SZILK v Minister for Immigration
[2006] FMCA 1318
•30 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1318 |
| MIGRATION – RRT decision – Chinese applicant – withdrew claimed fears as Falun Gong practitioner and claimed fear as Tien Tao follower – disbelieved by Tribunal – no jurisdictional error. |
Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b), 422B, 424A, 424A(1), 424A(3)(a), 424A(3)(b), 425, 474(1), 476, 476(1)
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant M47/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 176
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
SZECG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 733
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
| Applicant: | SZILK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG653 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 30 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A McInerney |
| 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 $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG653 of 2006
| SZILK |
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 2 March 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 11 January 2006 and handed down on 31 January 2006. The Tribunal affirmed a decision of a delegate made on 18 August 2005 which refused to grant a protection visa to the applicant.
Under s.476(1) the Court has “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 send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to reside in Australia.
The applicant arrived in Australia on a three months visitor’s visa in April 2005. On 27 May 2005 an application for a protection visa was presented by a registered migration agent, Ms Linda Liu, in the name and with the personal details of a person identified in the passport with which the applicant entered Australia. Attached to the application was a brief typed statement explaining why the applicant sought protection in Australia against return to her country of nationality, the People’s Republic of China.
The statement claimed that the applicant was “a member of Falungong” and that “before I left China, I have no freedom to practice Falungong”. The applicant claimed that “while I was in China, I was forced to attend reeducation classes and forced to sign a grantee not to practice Falungong”. She claimed to have been kept in a dark room and mistreated and as a result lost a baby. She claimed:
After I come to Australia, I practice Falungong every day. Falungong helps me to recover my health. Falungong members in Australia give me a lot of help. I can not go back to China, so I seek Australian government’s protection.
No details of these claims were presented to the Department, and no corroborative documents were presented.
A delegate refused the application on 18 August 2005, and the applicant’s migration agent lodged an application for review by the Tribunal on 12 September 2005. This document, like her protection visa application, was signed at various places by the applicant. It maintained the applicant’s name shown in her passport. No further supporting material was presented. The application merely said:
I do not agree with DIMIA’s decision because DIMIA thought that Chinese government doesn’t persecute me.
The Tribunal sent an invitation to the applicant and her agent to attend a hearing on 17 November 2005. It only received confirmation that the applicant wished to attend on the day before the hearing, and was therefore obliged to reschedule a hearing so as to organise an interpreter. A new hearing date was then offered and accepted by the applicant’s agent. That hearing was appointed for 19 December 2005.
As the Tribunal explained in its statement of reasons, shortly before the hearing it received communications from the applicant’s agent Ms Liu, from the applicant, and from a new agent, indicating a change of agent. The applicant appointed Mr Harry Huang of Pricilla International Co Pty Ltd to act for her.
Mr Huang sent to the Tribunal a statutory declaration sworn on 12 December 2005 in which the applicant completely changed the basis for seeking protection in Australia. She disclaimed the identity shown in her passport and in her applications to the Department and the Tribunal, and claimed a different identity. The applicant claimed that she had encountered persecution by the Chinese authorities as a result of joining “a new party” which was studying a religion, Tien Tao. She claimed to have attended small gatherings organised by the person who introduced her to this group.
She claimed that at the end of February 2005 she had been questioned about this by policemen from the Public Security Bureau (“PSB”). She was beaten and interrogated, and “the PSB denounced me to get involved in illegal religious organization and activities, and asked me to confess my activities; and particularly where [the leader of the group] had gone”. She claimed to have been released by agreeing to assist the police to catch that person. She claimed to have become scared and to have “escaped” to another city in early April 2005. She claimed as a result of the police inquiring with her families “to expose where I had hide” she “had to agree to use a passport, which was actually purchased by my families, to escape from China”. She said:
In Australia, I continually participate in religious activities of Tien‑Tao. I can not return to China, because I could not give up my religious belief in Tien‑Tao, which has been banned by the PRC authorities on one hand; and on the other hand, the PSB is still looking for me.
The applicant then attended the hearing accompanied by her new agent. A description of the hearing is given in the Tribunal’s reasons, but a transcript is not in evidence. Because the applicant’s original application and her amended application made criticisms of some aspects of the hearing, I drew the applicant’s attention to the possible need for her to put into evidence a transcript of the hearing if she wished me to find in favour of these grounds. I did this both at the first court date and at a show cause hearing. However, that evidence has not been tendered.
According to the Tribunal, the applicant explained the change in her claims by blaming her original agent for suggesting that the visa application should be made in a false name, and for suggesting that she should present herself as a Falun Gong practitioner. She told the Tribunal that she did try to practise Falun Gong in Australia, but was unable to accept that practice. She claimed that she had always been an adherent of Tien Tao. She claimed that she had told her first adviser “the whole truth about herself, except in relation to Tien Tao”. She claimed she had not wanted “to use Tien Tao as a vehicle for her application because she considered it disrespectful to God”, but maintained a claim that she had practised that religion “consistently since December 2004”.
The Tribunal asked the applicant what her Tien Tao activities had been since arrival in Australia. The applicant said that she had attended a family praying hall, and described her practices and some aspects of the religion. She described to the Tribunal her claimed overnight detention in China, and maintained the history given in the statutory declaration. The Tribunal said:
I asked her if she had told the Tien Tao adherents in Australia about the crackdown in [her province]. She said she had not. As to why not, she merely said that they had not told them about herself or about the crackdown because they were busy expanding the praying hall and she did not want to trouble them about her personal issues.
The Tribunal said that it put to her that it had difficulty believing that she would not have mentioned a recent crackdown to anyone from Tien Tao after her arrival in Australia. The Tribunal also questioned her about whether she had attempted to make contact with the leader of her group whom she claimed to be now in Hong Kong. She said she had not.
At the end of the hearing the Tribunal said:
I asked her if she wished to tell the Tribunal anything further. She responded that she had been very scared so was not truthful at first. I told her I would have to consider all the possible reasons for that failure to be truthful. She reiterated that she had not wanted to show disrespect to Tien Tao by using it to apply for a protection visa. She could not go back to the PRC as she would not be able to keep faith in Tien Tao and so would not be able to go to heaven.
Mr Huang stated that he did not wish to make any oral submission to the Tribunal. It was agreed that I would make my decision after 5 January and would thus give the applicant time to obtain a letter from Tien Tao in Australia concerning her involvement with them.
The applicant before me today has claimed to have been misled into thinking that the Tribunal had accepted her evidence, and complained that the Tribunal did not put its concerns to her. However, I can find no support for this in the Tribunal’s description of the hearing. Indeed, it suggests to me that it should have been apparent to her and her agent that the Tribunal might not believe what she was telling it. Certainly in the absence of a transcript I cannot conclude otherwise. In any event, as I shall explain below, these complaints cannot provide the basis of jurisdictional error which would invalidate the Tribunal’s decision.
Subsequent to the hearing, the applicant submitted an original PRC identity card in the name of the identity she now claims. Photographs of the applicant participating in religious ceremonies were also presented. She also submitted a statutory declaration by a resident of Australia who deposed to being a member of a congregation of Tien Tao at Campsie. The declaration said:
I am the indicator of [the applicant] who was baptised at [the congregation] on 12 August 2005. Since then, she has participated in weekly public worships on a regular basis.
The statutory declaration was presented to the Tribunal under cover of a letter from her agent which said:
We are acting as the Migration Agent and instructed to provide further documentary evidences in relation to some issues arising from the Tribunal’s hearing dated on 19 December 2005 as follows:-
oStatutory Declaration from [the deponent] who is a believer of Tien Tao and the indicator of the applicant.
oPhotos taken at [the congregation].
oOriginal copy of the applicant’s Chinese ID Card.
In its statement of reasons the Tribunal referred to the evidence taken at the hearing, and to country information concerning the situation of the “Hsien‑Tien Tao (way of former Heaven)” sect. It noted that this had its origins in 1930 and was “heavily suppressed in China during the 1950s” and subsequently. The sect operated in secret, and there was little general information about its current activities and treatment in China.
Under the heading “Findings and Reasons”, the Tribunal said: “I am unable to establish her identity with confidence”. The Tribunal referred to the two identities presented by the applicant, and said that it was unable to rely on either of the documents presented “as conclusive evidence of her true identity”. However, I do not consider that these doubts about the applicant’s identity played any material part in the Tribunal’s reasoning.
