SZJGK v Minister for Immigration

[2006] FMCA 1779

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1779

MIGRATION – Review of decision by Refugee Review Tribunal – Refugee Review Tribunal not satisfied of applicant’s claims of being a Falun Gong practitioner – whether Refugee Review Tribunal complied with its obligations under s.424A(1) of Migration Act 1958 (Cth) – whether Refugee Review Tribunal required to call applicant’s witness to give evidence.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(3); 424A; 424A(1); 426; 474; pt.8 div.2

SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265

Applicant: SZJGK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2366 of 2006

Judgment of: Emmett FM

Hearing date: 16 November 2006

Date of last submission: 16 November 2006

Delivered at: Sydney

Delivered on: 16 November 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr S. Lloyd

Solicitors for the Respondent: Ms K. Hooper, Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2366 of 2006

SZJGK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 second-constituted Refugee Review Tribunal (“the Tribunal”), the decision being dated 4 August 2006 and handed down on 4 August 2006.  The Tribunal's decision affirmed a decision of a delegate of the first respondent (“the Delegate”) dated 24 August 2006, refusing the applicant a protection visa on the basis that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

2. The applicant arrived in Australia on 7 March 2003, travelling on a false passport, which, although it contained his photograph, was not his name, nor his data.  On 30 July 2003, the applicant was taken into detention and was subsequently granted a bridging visa on the basis that he was shortly to depart Australia.  The applicant did not depart Australia on the anticipated date and was again detained on 5 February 2004.  On 3 August 2004, the applicant filed his application for a protection visa, and, as I have already stated, that application was refused on 24 August 2004. 

3. The claims made by the applicant in support of his protection visa application were essentially that he is a Falun Gong practitioner in China, that he is a citizen of the People's Republic of China (“the PRC”) and that he left his home illegally in March 2003 because of fear of further religious persecution.  The applicant stated, in support of his protection visa application, that he was warned not to participate in Falun Gong activities whilst in the PRC and was ordered to write a statement confirming that he would not practice Falun Gong. 
   The applicant stated there were people that he knew that were arrested by reason of their being Falun Gong practitioners.

4. On 26 August 2004, the applicant lodged an application for review of the Delegate's decision by the Refugee Review Tribunal. 
   On 17 September 2004, the applicant was invited to attend a hearing on 22 October 2004.  However, on 22 October 2004, the applicant's hearing was postponed to 25 October 2004. 

5. Following the hearing on 25 October 2004, a further hearing took place on 12 November 2004 and concluded with the Tribunal affirming the decision of the Delegate of the first respondent.  On 6 September 2005, Barnes FM quashed the decision of the Refugee Review Tribunal on the basis that the postponed hearing from 22 October 2004 to
   25 October 2004 did not comply with the statutory requirements. 

6. On 29 May 2006, the applicant sent through a letter to the Tribunal, addressing various issues that he understood were matters of concern before the earlier-constituted Tribunal and seeking to provide various explanations.  On 30 May 2006, the applicant's migration agent sent to the Tribunal various material for its consideration, including a list of witnesses that the applicant wished to call in support of his application, those persons being fellow detainees in the Villawood Detention Centre. 

7. On 6 June 2006, the Tribunal wrote to the applicant inviting him to attend the hearing on 28 June 2006 and informing him that the Tribunal had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. 

8. On 28 June 2006, the applicant attended a hearing before the Tribunal with the assistance of his migration agent, and with a number of witnesses.

9. On 7 July 2006, the Tribunal sent to the applicant a letter, pursuant to s.424A(1) of the Act, giving the applicant information that may be part of the reason for the Tribunal affirming the decision under review, identifying the relevance of that information and inviting the applicant to comment by a certain date. The applicant's response to the s.424A letter was sent to the Tribunal on 17 July 2006 under cover of the applicant's migration agent and provided further material for the Tribunal's consideration.

10. The second-constituted Tribunal handed down its decision on
    4 August 2006.  In that decision, the Tribunal identified with particularity the evidence and material before it provided by the applicant in support of his claims. 

11. The Tribunal quoted in full the two statements provided by the applicant in support of his protection visa application and identified in detail the evidence given by the applicant, both orally and in writing, at the earlier-constituted Tribunal hearing. 

