SZJCR v Minister for Immigration - [2006] FMCA 1527

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJCR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1527

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal failed to comply with its obligations under s.424A of Migration Act 1958 (Cth) – whether Refugee Review Tribunal relied on inconsistencies in applicant’s oral claims and claims made in primary application in making adverse credit finding against applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(b); 474; pt.8 div.2

Applicant:

SZJCR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2014 of 2006

Judgment of:

Emmett FM

Hearing date:

3 October 2006

Date of last submission:

3 October 2006

Delivered at:

Sydney

Delivered on:

17 October 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms. A. Nesbitt, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2014 of 2006

SZJCR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 July 2006.
The applicant was born on 14 November 1968 and claims to be a citizen of the People’s Republic of China (“the PRC”) and of Falun Gong faith (“the Applicant”).
The Applicant arrived in Australia on 14 December 2005, having legally departed from the PRC on a passport issued in her own name and a visitor’s visa issued on 8 December 2005.
On 22 December 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by the PRC government as she is a Falun Gong practitioner.
On 16 February 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 21 March 2003, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant maintained the claims made in her protection visa application. On 4 July 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 27 July 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The Applicant attended a hearing before the Tribunal at which she gave oral evidence. The Applicant claimed that she left the PRC because she was persecuted as a practitioner of Falun Gong and she would continue to be persecuted if she were to return to the PRC.
The Applicant told the Tribunal that in March 1998 she began to practise Falun Dafa after being introduced by a work colleague.
The Applicant claimed that on 21 September 1999 she participated in a peaceful protest outside government offices in Fuqing and was arrested and detained for three days. The Applicant stated that following her release, she was required to report to the police regularly and was dismissed from her job.
The Applicant told the Tribunal that in January 2000 she escaped to Tibet using a fake name and forged identity card. The Tribunal noted that the Applicant stated she had destroyed documents used by her in Tibet, when she moved to Shanghai in December 2003, after her family told her that police were searching for her and had traced her to Tibet.
The Applicant claimed that on 11 December 2004 she was arrested and sent to a reform labour camp for 6 months. The Applicant stated that she was released on 16 July 2005 and was required to live in Shanghai and report to the police every day.
The Applicant told the Tribunal that she did not practise Falun Gong in Australia because she had not had time and was not familiar with the environment.
The Tribunal noted that the Applicant was unable to answer extremely basic questions about Falun Gong, including naming of the five exercises, and was unable to perform any exercise. She did not know the names of the two books in which the teaching of Master Li are contained. She was unable to identify the symbol of Falun Gong, what a Falun is and was not aware that the two components of being a Falun Gong practitioner involved performing exercises and cultivating the mind by reading the works of Master Li.
The Tribunal noted that the Applicant claimed to have attended a Falun Gong celebration of Master Li’s birthday in Sydney’s Chinatown in May 2006. However, the Tribunal found that the Applicant’s only purpose in attending such an event, if indeed she did, was to obtain photographs of herself holding a placard. The Tribunal noted that the Applicant was unable to tell the Tribunal what was written on the placard that she said she was holding. The Tribunal found that the Applicant attended such an event for the purpose of strengthening her claim to be a refugee and not out of a genuine commitment to Falun Gong.
The Tribunal found the Applicant to be “a highly unsatisfactory witness.” The Tribunal observed that for most of the hearing the Applicant appeared to be deliberately attempting to avoid answering questions. The Tribunal noted that many questions had to be repeated several times before the Applicant gave a meaningful answer and that her responses to many questions involved repeating stock phrases.

