SZIMD v Minister for Immigration
[2007] FMCA 445
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIMD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 445 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – application of s.424A, Migration Act – adequacy of Tribunal’s reasons – visa – protection visa. |
| Migration Act 1958, ss.91X, 424A |
| VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 Applicant WAEE v Minster for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZIMD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 709 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 March 2007 |
| Date of Last Submission: | 6 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 709 of 2006
| SZIMD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 19 June 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 20 January 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) on 22 September 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The Applicant is a 33 year old married man from Hebei Province. He lists eight years of education. He states that he was unemployed prior to his arrival in Australia. (Court Book (“CB”) page 64)
The applicant claims to have been persecuted and to fear future persecution in China because of his membership of Falun Gong.
The applicant claims that he belongs to Falun Gong and was detained several times and tortured. He claims that:
During the five times when I was detained, I was beaten severely, my legs were badly hurt and I became mentally sick. (CB 64)
At the hearing before the Tribunal the applicant also said:
a)although he had received a visa to go to Singapore he had not in fact travelled there because he was on the way to the airport to go to Singapore when he was stopped by a police car and beaten. This happened in July 2004;
b)the applicant said that his passport cost 50,000 RMBs and that his visa to Australia cost a great deal of money, it having been obtained through a friend of a friend;
c)the applicant also paid bribes at the airport so he could leave China. He obtained the money he needed by selling clothes and by borrowing;
d)the applicant says he practises Falun Gong in Australia every morning with friends although he did not have any contact with the Falun Dafa Association in Australia;
e)the applicant said that he was first tortured in 1999, then on three occasions in 2003 and once more in 2004. In 1999 he was detained for one month and in 2003 he was detained for three months, the other three detentions lasting around two months or one month;
f)the applicant practised Falun Gong for his health and although he did have nerve problems following his imprisonment his practice of Falun Gong was good for his health.
The Tribunal summarised the applicant’s claims as follows:
The Applicant claims that he has practised Falun Gong since 1998 and that because of his involvement in Falun Gong he was arrested and detained on five different occasions, the first time in 1999 and then three times in 2003 and a further occasion in 2004. He claims that he was subject to torture when detained. He claims to practise Falun Gong here in Australia in a park at Campsie. He fears harm from the authorities of China by reason of his participation in Falun Gong. (CB 67)
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal did not accept that the applicant was a Falun Gong practitioner and was subject to arrest and torture whilst in China. The Tribunal’s decision was based on the following findings and reasons:
The Applicant has provided no written evidence to the Tribunal and his protection visa application contains minimal detail. The only substantive evidence before the Tribunal is the Applicant’s oral evidence. In his giving of oral evidence the Tribunal did not find the Applicant to be a credible witness on key aspects of his claims.
Whilst sensitive to the need to exercise caution in making adverse credibility findings in the refugee determination context the Tribunal nonetheless found the Applicant’s oral evidence to be unconvincing in that it was highly generalised and lacking the specificity that one would expect from someone claiming to recount claimed lived experiences and convictions. (CB 67-68)
The Tribunal found that:
a)the applicant was unable to elaborate in any detail whatsoever the belief system which underpins Falun Gong despite claiming to have been involved in Falun Gong since 1998;
b)the applicant was hesitant and unforthcoming in providing details as to the dates and lengths of his claimed arrests;
c)in respect of his claimed torture experiences the applicant was vague about the injuries he said he had suffered saying variously that he had seen doctors, but not in Australia, and that the Falun Gong exercises had assisted his recovery from his injuries.
The Tribunal concluded:
The paucity of the Applicant’s evidence in the ways outlined above, leads the Tribunal to find that the Applicant is not in genuine fear of persecution nor is there a real chance of persecution on his return to China by reason of a claimed involvement in Falun Gong. (CB 68)
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal was in breach of its obligations under s.424A of the Act in that it:
i)based its findings on the information, or the lack of information, contained in the applicant’s visa application; but
ii)failed to give the applicant particulars of this information, to explain why the information was relevant, or to provide the applicant an opportunity to comment on it.
At the hearing, the applicant also submitted that the Tribunal had failed to give sufficient reasons for refusing his application.
Dealing with these grounds in turn:
Breach of s.424A of the Act
Section 424A provides, relevantly:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
It is therefore necessary to identify the information that was the reason or part of the reason for the Tribunal affirming the delegate’s decision and the extent to which, if any, it relied on information in respect of which it had an obligation under s.424A(1).
This claim is one in which very little information was provided by the applicant at any stage prior to the Tribunal hearing. This was commented on by the Tribunal at CB 67 where it observed that the protection visa application form contained minimal detail and that the applicant had provided no written evidence to the Tribunal. This led the Tribunal to state:
The only substantive evidence before the Tribunal is the applicant’s oral evidence. (CB 67)
The Tribunal determined the application based upon its assessment of the applicant’s credibility in the giving of that evidence concluding:
In his giving of oral evidence the Tribunal did not find the applicant to be a credible witness on key aspects of his claims. (CB 67-68)
The Tribunal made it clear that it was the applicant’s oral evidence which was unconvincing, because of its lack of specificity and highly generalised nature. The Tribunal’s conclusion on the applicant’s claim did not rely on information in respect of which it may have had a s.424A(1) obligation, the Tribunal making it clear that it was the evidence given by the applicant at the Tribunal which was the information it used when affirming the decision of the delegate. This information falls within the exception contained within s.424A(3)(b).
Further, the Tribunal had no obligation under s.424A to disclose its thought processes in respect of information provided at the hearing. The word “information” in s.424A(1) does not encompass the Tribunal’s subjective appraisals, thought-processes or determinations: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 [24] per Finn and Stone JJ.
Failure to give sufficient reasons
The reasons given by the Tribunal which are quoted or paraphrased in paragraphs 8, 9 and 10 above adequately set out the basis for its decision, which was a decision open to it on the evidence. It is not necessary that the Tribunal refer in its decision to every piece of evidence and every contention made by an applicant: Applicant WAEE v Minster for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46]. Moreover, it should be observed that the slight volume of the information provided by the applicant to the Tribunal in support of his claim to be a refugee must necessarily have had an impact on the length of the Tribunal’s reasons for its decision in this matter. In the circumstances, the reasons were adequate and they explain the basis upon which the Tribunal arrived at its conclusion. Consequently, this ground is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 5 April 2007
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