SZJDR v Minister for Immigration - [2008] FMCA 510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 510

MIGRATION – RRT decision – Chinese applicant claiming persecution for supporting Falun Gong – disbelieved by Tribunal – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A, 424A(1)

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

Applicant:

SZJDR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2482 of 2007

Judgment of:

Smith FM

Hearing date:

10 April 2008

Delivered at:

Sydney

Delivered on:

10 April 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2482 of 2007

SZJDR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in March 2005, and applied for a protection visa on 22 March 2005. A brief statement attached to the application explained why he sought protection against return to the People’s Republic of China. He claimed that he had become a Falun Gong member and had promoted Falun Gong since 1997. He claimed to have been detained in early 2004, and questioned by police. He also claimed to have been detained at an earlier unspecified date for being involved in a protest meeting commemorating the student movement of 1989, and to have come from a family which had been persecuted during the Cultural Revolution.
A delegate refused the application on 28 April 2005, referring to the lack of detail and substance in the claims, and to the fact that the applicant had been able to travel to Australia on his own Chinese passport.
The applicant’s claims were subsequently presented by the applicant at three hearings of the Refugee Review Tribunal. The first two hearings were conducted by members whose decisions were subsequently set aside by consent orders in this Court, apparently for perceived breaches of s.424A of the Migration Act 1958 (Cth). The consequence of the three attendances was, however, that the applicant’s claims were put by the applicant in significantly inconsistent and differing ways at each of the hearings.
To each of the Tribunal members he denied that he had been a Falun Gong member in China, but he later claimed to have taken up the practice in Australia. He made claims to have assisted the Falun Gong movement in China by printing Falun Gong material before Falun Gong was declared illegal, and at times he suggested that he also did so afterwards. He also gave varying evidence to the Tribunal members about his involvement in a Tiananmen Square commemoration protest demonstration, and about opening a secret room at the back of an internet cafe run by him and a business associate.
The Tribunal member who made the decision which I am currently reviewing held the third hearing attended by the applicant on 30 May 2007. The Tribunal gave a lengthy description of the hearing in its statement of reasons, and its description is confirmed by a transcript. The transcript tendered by the applicant was very confusingly arranged, but the Minister’s solicitor has rearranged it and checked it against the tapes. The Minister’s representatives accept that it accurately transcribes the tapes.
According to the Tribunal, it questioned the applicant about his family history, about his dismissal from his employment at a printing works, and about his claims to have been detained and harassed at various times by the police. In the course of its questioning it put to him some of the inconsistencies between what he was telling that Tribunal member and what he had said on earlier occasions. It also put to him some inconsistencies in the evidence given during the third hearing itself. The applicant was warned about these concerns, and also warned about the effects of s.91R(3) of the Migration Act, which required the Tribunal to disregard the applicant’s conduct in Australia unless it was satisfied that it had not been engaged in for the purpose of strengthening his claim to be a refugee.
In a decision handed down on 10 July 2007, the Tribunal affirmed the delegate’s decision. Its statement of reasons under the heading “Findings and Reasons” indicated that the Tribunal had considered the evidence as a whole, and had attempted “an independent assessment process” regardless of the findings and observations made by the previous members. It expressed the general opinion that it was satisfied that the applicant was not a credible witness, and arrived at the conclusion that he had “fabricated his material claims in order to support his application for a protection visa”.
The Tribunal explained those conclusions by reference to several particular aspects of the applicant’s evidence. It pointed to his vagueness about some matters, the incoherent picture given by him, and clear inconsistencies in some of his statements at the third hearing when compared to his statements on previous occasions. In my opinion, the points made by the Tribunal had cogency, and the material before it well supported its view of the applicant’s credibility.
The Tribunal therefore did not accept any of the particular elements in the applicant’s claims. It said:
Given the adverse credibility finding, the Tribunal does not accept any of the applicant’s claims; the Tribunal does not accept that he or his family suffered during the political movements, or that his parents were sent to a camp in China during the Cultural Revolution, or that he could not enjoy normal life as a child, or that he was looked down upon by people around, or that he was ever involved in any political or Falun Gong activities, or that he ever printed any Falun Gong material, or that he ever attended any Falun Gong gatherings/or secret activities, or that he was ever detained, or accused of organising “people attending illegal gathering for illegal activities”, or that he was dismissed from his workplace for printing any material, or that the Chinese authorities are looking for him, or that he was ever asked to report to the authorities, or that his wife and child are in trouble in China or that they have to report to the authorities, or that he or any member of his family had ever been monitored by the authorities, or that he had an Internet Bar that had been closed, or that he has a debt of about 100,000RMB, or that there is a real chance of any harm occurring to him if he were to return to China.
