SZJFL v Minister for Immigration
[2007] FMCA 421
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 421 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether the Refugee Review Tribunal decision is affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3)(a); 474 ;pt.8 div.2 |
| Applicant: | SZJFL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2273 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 March 2007 |
| Date of last submission: | 20 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2007 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Mr B. O'Donnell |
| Solicitors for the Respondent: | Ms E. Warner Knight, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2273 of 2006
| SZJFL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 14 July 2006 and handed down on 3 August 2006.
The applicant arrived in Australia on 27 January 2006, having legally departed on a passport issued in her own name and a visa issued on 21 February 2001.
On 9 February 2006, the applicant lodged an application for a protection visa with the then Department of Immigration Multicultural and Indigenous Affairs (“the Department”).
The applicant's protection visa application was supported by a statement signed by the applicant and dated 27 January 2006, in which she claimed she is a Falun Gong member and was involved in Falun Gong activities full time from 1998 to 2004. The applicant claimed that in 1999 after Falun Gong became outlawed she assisted Falun Gong members to have underground activities and became a leader of Falun Gong.
The applicant claimed that she was paid for her activities and for her living expenses. The applicant stated that, at the end of 2004, she lost contact with her leader because he was sentenced to imprisonment, following which police came to her home and took her away for investigation. She stated that she was detained and ultimately released on condition that she would not continue to work for Falun Gong. She stated that thereafter she commenced work with a company as financial controller and that she promoted Falun Gong to staff in that company. The applicant claimed that, in October 2005, she was informed by the Falun Gong Association that she had come to the attention of police, as a result of which she sought assistance to leave China. The applicant stated that she had received information from her associates in China that, were she to return to China, she would be prosecuted because of her role in the Falun Gong Association in China.
On 28 February 2006, a delegate of the first respondent 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 and notified the applicant of its decision on 2 March 2006.
On 3 April 2006, the applicant lodged an application for review of that decision. In her application for review the applicant did not provide any further material, however, she attended a hearing before the Refugee Review Tribunal (“the Tribunal”) on 16 May 2006 at which she gave evidence.
The Tribunal noted the applicant's claims in her protection visa application. The Tribunal then noted with particularity the claims made orally by the applicant at the hearing. The Tribunal noted its discussion with the applicant about various aspects of her evidence and where her evidence appeared to be either internally inconsistent or inconsistent with claims made in her statement in support of her protection visa application.
The Tribunal noted that, when the Tribunal raised these inconsistencies with the applicant, she claimed to feel dizzy. The Tribunal put to the applicant that she complained of feeling dizzy whenever the Tribunal put inconsistencies in her story to her or when she was unable to answer the Tribunal's questions. The Tribunal noted that it asked the applicant if she had any medical reports to support her claim and noted the applicant's response that everything was in China.
The “Findings and Conclusions” of the Tribunal are accurately summarised in the written submissions of the first respondent at paragraphs 7 to 18 as follows:
“7. The Tribunal did not find the applicant to be a credible witness (CB 91.6), for five reasons.
8. Two different stories regarding Falun Gong involvement: First, the Tribunal found that there had been a significant change in the appellant’s story about her association with Falun Gong (CB 91.7):
· In her visa application the Tribunal claimed that she had been involved with Falun Gong activities full time from 1998 to 2004; that she was detained by the Chinese authorities at the end of 2004; and that after she was released she worked for Dong Sheng Huan Bao Co and organised Falun Gong activities within that firm (CB 8 and 91.7).
· At the hearing the applicant told the Tribunal a completely different story (CB 91.8). The applicant claimed that she was not a Falun Gong practitioner and had simply distributed Falun Gong literature from 1998 to 2002 in order to earn money (CB 87-88, 91.8). When the Tribunal put to the applicant at the hearing that her claims there were inconsistent with her claims in her visa application, the applicant responded that she “didn’t want to talk about it anymore” (CB 88.3 and 91.9).
On the basis of the above findings, the Tribunal found that the applicant was not a witness of truth and that she had not provided a truthful account of her involvement with Faalun Gong (CB 91.10).
9. Employment history in China: Secondly, the Tribunal also found that there were inconsistencies in the applicant’s story about her employment in China (CB 92.1-3). As a result of these inconsistencies, the Tribunal again found that the applicant was not a witness of truth and that she had not given a truthful account of her employment history in China (CB 92.3).
