SZJKH v Minister for Immigration & Anor
[2007] FMCA 1899
•15 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJKH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1899 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – conclusions are not “information” for the purposes of s.425 – s.424A is concerned with information which is adverse to the applicant’s claim – s.425 does not require the Tribunal to put to an applicant its impression that documents submitted by the applicant were not genuine – s.425 does not require the Tribunal to put to an applicant inconsistencies in his evidence identified by the Tribunal – when the Tribunal says “I will take that on board” it means that the information in question will be taken into consideration and not ignored, not that it is or will be accepted. |
| Migration Act 1958, ss.91R, 422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 NBID v Minister for Immigration & Anor [2005] FMCA 653 SZGYT v Minister of Immigration & Anor [2007] FMCA 883 |
| Applicant: | SZJKH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1558 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 September 2007 |
| Date of Last Submission: | 28 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Gibian |
| Solicitor for the Applicant: | Ms. M. Byers |
| Counsel for the Respondents: | Mr. Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1558 of 2007
| SZJKH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was an adherent of Falun Gong. He alleges that while in China he practised Falun Gong. The applicant left China for Australia where, he alleges, he has undertaken Falun Gong study classes.
The applicant claims to fear persecution in China because of his practice of Falun gong.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 18 February 2003. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the third such decision relating to the applicant. There were two previous Tribunal decisions dated 2 January 2004 and 11 August 2006 which were quashed by orders of the Federal Court and this Court respectively.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 12 to 21 of the Tribunal’s decision (Court Book (“CB”) pages 218-227). Relevantly, they are in summary:
a)the applicant became a Falun Gong practitioner in 1998 and a member of Falun Gong study groups in 2003;
b)the applicant attended the mass rally outside the Communist Party’s Zongnanhai compound in Beijing on 25 April 1999. He claimed he was there to present a petition to the government;
c)on 22 July 1999, when the Falun Gong movement was banned he immediately went into hiding at his cousin’s home to avoid arrest;
d)on 23 July 1999 he ignored the government warning and went to Beijing to present a petition to the government at Xidan along with thousands of other Falun Gong supporters but was forced by the police to return to his home town on 24 July 1999; and
e)upon return to Liaoning in July 1999, he realised that he was in danger and arranged for someone to help him leave China.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant’s evidence about taking up Falun Gong in China was inconsistent, noting that:
i)he told differently-constituted Tribunals that he took up Falun Gong in 1998 and 1999;
ii)he provided information to the second Tribunal about having taken up Falun Gong not for physical health but in search of meaning, but after several years of claimed devotion, he displayed little knowledge of Falun Gong to either the second Tribunal or to the third Tribunal;
iii)he gave contradictory reasons for not being able to explain the meaning of an exercise he claimed to have practised for over eight years according to teachings he claimed to have studied for over three years; and
iv)he told the third Tribunal that the 1999 Falun Gong crackdown ended his employment whereas he told the second Tribunal that he was employed until 1998;
b)the applicant’s personal chronology of relevant July 1999 events was implausible;
c)the Tribunal gave no weight to the statements of the applicant’s two alleged co-practitioners, finding that:
i)the two witnesses had given incorrect dates for the 25 April 1999 and 22 July 1999 Beijing demonstrations;
ii)the witnesses’ dating of the April 1999 demonstration did not agree with the applicant’s reference to the demonstration having taken place on 25 April 1999; and
iii)the statements used identical language, were addressed to the Tribunal in the same way and were solicited in bad faith for self-serving purposes;
d)the applicant’s evidence about having slept at his cousin’s home was inconsistent;
e)the Tribunal found it could not give any weight to the evidence of the cousin;
f)because of the applicant’s poor performance as a consistent witness the Tribunal gave no weight to the statement attributed to his neighbour, particularly where he attests to the applicant having been a Falun Gong follower and having been in trouble with the authorities;
g)because of internal inconsistencies and repeated historical inaccuracies the Tribunal gave no weight to evidence presented in support of the claims that the applicant was a Falun Gong practitioner while in China;
h)because of the applicant’s lack of consistency and lack of credibility the Tribunal was not satisfied that he had affiliated with Falun Gong prior to coming to Australia;
i)the Tribunal did not accept that any relevant, attention-averting measures were taken to facilitate the issuing of the applicant’s passport, noting that:
i)the Tribunal found no evidence to support the suggestion that the kind of assistance the applicant received was aimed at or capable of persuading or fooling the authorities to issue a passport to a person of concern to them;
