SZIOZ v Minister for Immigration & Anor
[2007] FMCA 31
•25 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 31 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. VISA – Protection visa. |
Migration Act 1958 (Cth), ss.91X, 424A, 425
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & IndigenousAffairs [2004] FCAFC 10
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
| Applicant: | SZIOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 951 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 November 2006 |
| Date of Last Submission: | 8 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2007 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Ms. Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 951 of 2006
| SZIOZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 11 August 2006 the applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 28 February 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) dated 24 October 2002 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) provides that the Court must not publish the applicant’s name.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision handed down on 9 December 2003 which was quashed by order of this Court dated 25 October 2005 (Court Book (“CB”) p.80).
Background facts
In its decision handed down on 28 February 2006, the Tribunal sets out the following personal details of the applicant which emerged from documents and evidence before it:
a)the applicant used a particular name in the protection visa application and said that he had not been known by any other names. In that application he gave his address in China from 1992 to August 2002 as a location in Jilin City and his occupation as “driver”. He stated that he was a farmer from 1992 to 1993, a driver from November 1993 to May 2001, from June 2001 to July 2002 was unemployed (CB 123-124);
b)in a statutory declaration dated 26 May 2003 the applicant stated that before coming to Australia he had been a lieutenant in the People’s Liberation Army (“PLA”);
c)the applicant took up Falun Gong practice for health reasons after an injury in August 1995 and he continued to practise it notwithstanding its banning by the Chinese government.
The applicant claims to fear persecution in China because of his involvement in Falun Gong.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 18 of the Tribunal’s decision (CB 123-137). However, in significant respects the history and details set out in his protection visa application form are different from the evidence given to the first and second Tribunals. In the hearing before the Tribunal which is the subject of these proceedings, the applicant said that the evidence he gave at the first Tribunal hearing was accurate
(CB 129.8). The facts advanced by the applicant to the Tribunal, based on his evidence to the first Tribunal are, relevantly, in summary:
a)before coming to Australia the applicant was an officer in the PLA and a firm practitioner of Falun Gong. After Falun Gong practitioners participated in a peaceful demonstration in April 1999, PLA soldiers and officers were instructed to resist the influence of Falun Gong, and the applicant was required by a senior officer to give up his practice of Falun Gong. Nevertheless, he continued to practise Falun Gong secretly, and for two years from May 2000 distributed Falun Gong materials using military trucks as no-one checked them;
b)on 6 March, 2002 the applicant was arrested by police and detained at the Public Security Bureau (PSB) for about seven weeks. Subsequently he was suspended from his army position, denounced as a “bad social influence” and had to accept an internal investigation;
c)fearing severe punishment, and possibly the death penalty, the applicant started to think of fleeing China, but because of travel restrictions imposed on PLA officers, had to change his name to the one which appeared on the application for a protection visa. He obtained his passport in a false name and came to Australia with a tourist group on 13 August 2002; and
d)since the applicant’s arrival in Australia the Chinese authorities had become aware of his involvement in Falun Gong and, in particular, the use of the military truck to transfer material, with the result that he was a wanted man and would face persecution were he to return.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found 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’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
The Tribunal:
(a)Accepted that the applicant was a national of the People’s Republic of China (CB 143.6).
(b)Accepted that the applicant had undoubtedly served in the People’s Liberation Army (“PLA”) at some stage, due to compulsory military service, however it seriously doubted that the applicant’s involvement with the PLA was still extant (CB 143.7-143.9).
(c)Found that the letter from Mr. John Deller (President of the Falun Dafa Association NSW Inc.) which was provided by the applicant to the Tribunal at the hearing (CB 89) indicated nothing more than that Mr Deller was somehow aware that the applicant was currently a Falun Gong practitioner (CB 144.5).
(d)Accepted that the applicant had changed his name at some point from [X] to [Y] however did not accept that this was for the reasons claimed (CB 144.6) and further did not accept that the letter from the alleged PLA leader was genuine (CB 144.8).
(e)Did not accept that the applicant would have been able to leave China legally had he been wanted by … the Chinese authorities (CB 145.1).
(f)Found that the applicant’s claimed fear of persecution was inconsistent with his not having applied for asylum in New Zealand, where he had been on a brief holiday before arriving in Australia (CB 145.3).
(g)Was not satisfied that the applicant’s level of knowledge was consistent with his claim to have been a practitioner of Falun Gong for 7 years (CB 145.5).
(h)Found it implausible, and did not accept, that the applicant was a Falun Gong practitioner and activist in China nor that he was suspected of being either by the Chinese authorities (CB 145.6).
(i)Concluded overall that the applicant had engaged in Falun Gong related activities in Australia for the purpose of strengthening his claims as a refugee (CB 146.1).
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)The Tribunal failed to comply with s.424A (1) of the Act.
b)The Tribunal took into account irrelevant information, namely, stale independent country information.
c)The Tribunal failed to comply with s.425 of the Act.
d)The Tribunal made incorrect findings of fact.
In his oral submissions to the Court, the applicant also stated that details of his personal history which were included in his visa application had been inserted by his migration adviser. Amongst this was information concerning whether the applicant left China legally or illegally. Similar issues were raised with the Tribunal (CB 137.8).
Dealing with each of these grounds in turn:
The Tribunal failed to comply with s.424A (1) of the Act
Section 424A provides:
(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.
