SZJBD v Minister for Immigration - [2007] FMCA 1829

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1829

MIGRATION – Review of decision of RRT – where applicant’s allegations not particularised.

Migration Act 1958, ss.424A, 425

SAAP v Minister for Immigration (2005) HCA 24
Minister for Immigration vAl-Shamry (2002) 110 FCR 27
NAGO v Minister for Immigration [2004] FCA 356
Ling v Minister for Immigration [2004] FCA 1069

Applicant:

SZJBD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File number:	SYG 1931 of 2006

Judgment of:

Raphael FM

Hearing date:

17 October 2007

Date of last submission:

17 October 2007

Delivered at:

Sydney

Delivered on:

17 October 2007

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Ms S Kaur-Bains

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.
The name of the First Respondent be amended to Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1931 of 2006

SZJBD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People's Republic of China. She arrived in Australia on 19 May 2003 and applied for a protection (Class XA) visa to the Department of Immigration & Multicultural Affairs on 30 June 2003. Her application was refused by a delegate. The applicant applied to the Refugee Review Tribunal on 5 August 2003 for review of the delegate's decision. A differently constituted Tribunal affirmed the delegate's decision on 12 February 2004. There was a review of that decision by this court and on 14 March 2006 the court set aside the decision by consent and remitted the matter to the Tribunal to be determined according to law. A new Tribunal was appointed and the applicant attended before it on

5 June 2006. On the same day the Tribunal determined to affirm the decision under review and it handed that decision down on 27 June.
The grounds upon which the applicant sought to be accepted as a person to whom Australia owed protection obligations arose out of her association with and practice of Falun Gong. She claimed that she had learned the Falun Gong philosophy from her uncle at the end of 1996 and continued to practise until she left China. In 2000 her uncle had been detained and remained in detention. She stated that whilst her practice of Falun Gong had not been discovered prior to her travel to Australia she felt obliged to leave the country because she believed the authorities were seeking her.
In the course of the Tribunal hearing the applicant was asked a series of questions which have been helpfully set out at [CB 94-96]. They were questions both about the applicant's actual knowledge of the Falun Gong movement and the master Li Hongzhi and her own association with the movement. During the course of the hearing today the applicant told me that she wished the court to hear the tape because, she said, a lot of the questions that were asked by the Tribunal were misleading. I asked her if she could give an example and she gave me one which, so far as I now recall, was when the master left China for the United States. That question is contained in the court book as were some of the other questions that she referred me to. In the end the applicant indicated that as these questions appeared to be available to me from the court book it was not necessary to listen to the tape.
I have looked at the questions. I cannot say that any of them are misleading and I cannot really say that any of them are totally irrelevant although one might be forgiven for questioning whether knowledge of when the master left China for the United States, his date of birth and the date that an arrest warrant was issued for him by the PRC authorities are necessarily relevant in determining whether an applicant is a genuine adherent. The questions were important because it was the applicant's responses, and in particular her failure to provide information to the Tribunal which it believed a reasonably knowledgeable Falun Gong practitioner would be aware of, that caused the Tribunal to have doubts about the applicant's credibility and eventually to determine that she was not a person to whom Australia owed protection obligations because it could not be satisfied that she had ever been involved in Falun Gong.
On 15 November 2006 the applicant filed an amended application in a form which will be familiar to any judicial officer dealing with matters of this nature. It commences with a claim that s.424A was not complied with and quotes from the decision of the High Court in SAAP v Minister for Immigration (2005) HCA 24 and continues with a quotation from Minister for Immigration vAl-Shamry (2002) 110 FCR 27 before alleging that the Tribunal based its findings on information or lack of information contained in the applicant's application for a visa. This may well have been the case in the first application the author of this document prepared but it is not the case here. So far as I can read there is no reference to the application. The Tribunal made its decision based upon the applicant's responses to its questions to her and upon a comparison with her answers about Falun Gong with certain independent country information that is exempted from the provisions of s.424A by virtue of s.424(3)(a).
In the Tribunal’s view:
“The applicant claimed at hearing to have been involved in Falun Gong since 1996, 10 years, and yet her knowledge of almost all aspects of Falun Gong was infinitesimal. The Tribunal asked the applicant if she wished to give an explanation for her lack of knowledge about the organisation she claimed to have been involved in for 10 years. The applicant declined to do so.”
Again, one may take issue with the use of the word "infinitesimal", but certainly there was sufficient failure to identify what might be considered to be matters that would clearly be known to most Falun Gong practitioners who evidence any seriousness about their adherence to justify the Tribunal in failing to reach the state of satisfaction required by the Act.
In addition the Tribunal had concerns about the applicant's credibility due to certain answers she gave concerning her residence which would independently or additionally substantiate the Tribunal's finding of a lack of credibility.
The amended application then alleges bias by the Tribunal.

Ms Kaur-Bains suggests that there being no other particulars of bias provided the applicant's allegations concerning her questioning may be a particular but she equally accepts that this may have been a new allegation.
In NAGO v Minister for Immigration [2004] FCA 356 at [24] Moore J said:
“The Tribunal member was plainly sceptical of the appellant's claims and took a fairly vigorous approach in testing them. However, this falls well short of establishing that the Tribunal approached its consideration of the appellant's claims with a closed mind.”
See also Ling v Minister for Immigration [2004] FCA 1069 at [57] per Branson J.
I am not satisfied that the applicant has established either actual or ostensible bias in the actions of the Tribunal in this case. She has certainly not assisted the court by the provision of any particulars from which a conclusion could be drawn.
Ground 2 of the amended application also suggests that the Tribunal failed to consider the applicant's claims. This is patently not the case from even the most cursory reading of the Tribunal's decision in which the applicant's grounds for seeking Australia's protection were clearly laid out.
Finally, the applicant argued that the Tribunal did not provide her with an adequate opportunity to respond to the substance of the information. To the extent that information was used in this case it was used to indicate the answers to the questions that the applicant was unable to provide fully. It did not require any further response from the applicant.
Finally, before me the applicant claimed that she was badly treated by the interpreter who, she said, was rude to her and treated her as if she was a prisoner. She does not tell the court that she made any complaint about the interpreter until today to anyone. She has not produced any independent evidence of this allegation. To the extent that the bullying might be manifested in the tape recording I would gain nothing from listening to that because I do not understand the Mandarin language and it would definitely require some expert opinion being provided from a person who does understand Mandarin and the nuances of interpretation. I am, therefore, unable to take this complaint of the applicant's any further although I note that it is unlikely to constitute the type of conduct that would allow a court to find that the provisions of s.425 of the Migration Act 1958 (the “Act”) had not been complied with.
As I have been unable to indicate any jurisdictional error into which I believe the Tribunal fell in the manner in which it reached its decision in this case, I am obliged to dismiss the application and to order that the applicant pay the respondent's costs which I assess in the sum of $3,500.00. I order that the name of the First Respondent be amended to Minister for Immigration & Citizenship.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: