could give rise to a credibility issue when it stated in response to the applicant’s claim that he did not change his name but only his occupation “The Tribunal is bemused at your reasoning. People change their names and their occupations if they want a new identity. This could raise a credibility issue”.
No failure to comply with s.424A of the Migration Act has been established. If the applicant’s complaint is that independent country information in relation to passport and exit procedures in China should have been put to him such material is within the exception to s.424A(1) in s.424A(3)(a) of the Act. The Tribunal was not obliged to put its reasoning process to the applicant under s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190) at [17] – [18]). It did raise with the applicant pursuant to s.424A possible inconsistencies between the claims in his protection visa application and those made at the first Tribunal hearing. Hence it is not necessary to determine whether the obligation under s.424A extends to inconsistencies (see SZBYR at [17] – [18]). It was not obliged to put to him its lack of satisfaction with his explanation about the use of a bogus occupation or to give him a further opportunity under s.424A to comment on the relevance of such bogus information to his ability to leave China. The applicant gave the information about the bogus occupation to the Tribunal (see s.424A(3)(b)) and its reasoning process in relation to such information is not “information” within s.424A(1).
To the extent that the applicant complains that certain issues were not drawn to his attention during the hearing there is no transcript of the Tribunal hearing (or of the hearing of the Tribunal as originally constituted) before the Court. The only evidence of what occurred in the hearing of the Tribunal as reconstituted is the Tribunal reasons for decision (which contain an extract from the transcript of that hearing). There is nothing in the material before the Court to support a contention that the Tribunal failed to raise these issues with the applicant. To the contrary is the extract from the transcript in the Tribunal decision in which this matter was discussed. The Tribunal commented that it did not understand why the applicant went to such trouble to obtain a passport in his own name but with a false occupation. The applicant’s response was “My wife also came as an accountant which is also false”. The Tribunal also put to the applicant country information in relation to exit procedures and the fact the local PSB would have kept a list of persons of interest. It gave him an opportunity to comment on why he paid a bribe for a passport in his own name. The applicant has not established any failure by the Tribunal to comply with s.425 of the Act.
In oral submissions the applicant contended that he had tried repeatedly to explain the circumstances and the reasons for providing bogus occupation details in connection with his passport application.

He contended that the Tribunal did not let him continue and did not accept his explanation and hence the decision was not fair. Insofar as the applicant seeks to raise allegations of actual or apprehended bias neither is established on the material before the Court in the absence of a transcript (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21], Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507).
Insofar as the applicant took issue with the conduct of the first Tribunal hearing, it is the decision of the Tribunal as reconstituted that is before the Court. In the absence of a transcript there is nothing to suggest that the manner in which the first Tribunal conducted the first Tribunal hearing had any impact on the second Tribunal decision such as to give rise to jurisdictional error.
As submitted for the first respondent, to the extent that the applicant complains that the Tribunal as reconstituted failed to ask certain questions during the hearing, it is for an applicant to satisfy the Tribunal of the truth of his or her claims. The Tribunal is not required to ask specific questions of an applicant as seems to be contended (see Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J. No jurisdictional error is established in the manner contended for under this ground.
The second ground in the application is an unparticularised claim that “The Tribunal rejected the applicant’s credibility on no reasonable ground”. However, as contended for the first respondent, the Tribunal set out its reasons for drawing an adverse credibility inference in relation to the applicant. Findings of credibility are the function of the Tribunal “par excellence” (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). Insofar as the applicant seeks merits review, merits review is not available in this Court (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]).
During the hearing an issue arose as to whether the Tribunal had erred by basing its adverse credibility finding on facts that did not accord with the applicant’s claim, in particular in relation to the nature of his wife’s practice of Falun Gong. Each of the parties was given the opportunity to address this issue in post-hearing submissions.
In his protection visa application the applicant claimed that his wife practised Falun Gong at home quietly and also brought some of her fellow practitioners home and practised Falun Gong in a group.

He claimed that the practice sessions were reported to the police who raided their home and took all the practitioners into detention.
In its reasons for decision the Tribunal recorded that in the first Tribunal hearing the applicant claimed that his wife brought some of her fellow practitioners to their house to practise in a group and also that they practised “at home or on the factory roof. His wife was too scared to practise in public areas”.
It also recorded that in the second Tribunal hearing the applicant told the Tribunal in response to a question as to why the Tribunal should believe he would be arrested “because my wife continues to practise in private. In China even practising in private is illegal”.
The Tribunal found that the applicant’s claims were not credible partly because it believed that if his wife was practising in private “he provided no credible explanation as to how the police would have been aware of her activities”. The Tribunal did not accept that the applicant’s wife would have had to contact others to obtain Falun Gong materials even if she practised in private.
However it is apparent that the Tribunal understood that the applicant’s claim was not simply a claim that his wife always practised alone, but rather that she also practised with a group of people, but in private. This is consistent with the Tribunal’s reference to evidence of the Sydney contact person for the Falun Dafa Association that “Most of the Falun Dafa practitioners are participating in group practice outside in the parks voluntarily … but practitioners would also practice in isolation from others if they so desired. There are no rules in Falun Dafa, and there is not activity which is compulsory” (emphasis added). The fact that the Tribunal understood the applicant’s claims is apparent from the fact that it went on to explain why it was not convinced of his claims that he was ordered to report regularly to the police “for assisting his wife and her group of Falun Gong practitioners”. Further, in outlining the earlier evidence of the applicant, the Tribunal had referred to his claim that his wife was too scared to practise in “public areas”. In light of all these factors it is apparent that the applicant’s claim that his wife “continued to practise in private” distinguished between practise in a private place and practise in a public place.
It has not been established that the Tribunal confused or misconstrued the applicant’s claims. On this basis the Tribunal’s adverse credibility finding was open to it on the material before it for the reasons which it gave. No jurisdictional error is established either on the basis of any failure to have regard to relevant considerations or misunderstanding of the applicant’s claims or on the basis contended for in the application.

In post-hearing submissions the applicant also contended that the Tribunal should have invited him to provide an explanation as to how the police would have become aware of his wife’s activities if she had been practising in private and that it did not do so. However, as discussed above, the Tribunal was not obliged to put its reasoning to the applicant for comment under s.424A. Moreover the relevance of the issue of who would know if the wife’s practice was in private was raised in the part of the Tribunal hearing described in the reasons for decision. Beyond this there is no evidentiary basis for a finding based on what occurred at the Tribunal hearing.
The Tribunal was not obliged to put its concerns about the credibility of either past claims or the impact of claims about future conduct to the applicant under s.424A.
Nor did the Tribunal confuse the applicant’s evidence about what he or his wife would do in the future with what she had previously done when the police discovered her, such that it failed to consider a part of his claims. In having regard to the absence of a credible explanation for how the police would have been aware of the applicant’s wife’s private practice in the past the Tribunal took into account as a possible explanation the applicant’s claims about how people might know of any private practice by his wife in the future. This does not establish a failure to consider part of his claims. Given that the Tribunal did not accept his claims about past activities (including that his wife was a practitioner of Falun Gong) it was open to it to conclude that it was not satisfied that he was a person of interest to the Chinese authorities, implicitly rejecting any claim that his wife would “continue” to practice Falun Gong as he had claimed.
As no jurisdictional error has been established the application should be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 May 2008