“Information” has been defined in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476-477:
(i)…
(ii)the word "information" in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; and
(iii)the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; approved [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
The applicant asserts that the Tribunal breached its duty to him under this section of the Act by failing to give him particulars of certain documents and particulars of its thought processes. The documents in respect of which he complains are a letter from John Deller, president of the Falun Dafa Association NSW Inc., a letter from Mr. Jun Chang, and independent country information.
The Tribunal’s decision makes it clear that the documents from Mr. Deller and Mr. Chang were supplied by the applicant to the Tribunal at the hearing (CB 130.1 and 131.3-132.2). These documents fall within the s.424A(3)(b) exception to s.424A(1).
The applicant says that the country information upon which the Tribunal relied (the stringency of China’s border controls on exiting citizens and New Zealand’s adherence to the Convention and its provision of asylum to refugees) should have been provided to him. However, as country information, that falls within the s.424A(3)(a) exception to s.424A(1), and did not need to be served.
As to the other particular of this ground of the application which raises issues of what the Tribunal disbelieved or considered to be implausible, such considerations are not “information” for the purposes of s.424A(1): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 per Moore J at 235 [65] and Allsop J at 259 [206]. That ground was that the Tribunal considered it was highly implausible that, if the applicant had been a soldier for many years, he would have no reliable documentary evidence at all recording the name in which he had performed his military service.
The final particular under this ground relates to the Tribunal’s finding that:
There is no evidence at all that the applicant brought with him to Australia a level of knowledge about Falun Gong practice consistent with his claim to have been a practitioner for seven years, or indeed at all, in China (CB 145.5).
This finding was open to the Tribunal on the material before it. The applicant asserted that he was a Falun Gong follower but did not, according to the Tribunal’s record of the evidence, say what the depth of his knowledge of Falun Gong was when he was in China. Nor was the other material before the Tribunal such as to throw any light on the subject. Moreover, the applicant has not sought to demonstrate to this Court that the Tribunal’s finding misstated the evidence. Further, the fact that there was no evidence of the applicant’s level of knowledge of Falun Gong while in China was a conclusion drawn from the evidence and was not information comprehended by s.424A.
The Tribunal took into account irrelevant information, namely, stale independent country information
The applicant asserts that the independent country information on China was too old to be used as evidence. The Tribunal in its decision discussed a number of documents providing independent country information and expressly relied on a very small number in its findings and reasons. These relate to the existence of compulsory military service in China (CB 143.7) and Chinese exit controls (CB 145.2).
However, it is clear that such independent country information as was relied upon by the Tribunal in reaching its conclusion was in no way central to that conclusion which turns principally on the applicant’s credibility, and on what the Tribunal considered the implausibilities in the case advanced by him. In any event the Tribunal does not commit jurisdictional error when it prefers one body of independent country information over another: VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 per the court at [26].
As the Full Court of the Federal Court has said:
It is clear from its reasons for decision that the Tribunal did rely on “country information” in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].
The Tribunal failed to comply with s.425 of the Act
Section 425 relevantly provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
No evidence has been adduced by the applicant in support of his assertion that the Tribunal failed to provide him with a fair chance to give oral evidence and that on many occasions he was only required to answer the Tribunal’s questions. For instance, no transcript of the hearing has been put before the Court.
As to the first limb of this ground, the “RRT Hearing Record” found at CB 105 suggests that the hearing commenced at 1:15pm on 19 January 2006 and concluded at 4pm. Evidence was given by the applicant and a witness. The detail contained in the Tribunal’s decision indicates that the hearing covered a wide range of issues. Further, the Tribunal’s decision records that at the end of the hearing the applicant confirmed that there were no other matters which he wished to discuss with the Tribunal (CB 136.5).
The Tribunal made incorrect findings of fact
The final ground of the application turns on the assertion that the Tribunal made wrong findings in relation to certain facts which the applicant particularises in his amended application, namely:
a)the applicant was a Falun Gong activist in China and is one in Australia;
b)because of his PLA background, in China he would face more severe punishment than others; and
c)the Chinese government has never stopped persecuting Falun Gong practitioners.
However, a review of the Tribunal’s findings of fact is not available in these proceedings. Unless the Tribunal made an error which goes to a jurisdictional fact, a factual error on its part will not ground judicial review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53]. In this case, the critical finding was that the applicant was not a Falun Gong practitioner in China. The other two particulars pressed by the applicant depend on this finding. If the critical finding was open to the Tribunal then the two subsidiary issues fall away.
The finding that the applicant was not a Falun Gong practitioner was based on a consideration of the evidence placed before the Tribunal. The Tribunal considered that evidence and, having done so, found the applicant’s claim to have been a Falun Gong activist in China to be implausible. This was a finding open to the Tribunal on the evidence and, if it is an error, it is one within jurisdiction; the applicant has not demonstrated that in arriving at this conclusion the Tribunal failed to attend to its statutorily mandated task: SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 at [41].
Incorrect information in protection visa application form
The information in question was specifically put to the applicant by the Tribunal’s letter of 20 January 2006 (CB 107-108; 136-137). The applicant’s response is recorded at CB 137.9. Whether or not the Tribunal accepted or rejected the applicant’s version of events concerning the legality of his departure from China was a matter for it. It has chosen to have regard to the content of the original protection visa application form rather than to the applicant’s repudiation of that form’s content.
It is not this Court’s role to interfere with the Tribunal’s fact finding on this issue.
Conclusion
For the reasons expressed above the applicant has not demonstrated that the Tribunal has committed a reviewable error and consequently the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 25 January 2007
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