12. The Tribunal also detailed the evidence in exchange between the earlier-constituted Tribunal and the applicant in the continuation of the earlier hearing on 12 November 2004 and identified with particularity the further material provided and considered by the earlier-constituted Tribunal at that time. 

13. The Tribunal then considered the further material in evidence before it on 28 June 2006, at which the applicant gave evidence. The Tribunal again identified with particularity the claims made by the applicant including the response by the applicant to the earlier-constituted Tribunal's s.424A letter, which the Tribunal set out in full.

14. The Tribunal then identified independent country information to which it had regard.  The Tribunal was unable to find, as a matter of fact, that the applicant is a citizen of the PRC, however, proceeded to assess his claims against the PRC as his country of nationality.  The Tribunal observed that the applicant claimed to be a citizen of the PRC and that he would face persecution for reasons of his practice of Falun Gong whilst in the PRC and in Australia, were he to return to the PRC. 

15. The Tribunal was unable to be satisfied as to the identity of the applicant and the Tribunal noted the various names and birth dates that had been provided by the applicant in various documents. 
    The Tribunal placed no weight on any of the identity documents provided by the applicant on the basis that independent evidence indicated that such documents could be easily bought or forged and having regard to the inconsistencies in the documents themselves. 
    The Tribunal also observed that the applicant was unable to provide information about his siblings’ birth dates and did not accept the applicant's explanation offered to address that concern.  For those reasons, the Tribunal concluded that it was not satisfied that the applicant was the person that he claimed to be. 

16. The Tribunal then proceeded to address the applicant's remaining claims.  The Tribunal noted that the applicant brought a number of witnesses to the hearing, and that he provided a number of declarations of persons who attested to having known the applicant only in Australia and that he was a practitioner of Falun Gong whilst in detention. 

17. The Tribunal did not accept that the applicant was a Falun Gong practitioner in the PRC and gave various reasons for that finding. 
    In reaching that conclusion, the Tribunal had particular regard to the material provided by the applicant and identified the concerns that it had arising out of that material, including the fact that when the applicant was first detained and interviewed, he made no claims to the Department of a fear of returning to the PRC because he had been a Falun Gong practitioner. 

18. In considering the applicant's sur place claim, the Tribunal noted that unless the Tribunal was satisfied that the applicant had engaged in the conduct of Falun Gong practice otherwise than for the purpose of strengthening his claim to be a refugee, the Tribunal must disregard any such conduct.  The Tribunal was not so satisfied on the evidence and material before it.  The Tribunal found the applicant not to be a witness of truth and had regard to the applicant's failure to make any claim to the Department of his involvement in Falun Gong prior to August 2004. 

19. For those reasons, the Tribunal did not accept there was a real chance that the applicant will suffer harm now or in the foreseeable future, were he to return to the PRC, and was not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason. 

The proceeding before this Court

1. On 25 August 2006, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision.

2. The applicant appeared before the Court today unrepresented, but with the assistance of an interpreter, although I should note the interpreter has now left at this point in delivering these extempore reasons. 

3. The applicant informed the Court that he had not written the grounds in his application and that he did not seek to rely on that document.  Instead, the applicant sought to rely on a document filed by him on
   19 October 2006 and identified as the applicant's supplementary submission. 

4. I propose now to deal with each of the grounds raised by the applicant in that document as I understand them to be. 

5. Ground 1 is identified as follows:

   “1. The Tribunal found that the applicant have commenced practice Falun Gong since the time of applicant detention in 2004. However, the Tribunal considered that the applicant had done so far the purpose of obtaining on immigration advantage and therefore the Tribunal was prevented by the Migration Act to take applicant practice of Falun Gong into account in determining whether or not the applicant returned to china (sic). The Tribunal was not considering the applicant’s claim to fear of persecution by reason of Falun Gong activities.”

6. Ground 1 would appear to be no more than a disagreement with the finding of the Tribunal of not having been satisfied about the applicant's claims of being a Falun Gong practitioner. 

7. The Tribunal considered the applicant's claims of being a Falun Gong practitioner and had regard to the material provided by the applicant in support of those claims in Australia. The Tribunal provided reasons (see paragraph 18 above in these Reasons) why it failed to be satisfied in accordance with s.91R(3) of the Act, and those findings and conclusions were open to it on the evidence and material before it.