The Tribunal did accept the withdrawal of the applicant’s claims to fear persecution as a practitioner of Falun Gong, and found that she did not have such a fear.
In relation to Tien Tao, the Tribunal said:
It is possible, and I am prepared to accept, that she has participated in Tien Tao practice in Australia. Her knowledge about Tien Tao’s history and practice was consistent with having done so. However, I do not accept that she was a Tien Tao practitioner in China, nor that she was harassed or harmed by the authorities because of a perception that she was one, for the following reasons:
The Tribunal then identified four reasons for this conclusion. First, the Tribunal thought that the applicant’s own admissions to the Tribunal that she had not mentioned her claims to her first agent, and that she had not given truthful biographical details to the Department, did not “reflect well on her general frankness and truthfulness”.
Secondly, the Tribunal thought that her explanation for not having mentioned a crackdown on practitioners in Fujian to any of the Tien Tao practitioners with whom she was involved in Australia “lacked cogency”, and it explained why it thought that.
Thirdly, the Tribunal said:
… [the deponent’s] Statutory Declaration does not state that the applicant was a practitioner of Tien Tao in China, and states only that the applicant was baptised in August 2005 and “since then” had participated in regular weekly worship. In other words, apart from the applicant’s own assertions, there remains no evidence that she was a practitioner in China, nor that she became involved with Tien Tao in any way until some four months after her arrival in Australia.
Fourthly, the Tribunal thought that the applicant’s explanation for not contacting the leader of her claimed group in Hong Kong was vague and not plausible. The Tribunal noted that there was no evidence apart from her assertion that a Tien Tao practitioner of that name exists at all, and it said: “I am not satisfied that he does”.
The Tribunal addressed the applicant’s evidence that she had participated in Tien Tao in Australia since August 2005, and accepted this evidence from her and the deponent of the statutory declaration. The Tribunal then referred to s.91R(3) of the Migration Act. This section requires a Tribunal to disregard conduct engaged in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal referred to some debate about the meaning of this provision, and answered its uncertainties with a positive finding:
I consider it likely that the applicant’s conduct in Australia in relation to Tien Tao was engaged in solely for the purpose of strengthening her claim to be a refugee within the meaning of the Refugees Convention. She has not satisfied me to the contrary. Therefore I have disregarded that conduct in determining whether she has a well‑founded fear of Convention‑related persecution in the PRC.
I have carefully considered the reasoning followed by the Tribunal, and consider that it was open to it on the material before it and that its decision was not affected by jurisdictional error.
The applicant has had a referral to free legal advice, but has relied upon an amended application prepared by an undisclosed helper, and today read a statement prepared by that helper. It presents some arguments of a legal nature, and others which in my opinion argue only with the merits of the Tribunal’s reasoning. It duplicated, with rearrangement, the arguments presented in the original application. The statement read by the applicant to me today also repeated these arguments. I shall not set out the whole of the amended application, but shall attempt to identify the arguments which might appear to raise jurisdictional errors.
The first ground is:
1.The Tribunal misunderstood my claim, ignored important issues, and made mistakes in relation to important findings of fact.
There are then particulars a. to h.
Of these, particulars a. to c. criticise the Tribunal’s finding of uncertainty about the applicant’s true identity. It is suggested that this could have been investigated by the Tribunal including “through Australian overseas post”. However, the Tribunal was under no obligation to investigate the material presented by the applicant by making further inquiries (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], and WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]). Moreover, as I have indicated above, I do not consider that the Tribunal’s doubts about the applicant’s identity played a material part in its decision.
Particulars d. to h. criticise the Tribunal’s reasoning in relation to its four reasons for not accepting that the applicant was a Tien Tao practitioner who was persecuted in China. I have considered all those criticisms, but I do not consider they present more than arguments which might have favoured a different outcome for the Tribunal’s factual assessment. I am not persuaded that the Tribunal did not consider any claim made by the applicant or any pertinent fact when arriving at its assessment. I consider that its assessment was rational and open to it on the evidence. The fact that other Tribunals might have made different assessments cannot provide in itself a ground for setting aside this Tribunal’s decision.