The Tribunal noted that many of her claims were inherently implausible and internally contradictory. The Tribunal concluded that the Applicant was not a reliable witness and that she had made up substantial parts of her claims.
The Tribunal concluded that, based on the Applicant’s oral evidence at the hearing, she did not currently practise Falun Gong, nor had she during the six months that she had been in Australia. The Tribunal stated that “Taken together with her inability to provide information at the hearing about basic aspects of Falun Gong, I conclude that the Applicant was not a Falun Gong practitioner in the PRC (emphasis added).” The Tribunal also found that much of the Applicant’s oral evidence appeared to have been made up on the spot. The Tribunal went on to conclude:
“While there were also inconsistencies between the applicant’s oral evidence and the written claims put forward in support of her protection visa application, as is clear from the account of the evidence set out above, I have not relied on these in making adverse findings based on her credibility (emphasis added). The most significant of these is that I do not accept that she was ever a Falun Gong practitioner at all, based on her oral evidence (emphasis added), which provided the first opportunity for these claims to be tested. Having rejected her claim that she was a Falun Gong practitioner, it follows that I do not accept her other associated claims about events that flowed from her claimed identification as a Falun Gong practitioner. In these circumstances it has not been necessary to rely on, or to address the inconsistencies between the claims she has made at different times.”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of an interpreter. The Applicant confirmed that she relied on the grounds identified in her amended application as entitling her to the relief sought in the amended application. The ground is identified as follows:
“1. The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of the [sic] S424A of the Act.
Particulars:
On page 12 of the Decision, the Tribunal writes that “there were numerous other minor inconsistencies.” The Tribunal failed to invite the applicant to comment on such inconsistencies.”
Although the Applicant’s initiating application filed on 27 July 2006 raised other general grounds of review, they were directed towards merits review, which this Court cannot undertake. As stated above, the Applicant confirmed that the ground upon which she relies before this Court is contained in the amended application. For those reasons, I have had no further consideration of the general grounds of review referred to in the application filed on 27 July 2006.
In her amended application, the Applicant complains that the Tribunal breached s.424A of the Act. The breach is alleged to arise out of the Tribunal’s comment that there were numerous minor inconsistencies in the Applicant’s oral evidence to the Tribunal and material contained in her primary application. However, whilst the Tribunal made note of some such inconsistencies, the Tribunal stated explicitly that it had not relied on any of the inconsistencies between the Applicant’s oral evidence and the written claims put forward in support of her protection visa application in making adverse credit findings.
The Tribunal recited in some detail the concerns it had arising out of the deficiencies in the Applicant’s oral evidence about her knowledge of the practice of Falun Gong and her understanding of the tenets and philosophy of Falun Gong. The Tribunal found aspects of her oral evidence implausible or inconsistent with her having been a Falun Gong practitioner. The Tribunal noted in particular that the Applicant had not practised Falun Gong at all during the three years from 2000-2003 when she lived in Tibet. The Tribunal noted her explanation was that she simply had not time. However, the Tribunal also noted that the Applicant did not claim to have been afraid to practise Falun Gong during that period, nor did she express regret or disappointment at not having been able to do so.
The Tribunal also had regard to the Applicant’s evidence that when she was living in Shanghai over 2004 and 2005 she practised occasionally, once every one or two weeks. The Tribunal found that her superficial level of commitment was inconsistent with her claims of being a genuine and committed practitioner of Falun Gong since 1998.

The Tribunal again noted her explanation for her lack of activity was that she had no time.
The Tribunal did not accept the Applicant’s claim of having handed out Falun Gong leaflets causing her arrest and being sent for reform to a labour camp for six months. The Tribunal stated that the reason it did not accept that evidence by the Applicant was that such activity was clearly dangerous and that a person such as the Applicant who had demonstrated so little commitment to Falun Gong would not undertake such a dangerous mission.
Essentially the Tribunal, having regard to her oral evidence, disbelieved the Applicant’s claims of being a Falun Gong practitioner who was persecuted by way of arrest and detention for six months.

The Tribunal made it clear that it did not accept any part of the Applicant’s account of having suffered persecution as a result of her having been identified as a Falun Gong practitioner.
In the circumstances, and particularly in light of the statement by the Tribunal not to have relied on any inconsistencies between the Applicant’s oral evidence and any written claims in support of her protection visa application, it is clear that the Tribunal did not have regard to information not given to the Tribunal by the Applicant as forming part of the Tribunal’s decision for affirming the decision under review. In those circumstances, there can be no breach of s.424A(1) of the Act. The information upon which the Tribunal did make its adverse credit findings, and which was the reason for affirming the decision under review, was evidence given by the Applicant to the Tribunal. Such information is excluded from the requirements of s.424A(1) of the Act by virtue of s.424A(3)(b) of the Act.
Accordingly the ground in the amended application is not made out.
Before this Court, the Applicant stated that the Tribunal made a legal error because she was not given an opportunity to explain that it was not her brother that helped her out, rather it was her brother’s friend.

If the Applicant’s complaint to this Court is that the Tribunal had denied her an opportunity to explain that it was not her brother that assisted her, rather it was his friend, it is clear that the Tribunal understood that evidence by the Applicant. The Tribunal stated that the Applicant had said that her brothers had not spoken to her since the death of her mother in 1999, yet claimed that her brother had assisted her to reduce the reporting requirements imposed on her in 2005.
The Tribunal went on to note that, when the inconsistency was put to her, the Applicant changed her story and stated that her brother had not assisted her, rather, she had kept in touch with her “brother’s contact” who had helped her in 1999. The Tribunal observed that, immediately after noting this explanation, “Much of the applicant’s oral evidence, like this claim, appeared to have been made up on the spot.” It is apparent from those observations by the Tribunal that the Tribunal was aware of her evidence that in fact it was her brother’s contact that had assisted her, rather than her brother. However, in having regard to much of the Applicant’s oral evidence, the Tribunal regarded such a statement as having appeared to have been made up on the spot.
To the extent that the Applicant may be complaining that her evidence before the Tribunal was not properly interpreted by the interpreter, there is no such claim squarely made in the amended application, nor is there any evidence in the nature of a transcript provided by the Applicant to support any such contention. I note that no such claim was made in either of the Applicant’s initiating application or amended application.

Conclusion

The Tribunal made findings of fact for which it provided reasons and which were open to it on the evidence and material before it.
The Tribunal’s decision is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The application is dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 16 October 2006