8. Accordingly, Ground 1 is not made out.

9. Ground 2 is identified as follows:

   “2. The issue of the inconclusive result of the examination of the applicant’s Hong Kong passport. The Court Book has copy of a request for the passport to be examined by a specialist document examiner. But the applicant has not received any advice as to the result of such examination.”

10. The applicant submitted that the Tribunal sent his passport away to be examined by a document examiner and that the Tribunal proceeded to make its decision without awaiting the result of the examiner. 

11. Counsel for the first respondent submitted that the Tribunal accepted that the applicant's passport was false and that such finding was in accordance with the applicant's own statements of his passport having been false. 

12. The results of the examination formed no part of the Tribunal's reasons for affirming the decision under review. 

13. In circumstances where the applicant himself asserted that the passport was false, there cannot be any error on the part of the Tribunal in, either failing to provide the results of such examination to the applicant, or waiting for any results before proceeding with its decision.  However, they simply played no part in the Tribunal's reasoning for decision. 

14. Accordingly, Ground 2 is not made out.

15. Ground 3 is identified as follows:

    “3. As for the 2^nd Tribunal. The claim by the Tribunal that the applicant did not explain the reason for lengthy delay in applying for protection. That statement of the Tribunal is wrong. The applicant informed the Tribunal at length of the reason for the delay.”

16. Ground 3, again, appears to cavil with the evaluation of the applicant's evidence about his claim of being a Falun Gong practitioner in the PRC and disagreeing with the findings of the Tribunal in having regard to the applicant's delay in making such a claim. 

17. It is plain that the Tribunal had regard to the evidence before it and properly discharged its duty to evaluate that evidence and make findings (see paragraphs 10 to 19 above in these Reasons). 
    Those findings are findings of fact that were open to the Tribunal on the evidence and material before it. 

18. Accordingly, Ground 3 is not made out. 

19. Ground 4 is identified as follows:

    “4. The 2^nd Tribunal’s wrongly stating that the applicant brother died in an accident.”

20. Ground 4 alleges that the Tribunal wrongly stated that the applicant's brother died in an accident. 

21. Even if the Tribunal had wrongly stated that fact, it cannot amount to a jurisdictional error.  The source of that finding by the Tribunal is a statement by the applicant, dated 7 December 2004, set out as follows:

    “My grandmother told me:  Before starting learning it, my mother died in an accident, then I was 6 years old and my brother 3, which made my father very grieved.”

22. Whilst a careful reading and consideration of those words may suggest that it was the applicant's mother that had died in an accident rather than his brother, the words themselves are curious in that the applicant claims to have been six years old and yet describes a three year old brother as his elder brother. 

23. In any event, the issue is relevant only to the extent that it was the unsatisfactory nature of the applicant's evidence about his family that was part of the reason for the Tribunal not being satisfied that the applicant is the person he claimed to be (see paragraph 15 above in these Reasons).  Whether his older brother had died in an accident or not would not, in my view, have affected that finding. 

24. For that reason, Ground 4 is rejected. 

25. Ground 5 is identified as follows:

    “5. Section 424(1) of the Migration Act imposes a heavy onus on Tribunal to inform applicant in writing after the hearing and to seek applicant Comments in respect of information provided to sources other than the RRT. But the Tribunal made such a decision and reason to reject the application’s document of identity without any foundation.”

26. Ground 5 appears to allege a failure by the Tribunal to comply with its obligations under s.424A(1) of the Act.

27. Clearly, the Tribunal did comply with s.424A(1) of the Act in the letter from the earlier constituted Tribunal to the applicant on 7 July 2006 (SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [42]-[43]). The applicant provided a response to that letter and the Tribunal gave consideration to those responses.

28. The Tribunal is not obliged to believe or accept the applicant’s responses to its s.424A(1) letter and it is open to the Tribunal to evaluate that evidence in the context of considering the applicant's claims. There is no other material to which the Tribunal had regard that enlivened s.424A of the Act.