ii)the Tribunal did give weight to the fact that the applicant left China legally on a passport issued in his own name and which identified him by his citizen ID number and date and place of birth;
iii)although the Tribunal was prepared to accept that the signature in the passport might be different from the one the applicant usually used it did not accept that this added any weight to his claims about having skirted security checks in the circumstances claimed;
iv)the Tribunal gave no weight to the claim about the look of the signature in the applicant’s passport being of any significance; and
v)the Tribunal gave no weight to the applicant’s claims that he was able to depart China legally due to not receiving the passport until he approached the airport;
j)the applicant lacked credibility in relation to his claimed Falun Gong affiliation in China prior to his arrival in Australia. He gave inconsistent evidence to the Tribunal as to why he could not answer questions going to the meaning of the exercise he performed at the hearing before the Tribunal as constituted on the third occasion. The Tribunal found that the applicant’s knowledge of Falun Gong fell far short of what one would reasonably expect of a person who claimed to have been studying Falun Dafa for over three years and practising Falun Gong for even longer;
k)the Tribunal was of the view that, after arriving in Australia, the applicant had engaged with the Falun Gong movement and had participated in public Falun Gong protests and demonstrations for the purposes of contriving a refugee profile. Such conduct was disregarded by reason of s.91R(3);
l)the Tribunal found that the applicant’s claimed interest in Falun Gong was not genuine; and
m)the Tribunal was not satisfied that the applicant was a witness of truth.
Proceedings in this Court
At the hearing on 28 September 2007 the applicant filed an amended application in Court. The grounds of the amended application can be summarised as follows:
a)the Tribunal breached s.424A of the Act;
b)the Tribunal breached s.425 of the Act; and
c)the Tribunal erred in its application of s.91R(3) of the Act.
Dealing with each of these grounds in turn:
Breach of s.424A
The applicant particularised this ground in the following terms:
The Tribunal did not provide written notice to the applicant that it considered that his account of the events of July 1999 bears some resemblance to information gathered and published by the Falun Gong movement and other human rights observers would be the reason or part of the reason for affirming the decision under review. [sic]
The applicant submitted that part of the reason for the Tribunal finding the applicant’s account to be implausible was that the Tribunal was of the view that there was some resemblance between the applicant’s account of events from 23 to 25 July 1999 and information available from the Falun Gong movement and human rights observers. He submitted that such a view was “information” for the purposes of s.424A. In doing so the applicant drew an analogy between this material and the “similar claims information” discussed in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 by Weinberg J at 253 [164] and Allsop J at 264 [227].
This asserted ground of review is not made out. First, the conclusion that the applicant’s account of relevant events was similar to that contained in other information, being a conclusion, is not “information” for the purposes of s.424A.
Secondly, the information underlying that conclusion, namely the applicant’s account to the Tribunal and the independent information gathered and published by the Falun Gong movement and other human rights observers fall respectively within the exceptions contained in s.424A(3)(b) and s.424A(3)(a). Although in his written submissions the applicant submitted that it was impossible to know what the independent information was and, thus, whether it fell within the s.424A(3)(a) exception, this overlooks the fact that such information is quoted by the Tribunal at pages 13 and 14 of its decision (CB 219 – 220).
Thirdly, s.424A is concerned with information which is adverse to the applicant’s claim because it is information which the Tribunal relies on in affirming the delegate’s decision to refuse the protection visa. It cannot be said that the general confirmation of the applicant’s assertions concerning the general series of events from 23 to 25 July 1999 could be considered to be adverse to his claims.
Fourthly and finally, the “view that there was some resemblance between the applicant’s account and information available from the Falun Gong movement and human rights observers”, to quote from the applicant’s written submissions, was not the reason or part of the reason for affirming the delegate’s decision. The paragraph in which the impugned sentence appears does contain a finding adverse to the applicant but it is expressed in the following terms:
However, the Applicant’s personal chronology of relevant July 1999 events also involves such rapid, event-filled movement from Shenyang to Beijing, for a demonstration followed by arrest and interrogation, then back to Shenyang for a period of indoctrination, and then into hiding elsewhere within Liaoning, all within three calendar days, that the … Tribunal ultimately finds the whole account implausible (CB 229) (emphasis in original)..
That is to say, it was not the applicant’s account of the general events of 23 to 25 July 1999 which told against him but, rather, his account of events specific to him which he alleged occurred in that period. Indeed, the prefatory word “however” in the above quoted passage indicates that the Tribunal was comparing the two matters, namely what the applicant said generally about the events and what he said particularly about himself. The former was accepted and the latter was rejected.