10. Knowledge of Falun Gong principles: Thirdly, the applicant’s evidence at the hearing indicated that she had a complete lack of knowledge of Falun Gong (CB 92.3-7):
· The applicant said she knew Falun Gong was about “truthfulness, benevolence and forbearance” but she was unable to explain how these moral precepts related to Falun Gong.
· The applicant was unable to name the five Falun Gong exercises.
· The applicant was unaware of the central Falun Gong concept of “xinxing” (see CB 90.5).
The Tribunal found that, if the applicant had been a Falun Gong practitioner, she would have been able to explain the significance to Falun Gong of the three moral precepts, explain the concept of “xinxing” and name the five Falun Gong exercises. Consequently, the Tribunal found that the applicant’s statements in her visa application that she was a Falun Gong practitioner and organiser from 1998 to 2004 and that she became a Falun Gong leader, were all untrue. (CB 92.3-7, see also 87.2-5)
11. Distribution of Falun Gong literature: Fourthly, there were problems with the applicant’s claim that she used to distribute Falun Gong literature in China (CB 92.8). The applicant demonstrated no knowledge of the books she claimed to have distributed. At the hearing she claimed not to have paid any attention to the books as she was only distributing them for money. The Tribunal found that, if the applicant had really distributed Falun Gong literature between 1998 and 2002, she would have been able to tell the Tribunal something about the contents of that literature. The fact that she was not able to do so indicated that she did not distribute Falun Gong literature between 1998 to 2002. (CB 92.8-93.1)
12. Moreover, the Tribunal found that it was implausible that Falun Gong organisations would have paid anyone (let alone a non-practitioner) to distribute material after Falun Gong was outlawed in 1999. The Tribunal thus held that the applicant had had not association with Falun Gong. (CB 93.1-4)
13. Alleged detention: Fifthly, there were inconsistencies in the applicant’s claims regarding her alleged detention (CB 93.4). In her visa application the applicant indicated that she had been detained at the end of 2004 (see CB 8). At the hearing the applicant indicated that she was in Kuwait from July 2002 to July 2005 (see CB 86.7). At the same hearing, the applicant claimed that she had been detained at the end of December 2001. However, the applicant’s passport indicates that she was in Singapore, Malaysia and Indonesia between December 2001 and January 2002 (CB 17-25, 57-70). On the basis of these inconsistencies, the Tribunal found that the applicant was not detained. (CB 93.5-7)
14. The Tribunal put these inconsistencies between the information given by her in her visa application and at the hearing and the information in her passport to the applicant in the s 424A letter (CB 73-75), but there was no response (CB 91.9).
15. The Tribunal found that, at the hearing, the applicant only complained about the state of here health when she was put under pressure to explain these inconsistencies. Consequently, the Tribunal found that the applicant’s claims about her health were only made in order to attempt to overcome serious flaws in her evidence. (CB 93.7)
16. As a result of these inconsistencies and the Tribunal’s conclusion that the applicant was not a witness of truth, the Tribunal found that:
· The applicant was not a Falun Gong practitioner in China (CB 93.8).
· The applicant did not distribute Falun Gong literature in China (CB 93.8).
· The applicant was not detained in China because of any Falun Gong connection (CB 93.9).
· None of the applicant’s statements in her visa application or at the hearing regarding her connection with falun Gong were true (CB 93.9).
· The applicant had fabricated her Falun Gong claims in an attempt to bring herself within the definition of a refugee (CB 93.10).
17. The Tribunal found that the applicant did not claim to have practiced Falun Gong in Australia (CB 94.1). It also found that there was no evidence that the applicant would practise Falun Gong if she returned to China (CB 94.1).
18. Consequently the Tribunal was not satisfied that the applicant had a well founded fear of persecution in China for a Convention reason and thus affirmed the decision of the delegate (CB 94.2-4).”
The applicant appeared before the Court this afternoon without representation, although had the assistance of an interpreter.
The applicant confirmed that she relied on the grounds identified in an amended application filed by her on 30 November 2006. The grounds were interpreted for the applicant and she was invited to make submissions in support of those grounds. It was explained to the applicant that the grounds were mere assertions of error and were unsupported by particulars. The applicant had nothing to say in support of the grounds or her application generally.
