SZJDP v Minister for Immigration

[2007] FMCA 1782

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1782

MIGRATION – Review of RRT decision – whether apprehended bias – whether s.424(1) relevant – whether s.420(1) breached.

Migration Act 1958 ss.420(1), 424(1).

NAJO v Minister for Immigration [2006] FCA 356
Lin v Minister for Immigration [2004] FCA 1069
Re RRT; Ex parte H [2001] 1179 ALR 425

Applicant: SZJDP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2142 of 2006

Judgment of: Raphael FM

Hearing date: 10 October 2007

Date of last submission: 10 October 2007

Delivered at: Sydney

Delivered on: 10 October 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. The applicant to pay the First Respondent’s costs assessed in the sum of $3,000.00.

3. The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2142 of 2006

SZJDP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 30 November 2005. On 13 January 2006 he applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa. On 16 March 2006 the delegate of the Minister refused to grant a protection visa. On 13 April 2006, the applicant applied for a review of that decision from the Refugee Review Tribunal. The Refugee Review Tribunal invited the applicant to a hearing which he attended. On 15 June 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 6 July 2006.

2. The applicant's claims to be a person to whom Australia owes protection obligations are found in a personal statement: [CB50]-[52]. In that statement the applicant claimed that he was a follower of the Falun Gong movement and also indicated that he was not simpatico with the policy of the current government. The applicant stated [CB28] that he started practising Falun Gong in 2000. He found it was of assistance to his health.

3. He stated that on 3 January 2004 a group of local police abducted him and a colleague at work without any reasons. He was forced to write a statement that he would not join Falun Gong activities or practise Falun Gong but he refused to do that. He was locked in a small room and given "less food and water". He was re-educated and brainwashed. His family paid a penalty of $10,000 to obtain his release. He was threatened that if he continued to practise Falun Gong he would be sent to a labour camp. He came to the view that he could not give up Falun Gong and so utilised the opportunity to come to Australia to seek asylum.

4. When the matter was before the Tribunal he was questioned about when he joined Falun Gong and appears to have revised his joining date to late 1999. He told the Tribunal that he attended meetings "everywhere" and that included public parks and buildings. The Tribunal reminded him that Falun Gong had become proscribed by the Chinese government in mid-1999 and in those circumstances it would have been impossible for him to have joined public demonstrations of Falun Gong exercises [CB 67]:

   “He responded [to] that by saying that there are still a lot of people who practise Falun Gung in F city today.” 

   The Tribunal then asked him why he has any difficulty returning to China in view of his own admission that there are people everywhere practising the exercises. He said the people practise in small groups and that the officials do not know and when the officials discover them they would normally be in trouble. The Tribunal then questioned the applicant about his practise of Falun Gong in China and whether he had continued to practise since his arrival in Australia. He responded that he had only practised slightly in this country.

5. The Tribunal's findings and reasons commence at [CB67] and are concise. It concluded that it was not plausible that the applicant could have joined others in doing Falun Gong exercises in 1999 as he had claimed. It noted that he had only a slight association with Falun Gong in Australia and found that his reasons for this, that he had been looking for work and was not familiar with Sydney, were not supportive of claims of someone who said that he had left his country to take refuge in Australia so that he could practice Falun Gong. The Tribunal noted that the applicant was unable to provide any corroborative evidence of Falun Gong membership. The Tribunal concluded that because it doubted that the applicant really was a member of Falun Gong it could not accept that he had been arrested for that membership or detained as he had given evidence. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution on his return to China for those reasons.

6. The applicant provided the court with an application filed on 4 August 2006 indicating that he sought review because the Tribunal was not satisfied that he was a person to whom Australia owed protection obligations and:

   “Because I cannot provide any evidence to support my application.”

   He was ordered to file an amended application by 15 December 2006 but this does not seem to have occurred. Before me today the applicant said that he thought the problem was that the Tribunal did not believe him. It did not believe that he was detained. He said that the tone in which the questions had been asked of him was very similar to the way in which officials had spoken to him in China and that made him very nervous so that his answers did not make sense.

7. In NAJO v Minister for Immigration [2006] FCA 356, Moore J said at [24]:

   “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 of a closed mind.”

8. In Ling v Minister for Immigration [2004] FCA 1069, Branson J said at [57]:

   “Although departure from the ordinary standards of courtesy is always regrettable, a fair-minded person does not equate mere discourtesy with bias.” 

9. Other cases have held that questioning, even vigorous questioning, is also not necessarily indicative of bias. In Re RRT; Ex parte H [2001] 1179 ALR 425 at [30] the High Court stated:

   “Where, as in the present case, credibility is an issue the person conducting inquisitorial proceedings will necessarily have to test the evidence presented often vigorously.  Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which brings his or her account into question.” 

10. These are general principles. I am unable to be more specific in relation to the applicant's case because he has provided me with no evidence about the questioning, which could have been done in the form of a transcript or even the tape recording. In the absence of such evidence I must decline to accept this submission.

11. The next point raised by the applicant was that the Tribunal had read something from the web site and books which was different from his experience. As Ms Nanson says in her helpful submissions, there is no reference to anything that the Tribunal read or saw in the decision. To the extent that the Tribunal may have utilised, in making its decision, its general knowledge about the activities of Falun Gong practitioners and the Chinese PSB it is perfectly entitled to do that. No jurisdictional error will arise.

12. The applicant also said that he was just a small person in the Falun Gong and they did not pay too much attention to him. I am afraid that that statement is not of particular assistance to me because I am not clear who "they" are but assuming that it is the Tribunal I do not think that the reasons for decision indicate that any matter raised by the applicant was overlooked.

13. Finally, the applicant said that he did not think that the Tribunal followed s.424(1) which indicated that the case must be assessed fairly and subjectively. For the benefit of the applicant and the person who wrote the submission which he gave I would point that s.424(1) actually states:

    “In conducting the review the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”

    This does not seem to bear on the matter raised by the applicant. He may on the other hand have been referring to s.420(1) which states:

    “The Tribunal in carrying out its functions under this Act is to pursue the objective of providing a mechanism of review that is fair, just, economical, in full and quick.”

    I see nothing in the Tribunal's decision, which as I have said, is commendably concise, that offends against that policy.

14. I am unable to find any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it reached this particular decision. I dismiss the application. I order that the applicant pay the first respondent's costs which I assess in the sum of $3000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  26 October 2007