Consequently, this asserted ground of review is not made out.
Breach of s.425
In his amended application the applicant particularised the Tribunal’s alleged breaches of s.425 as follows:
2. …
(a) The Tribunal failed to identify that an issue arising in relation to the decision under review was whether two witness testimonials submitted by the applicant was [sic] “solicited in bad faith for self-serving purposes”.
(b)The Tribunal failed to identify that an issue arising in relation to the decision under review was whether the applicant had given inconsistent dates as to when he commenced practicing [sic] Falun Gong in the PRC
(c) The Tribunal failed to identify that an issue arising in relation to the decision under review was whether the applicant’s account of the events of July 1999 resembled information published by the Falun Gong movement and other human rights observers
3. …
(a) The Tribunal failed to identify that an issue arising in relation to the decision under review was the inconsistency of dates given by the applicant and his cousin as to when he commenced living with the cousin.
(b) The Tribunal failed to provide the applicant with an opportunity to give evidence and present arguments in relation to that matter in that it gave the applicant no reason to believe that it did not accept the correction of the date given by his cousin in the course of the hearing on 16 March 2007.
In relation to the first three particulars, the applicant submitted that the only issue which had been identified by the delegate when refusing the application for a protection visa was that the applicant had not provided details of having personally suffered harm or mistreatment in China of sufficient gravity to constitute persecution and that he was not then under investigation or of adverse interest to the Chinese authorities. The applicant submitted that the delegate did not raise as an issue that the applicant was not a Falun Gong practitioner or had fabricated claims. The matters identified by the first three particulars were said to be issues which should have been identified to the applicant, persumably on the basis that they and the findings of fact associated with them underpinned the findings that the applicant was not a Falun Gong practitioner and that his claimed interest in Falun Gong was not genuine.
As to the two corroborative statements (“testimonials”), the applicant submitted that it was fundamentally unfair for the Tribunal to conclude that documents important to the applicant’s claim are not genuine without affording him the opportunity of dealing with the issue.
The applicant referred to WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511. However, the Tribunal decision the subject of WACO’s case predated the introduction of s.422B into the Act. Consequently, its references to procedural fairness make that case distinguishable from this one.
The applicant also referred to the decision of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 where his Honour considered the operation of ss.422B and 425 and concluded that procedural fairness required an applicant be given an opportunity to comment on the issue of whether documents had been concocted for the purposes of the application.
However, since his Honour delivered his judgment in WAJR, the operation of s.422B has been explained by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 which referred to preceding cases which had considered the section, including WAJR. After referring to the different interpretations of s.422B which had preceded the Lat decision, the Full Court of the Federal Court said this:
What was intended was that [the relevant subdivision] provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule (at 225 [66]).
Also since his Honour delivered his judgment in WAJR, the High Court has delivered its judgment in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 where the Court explained that an “issue”, for the purposes of s.425, was one which was determinative against the applicant. In that case, the Tribunal erred because it based its decision, in part, on aspects of the applicant’s account which had not been in issue before the delegate but which it did not identify to the applicant as important issues for the purpose of the Tribunal’s review.
Here, it could not be said that the rejection of corroborative evidence was an “issue” in the sense discussed in SZBEL. The letters in question were no more than material advanced by the applicant in connection with what was the real issue, namely whether he was truly a Falun Gong practitioner when he was in China.
Consequently, the authorities to which the applicant made reference are of no assistance in the resolution of this issue. Rather, they draw attention to the fact that the natural justice hearing rule has no application to the two statements in question and that the Tribunal conclusion, based on inaccuracies and inconsistencies in the statements, does not amount to an “issue” as comprehended by s.425.
As to the second particular and the question of when the applicant took up Falun Gong, the applicant submitted that the Tribunal did not identify to him that the day he took up Falun Gong in China or any inconsistency in his statements about that question was an issue arising in relation to the decision under review. The inconsistency identified by the Tribunal is a conclusion not thus an “issue” for the purposes of s.425: SZBEL at 523 [48].
For the same reasons, the matters raised in the third particular do not amount to an “issue” or indicate a breach of the section.
As to the fourth particular, the applicant submitted that the Tribunal breached s.425 by failing to identify that there was an inconsistency in the dates given by the applicant and the date given by his cousin concerning when the applicant stayed with his cousin. The applicant referred to evidence at the hearing before the third Tribunal:
APPLICANT: Last hearing I had a letter, last time I got a letter by my witness for so many years. My witness made a mistake about the date, maybe just one date difference.