The grounds of the application are as follows:
“1. The Tribunal relied upon wrong independent information for the consideration of my application.
2. The Tribunal had bias against me and failed to consider my application for a protection visa according to S91R of the Migration Act 1958.
2. The Tribunal failed to provide me adequate particulars of the independent information.
The Tribunal failed to consider my claims.
3. The Tribunal failed to assess the chance of my persecution on my return to china.”
Ground 1 complains that the Tribunal relied upon wrong independent information for the consideration of her application. Because there are no particulars it is unclear to me what was the wrong independent information to which the Tribunal is alleged to have had regard. The Tribunal referred to country information in its decision. However, at the heart of the Tribunal's conclusions is its finding that the applicant is not a credible or truthful witness. The Tribunal identified with particularity the inconsistencies that caused it concern in the evidence given by the applicant with the claims made by the applicant in her statement given in support of her protection visa application.
After the hearing and before making its decision the Tribunal wrote to the applicant on 19 June 2006, identifying for the applicant the inconsistent claims made by the applicant to the Department. The letter invited the applicant to comment on those inconsistencies, in circumstances, where the fact that the applicant had made different claims before the Department, may cause the Tribunal to find that the applicant is not a witness of truth. The letter was sent pursuant to s.424A(1) of the Act. No complaint is made by the applicant arising out of any failure by the Tribunal to comply with its obligations under s.424A of the Act.
The s.424A letter identifies for the applicant the claims made by her to the Department and the inconsistent evidence made by the applicant at the hearing. The letter concluded by informing the applicant that, if she did not respond by 12 July 2006, the Tribunal may make a decision on the review of her case without further notice. No response was received from the applicant.
I note that the letter was sent to the applicant at the applicant's identified address for correspondence and there was no allegation by the applicant that she did not receive the letter.
The Tribunal had regard in its decision to the inconsistencies in the assertions made by the applicant in her statement to the Department and her oral evidence and internal inconsistencies within the evidence given at the hearing in concluding that the applicant is not a witness of truth. Those are findings and conclusions that were open to the Tribunal on the evidence and material before it and for which it gave reasons. Its adverse findings and conclusions were based either on information given by the applicant to the Tribunal for the purposes of its review or information that the Tribunal gave to the applicant for comment, in accordance with s.424A of the Act.
There was no independent evidence to which the Tribunal had regard in concluding that the applicant was not a credible or truthful witness.
Accordingly, ground 1 is not made out.
Ground 2 is a bare assertion of bias against the Tribunal that is unsupported by particulars, evidence or submissions. The applicant was directed on 21 September 2006 to file any evidence in support of her application by 30 November 2006. None has been filed. Such an allegation, at least, requires evidence of the transcript. Sufficient time has been provided to the applicant for the filing of any evidence. There is nothing on the face of the Tribunal's decision that would suggest that it approached the conduct of its review or the making of its decision other than with a mind not open to persuasion.
Accordingly, that ground is rejected.
Ground 3 complains that the Tribunal did not give to the applicant particulars of the independent information. Ground 3 is misconceived to the extent that there is no obligation on the Tribunal to give particulars of independent information to which it has regard to the applicant for comment. Such information is specifically excluded from the requirement of s.424A(1) of the Act by reason of s.424A(3)(a).
Accordingly, ground 3 is not made out.
Ground 4 complains that the Tribunal failed to consider the applicant's claims. Again there are no particulars, evidence or submission in support of such a complaint. It is plain from the Tribunal's decision that the Tribunal identified with particularity all the various claims made by the applicant and made findings and conclusions arising out of the evidence in support of those claims. As stated above, those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it gave reasons.
Accordingly ground 4 is not made out.
Ground 5 complains that the Tribunal failed to assess the applicant's chance of persecution on her return to China. Such complaint is misconceived. The Tribunal did not accept that the applicant had any association with Falun Gong and in the circumstances was not obliged to assess her chance of persecution for that reason were she to return to China. This ground otherwise disagrees with the finding of fact made by the Tribunal that the applicant was not associated with Falun Gong. The Tribunal’s finding was open to it on the evidence and material before it and for which it gave reasons.
Accordingly, ground 5 is not made out.
The Tribunal otherwise conducted its review in accordance with its statutory obligations, including the making of its decision. The Tribunal's decision is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this Court is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 27 March 2007
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