The second ground of the amended application is:
2.The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
A variety of particulars are given in relation to this argument. Essentially, three matters are contended not to have been put to the applicant in writing with an invitation for written comment, in breach of s.424A(1).
The first was: “relevant independent country information regarding to…‘the incidence of official corruption and fraudulent official documentation is so widespread in China’…”. However, this was general information covered by the exclusion in s.424A(3)(a) of the s.424A(1) obligation.
The second matter was: “relevant information provided by [the statutory declaration by the applicant’s “indicator” in Australia] after the Tribunal’s hearing”. Although it is not spelled out in the amended application and the applicant’s submissions, I have treated this as a contention that the Tribunal relied adversely upon information taken from that statutory declaration as a reason for not accepting the applicant’s claims.
The information relating to the statutory declaration which was identified by the Tribunal was that it “does not state that the applicant was a practitioner of Tien Tao in China”. I consider that this information was sourced in the statutory declaration, and that it was used adversely as part of the Tribunal’s reasoning. However, in my opinion the whole of that statutory declaration, including the limits of its contents, was information which the applicant “gave for the purpose of the application” within the exclusion of s.424A(3)(b).
This is because it was, as I have described above, presented by the applicant’s agent to the Tribunal in support of her application for review. I do not consider that Federal Court authorities, which are somewhat discordant, in relation to the application of s.424A(3)(b) to evidence orally given by an applicant’s witness appearing at a Tribunal hearing have relevance in the present situation (compare Young J’s discussion in Applicant M47/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 176 with Branson J’s discussion in SZECG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 733).
The third matter, which the applicant complains was not the subject of a s.424A(1) notice, was the Tribunal’s failure to put to the applicant its particular concerns which eventually caused it to decline to accept the truth of her claims to have been a Tien Tao practitioner in China, including the Tribunal’s reliance on the absence of any corroborative evidence that the applicant had been a practitioner of Tien Tao prior to August 2005.
However, I accept the submissions of counsel for the Minister that the Tribunal was under no obligation under s.424A(1) to raise such concerns with an applicant either during the hearing or by way of a written request under s.424A. The arguments made by the applicant’s helper misunderstand the limited scope of s.424A, which is confined to allowing an opportunity to answer adverse information. It does not require the Tribunal to canvass with or warn an applicant as to its reasoning processes prior to making its decision.
Under common law principles, the Tribunal would also normally not be under any such obligation (c.f. Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591‑592, cited in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [22]). In a case such as the present, which is subject to the exclusion of common law procedural fairness provided by s.422B, it is now clear that the Tribunal’s duties in relation to putting matters to an applicant are confined to its duties under s.424A.
For the above reason I do not think that any of the arguments under Ground 2 are made out.
The third ground in the amended application is:
3.The Tribunal has failed to comply with its obligations under s.425 of the Act.
The applicant’s argument, as I understand it, is that the Tribunal was in breach of its obligation to provide her with the opportunity “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. This occurred since, although the Tribunal “discussed my claims by asking me a number of questions at the hearing; but it refused to make me clear what the issues were in relation to my application”. The applicant argued forcefully to me that she thought her evidence was accepted by the Tribunal, and therefore she did not anticipate the reasoning of the Tribunal for rejecting her claims.
As I have indicated above, I am far from satisfied that the applicant could have been misled by anything said by the Tribunal into thinking that her claim was succeeding. On the Tribunal’s description of the end of the hearing, it expressly told her and her agent “I would have to consider all the possible reasons for that failure to be truthful”, and I think it must have been apparent to the applicant that she had difficulties being accepted as a truthful person, arising from her change of claims.
However, for the reasons I have given above, I do not consider that the Tribunal was under any obligation under s.425 or any other provision of the Migration Act or legal duty to air its thinking about the decision which it eventually made. I am not satisfied that the Tribunal failed to afford the opportunity which is required by s.425, under authorities such as Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1, and NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77).
After considering all the above points and all the arguments presented by the applicant in her amended application and submission read to me today, I am not persuaded that the Tribunal’s decision was affected by jurisdictional error. It was therefore a privative clause decision within s.474(1), and I must dismiss the application.
I certify that the preceding forty‑nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 18 September 2006
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