29. Accordingly, Ground 5 is not made out. 

Other grounds

1. In oral submissions before me this morning, the applicant referred to other grounds. 

2. The first oral complaint was about the Tribunal’s rejection of the evidence of witnesses sought to be called by the applicant, in his support at the Tribunal hearing.  However, the first respondent provided a transcript of the hearing, which discloses that the Tribunal had regard to the nature of the evidence that those witnesses were to provide, namely their observations of the applicant's practice of Falun Gong whilst in detention in Australia.  None of the witnesses were able to provide any evidence about the practice of Falun Gong by the applicant in the PRC.  In any event, the Tribunal accepted the evidence of those witnesses as confirming that the applicant had practised Falun Gong whilst in detention in Australia to their observation. 

3. Moreover, counsel for the first respondent submitted that, pursuant to s.426 of the Act, the Tribunal is not required to call witnesses identified by the applicant.

4. It is plain that the Tribunal gave consideration to the applicant’s request to call witnesses and explored and satisfied itself as to the nature of the evidence that those witnesses would be addressing.  In the circumstances, there can be no error in the manner in which the Tribunal dealt with the witnesses called by the applicant. 

5. The second oral complaint related to the Tribunal’s consideration of the 2 letters of support provided by the applicant in support of his claim of being a Falun Gong practitioner in the PRC. 

6. The first letter does not say in specific terms that the applicant was a Falun Gong practitioner, rather, it states that the author observed the applicant doing some meditation in his room every day after he got up.  The Tribunal was not prepared to accept that letter as evidence of the applicant being a Falun Gong practitioner in the PRC.  That finding was open to the Tribunal on the material and evidence before it and the Tribunal was doing no more than considering and evaluating the evidence before it, as it was obliged to do. 

7. The second letter appeared to be from a friend of the applicant who stated that he met the applicant in the Fung Shi city and that they started doing a seafood business together.  This person stated that the applicant taught him Falun Gong.  However, the Tribunal was not satisfied that the applicant had a business in the PRC, nor that he was forced to relinquish that business as a result of any persecution for being a Falun Gong practitioner.  The Tribunal considered the information in the second letter and concluded that it placed no weight on that information, having regard to the Tribunal's findings that the applicant is not a witness of truth, and that the Tribunal had not had the opportunity to have the author’s evidence tested. 

8. The Tribunal stated that, because it was not satisfied that the applicant had a seafood business in the PRC, and that, as the second letter deposes to meeting the applicant whilst he was running the business in the PRC, the Tribunal is of the view that the information provided in the second letter was created in order to enhance the applicant's claims.  The findings that the Tribunal made in respect to that evidence were open to it on the evidence and material before it and for which it gave reasons. 

9. The third oral complaint was that the Tribunal did not check the documents correctly and did not follow the procedure that it was required to follow.  The applicant provided no particulars in support of this ground.  Counsel for the first respondent correctly submitted that there is no duty on the applicant to check any documents. 

1. Further, the Tribunal's decision and its review process discloses that the second-constituted Tribunal both understood its statutory duty and the regime under which it operated and conducted its review process.  Accordingly, there is no error on the part of the Tribunal in respect of this complaint. 

2. The fourth oral complaint was made by the applicant following the conclusion of the submissions of counsel for the first respondent.
   It was that the members of the Chinese authorities had been allowed into the detention centre and that information provided by the applicant had been leaked by the Department to those persons.  There is no such claim articulated in those terms in any material that was before the Tribunal.  The only reference to such a matter at all is contained in a statement by the applicant following the earlier constituted Tribunal hearing in which he said, having raised the issue:

   “RRT raised the issue why I didn't mention that my wife was harassed by the police?” 

   The applicant purported to give an explanation which concluded with the words:

   “On 16 May 2005, four unknown Chinese officials came to Villawood Detention Centre to investigate the refugee application made by Chinese nationals.” 

3. No further complaint is made by the applicant in his evidence before the Tribunal about that matter.  In my view, those words do not plainly raise, on the material or evidence before the Tribunal, a claim that the Department had leaked documents or information about the applicant that put him at risk and would otherwise found or support his sur place claim.  In these circumstances, it was not incumbent on the Tribunal to consider any such claim (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273.)

4. In the circumstances, the decision of the Tribunal contains no jurisdictional error. The decision is a privative clause decision and accordingly pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the proceeding before this Court is dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  30 November 2006