TRIBUNAL MEMBER: What date?
APPLICANT: That is the date when I once stayed in his house there was that, was on July 24th and he said it was on July 23rd.
TRIBUNAL MEMBER: I will take that on board, okay. What I am about to do, I will give you until close of business 29 March to make further submissions in this matter …
…
APPLICANT: Just that issue I mentioned, that the date I mentioned, the last hearing need to be changed. (transcript pp.17 – 18)
The applicant submitted that the Tribunal further breached s.425 by failing to provide the applicant with an opportunity to give evidence and present arguments on the issue of the inconsistency in the dates given.
The submissions in relation to this particular overstate the Tribunal’s decision and misunderstand what it did. In relation to the matters raised by the applicant I find the difference in dates concerning when the applicant started to live with his cousin in hiding was not an issue for the purposes of s.425. The issue, relevantly, was whether the applicant feared persecution. The fact that the applicant claimed to have gone into hiding only had relevance in the context of a need to go into hiding which was, in turn, related to the question of the applicant’s alleged fear of persecution. The accuracy of the date on which the applicant claims to have gone into hiding was a matter by which the veracity of that claim could be tested. Even so, whether or not he went into hiding was, itself, not a determinative issue. The determinative issue was whether the applicant had a fear of persecution – the fact that he claimed to go into hiding was simply evidence the applicant advanced to prove that he held that fear.
Contrary to the applicant’s submissions, the Tribunal had no obligation to identify to the applicant that there was a discrepancy between the dates which he had advanced in support of his allegation that he went into hiding in order to escape persecution. This particular is not made out.
As to the final particular, the applicant reads too much into the expression “I will take that on board, okay” when he asserts that the Tribunal gave the applicant no reason to believe that it would not accept his purported correction of the date he said he went to live with his cousin in hiding. Contrary to the applicant’s submissions, the Tribunal did not give an assurance that “the correction of the dates” given by the applicant would be accepted. To interpret the expression “I will take that on board, okay” to mean that the evidence would be uncritically accepted is to push those words beyond their reasonable meaning. To take something “on board” means that it will be taken into consideration, that it will not be ignored. It does not mean that it is or will be accepted.
The fact that the Tribunal took “on board” the applicant’s attempt to clarify the inconsistency in dates between himself and his cousin is not analogous to the situation considered by Barnes FM in NBID v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 653. Here was a situation where the Tribunal said that it would consider what the applicant had said whereas in NBID the Tribunal had said “If I have any problems I will put them to you” [at 40].
This particular of the claim is also not made out.
Erroneous application of s.91R(3)
The applicant submitted that in order for s.91R(3) to apply the Tribunal had to be satisfied that the applicant’s entire engagement in Falun Gong activities from 2003 to the time he was likely to leave Australia was undertaken for the purpose of strengthening his claim to be a refugee.
The applicant submitted that the Tribunal had focussed on the reasons for the applicant’s initial involvement with Falun Gong in Australia without considering the entire period of his involvement with Falun Gong. In so doing, reference was made to SZGYT v Minister of Immigration & Citizenship [2007] FMCA 883 where Driver FM held that the Tribunal had erred when considering an applicant’s Falun Gong involvement in Australia by focussing merely on the reasons for that applicant’s initial involvement with Falun Gong and without giving proper consideration to the genuineness of his belief and practice in Australia at a subsequent time. His Honour held that the Tribunal had erred by not considering whether his subsequent conduct, by way of commitment to Falun Gong, might justify a well-founded fear of persecution for a Convention reason.
In making the submission, the applicant puts undue stress on the words “engaged with” in the following finding of the Tribunal:
The Tribunal is of the view that the applicant has engaged with the Falun Gong movement since arriving in Australia and, in particular, has participated in public Falun Gong protests and demonstrations in Australia for the purposes of contriving a refugee profile. (CB 231)
The applicant submitted that the expression “engaged with” was ambiguous or suggested a reference to the applicant’s initial engagement with Falun Gong, rather than the entirety of his engagement with Falun Gong in Australia.
I find there is no ambiguity in that expression or, properly understood, any undue focus by the Tribunal on the applicant’s initial commitment to the Falun Gong movement in Australia. Rather, the Tribunal’s words indicate that it considered the entirety of the applicant’s engagement with the Falun Gong movement in Australia and did not, as it did in SZGYT, erroneously limit its consideration to one point in time.
Consequently, this asserted ground of review is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 November 2007
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