The applicant has claimed that he had been involved in Falun Gong activities in Australia. Given the adverse credibility finding, the Tribunal has real doubts about this but in any case, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant has engaged in such activities in Australia for the purpose of enhancing his application for a protection visa, and pursuant to s.91R(3)(b), the Tribunal disregards those activities.
In essence and for the stated reasons, the Tribunal is not satisfied that the applicant has been involved in any Falun Gong activities, or that he suffered or would suffer any of the claimed harm.
On the basis of the available information, the Tribunal is not satisfied that the applicant had suffered any Convention‑related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider his case. I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s original application contains unparticularised grounds that “the Tribunal had bias against me and did not make a decision on my application based on evidence and materials”, and that the Tribunal failed to comply with s.424A.
The latter ground is repeated in the applicant’s amended application, without identifying the “information” for the purposes of s.424A(1) which the Tribunal failed to invite comments upon in writing. It is possible that the ground misconceived s.424A(1) because it says: “the Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision”. However, that is a misstatement of the obligation under s.424A, which relates only to “information” which would be the reason or part of the reasons for affirming the decision. The Tribunal is not obliged under s.424A to invite the applicant to comment upon its proposed reasoning processes. In the present case, I cannot identify any “information” of the nature identified in the authorities, and in particular in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, which the Tribunal was obliged to put to the applicant for written comment.
The amended application also asserts that the Tribunal failed to consider claims and was biased. It attaches an argument which refers to the applicant’s belief that, after the remitter of his case, the persons constituting the Tribunal for the second and third decisions did not independently review his claims. In relation to the third Tribunal, it is said:
This time, RRT member was really annoyed again. The first question the member asked me was that I did not want to see you again for the fourth time. Then what he asked was all about the last two hearings, he did not asked any other questions. I was required to answer definitely. Within 3 hours, I was nearly collapsed. I told them it had been a long time, sometimes I could not remember the definite time. I told them that I would not have any hope from RRT. They way they asked me questions were just like Chinese police questioned Falun Gong members. …
The Tribunal’s reference to not wanting the matter to come back for a fourth time appears to be a reference to a passage found at pages 11 to 12 of the transcript. However, this does not suggest that the Tribunal was inclined to adopt or follow the conclusions of the previous members, but rather that it was aware that it was obliged to make up its own mind about the credibility of his evidence. I do not consider that this passage provides any support for a claim of actual or apprehended bias under the tests referred to in the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 and Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
Nor can I find any suggestion of actual or apprehended bias in the Tribunal’s putting to the applicant various inconsistencies between the evidence he told it and what he had said at previous hearings. I also do not accept that the applicant was prevented from giving this Tribunal a full account of the reasons why he claimed to fear persecution in China based on his past history. In my opinion, the transcript shows to the contrary. I am unable to detect any particular area of unfairness in the questioning of the Tribunal, particularly since the applicant has not referred me to any such passage. Considering all the material before me, I am not satisfied that the applicant has made out his ground of apprehended or actual bias.
Nor am I satisfied that there is any claim which was maintained by the applicant to the last Tribunal, and which it did not address. No particular deficiency has been pointed to by the applicant. It is correct that the Tribunal did not discuss the fine details of every element in the various histories previously presented to earlier Tribunals, but the extent to which those histories were still being maintained would have been very unclear to this Tribunal member. In my opinion, the present Tribunal’s reasoning and its findings sufficiently addressed all the elements of the applicant’s history which he appeared to be pressing, and which might appear to survive the inconsistencies of his evidence. I am therefore not satisfied that there was any element of his claims which were left outstanding and was not addressed by this Tribunal.
Since I am not satisfied that the Tribunal’s decision is affected by jurisdictional error, I must dismiss the present application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 23 April 2008