SZJNG v Minister for Immigration

[2009] FMCA 530

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNG v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 530

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 425

NBKB v Minister for Immigration and Citizenship (2009) 106 ALD 525; [2009] FCA 69
SZBEL v Minister for Immigration (2006) 231 ALR 592, (2006) 228 CLR 152
SZBYR vMinister for Immigration (2007) 235 ALR 609
SZDFZ v Minister for Immigration (2008) 168 FCR 1
SZFCT v Minister for Immigration [2007] FCA 1984
SZFPA v Minister for Immigration [2008] FCA 1220
SZGYT v Minister for Immigration [2007] FMCA 883
SZHKA v Minister for Immigration (2008) 249 ALR 58
SZISM v Minister for Immigration (2007) 158 FCR 292
SZJGV v Minister for Immigration (2008) 170 FCR 515, 247 ALR 451
SZJHL vMinister for Immigration [2007] FCA 1713
SZJUB vMinister for Immigration [2007] FCA 1486
SZLDV v Minister for Immigration [2008] FCA 1211
SZLJB v Minister for Immigration [2008] FCA 1233

Applicant: SZJNG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3235 of 2008

Judgment of: Driver FM

Hearing date: 4 June 2009

Delivered at: Sydney

Delivered on: 4 June 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms L Clegg

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3235 of 2008

SZJNG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 10 November 2008.  The Tribunal affirmed a decision of the delegate Minister not to grant the applicant a protection visa.  The background facts including the procedural history of this matter are somewhat complex.  The following statement of background facts is derived from written submissions filed on behalf of the Minister on 9 February 2009 and on 26 May 2009.

2. The applicant’s claims were contained in a letter to the Department dated 22 February 2005, which accompanied his protection visa application (“PVA”): court book (CB) 26 – 33. The applicant also provided a copy of his passport in support of his application: CB 34 – 37.

3. The applicant, a citizen of the People’s Republic of China (“PRC”), claimed to have been a Falun Gong practitioner since March 1999. He was introduced to Falun Gong through a friend who was a follower. He claimed to have practised every day. The applicant believed that the authorities would become aware of his participation in Falun Gong and persecute him. The letter from the applicant also contained extensive general information regarding the history of Falun Gong.

4. In a written statement to the Department the applicant set out only the most general of claims to fear harm on account of his practice of Falun Gong  in China.[1]  He claimed that on the first Sunday of every month he went to a park and practised with other Falun Gong practitioners. After setting out lengthy historical material about Falun Gong and Chinese government’s treatment of Falun Gong practitioners the applicant merely stated:

   There is much evidence to support my claim that a person involved in Falun Gong, in a similar way as I have been involved, will be at risk of extreme punishment by PRC authorities…My circumstances is one such instance when convention related protection is necessary.[2]

   [1] CB 27 - 33

   [2] CB 33.3

5. There was no mention in the written claims of any detention and no suggestion that the applicant himself had come to the attention of the Chinese authorities. 

6. In a decision dated 2 May 2005, a delegate of the Minister rejected the applicant’s claims essentially based on serious doubts as to the applicant’s credibility and the delegate’s view that the information provided by the applicant was “broad, vague and contain[ed] statements that … [were] inconsistent with other information”: CB 42 – 49, particularly 46.8.

7. On 7 June 2005, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision: CB 50 – 52.

8. By letter dated 12 September 2005, the Tribunal invited the applicant to attend a hearing scheduled for 6 October 2005: CB 60. The applicant attended the hearing to give oral evidence and present arguments in support of his case: CB 69.7.

9. On 3 November 2005, the Tribunal handed down a decision affirming the delegate’s decision not to grant the applicant a PVA: CB 66 – 73. This decision was set aside and the matter was remitted to the Tribunal by consent orders of Scarlett FM dated 14 June 2006: CB 74.   

10. On 31 July 2006, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”): CB 77 – 78. The letter invited the applicant to comment upon a number of inconsistencies between information contained in his written statement accompanying his PVA and oral evidence given at the Tribunal hearing. The applicant responded by letter dated 21 August 2006: CB 79.

11. The Tribunal handed down its decision affirming the delegate’s decision not to grant the applicant a PVA on 19 September 2006: CB 83 – 90. This decision was again quashed and the matter was remitted by consent orders of Raphael FM dated 14 August 2008: CB 91.

12. By letter dated 4 September 2008, the Tribunal invited the applicant to appear before it on 31 October 2008: CB 95 – 96.[3] The applicant accepted the invitation (CB 97) and attended the hearing to give oral evidence and present arguments in support of his case: CB 99, 117.2 – 122.2. The applicant also provided a copy of a “wanted” notice from the Liuzhou City Public Security Bureau (CB 101 – 102) and a copy of his passport (CB 103 – 108).         

    [3] In accordance with the principle expounded in SZHKA v Minister for Immigration (2008) 249 ALR 58.

13. During the Tribunal hearing, the Tribunal reminded the applicant that his application had failed before the two previous Tribunal members due to identified conflicts in his evidence and because of his poor knowledge of Falun Gong: CB 117 at [44]. The Tribunal informed the applicant that it would have regard to his oral evidence given at the previous hearing: CB 117 at [44].

14. At the second oral hearing before the Tribunal as presently constituted, the Tribunal member put the applicant on notice of the effect of s.91R(3) in relation to the applicant’s claimed practice of Falun Gong in Australia.[4]

    [4] CB 119 at [53]

15. By a decision dated 10 November 2008, the Tribunal affirmed the delegate’s decision not to grant the applicant a PVA: CB 110 – 128. The Tribunal did not accept that the applicant had any association with Falun Gong in China or that he had any genuine conviction which might motivate him to become involved in the reasonably foreseeable future: CB 125 at [92].

16. The Tribunal referred to the applicant’s appearance before the first Tribunal and the presently constituted Tribunal and observed that the applicant was unable to display any significant knowledge of Falun Gong at either hearing: CB 125 at [93]. The Tribunal had put the applicant on notice during the Tribunal hearing that the evidence he had given did not suggest a depth of knowledge which would be expected from someone who had been practising Falun Gong since 1999 as he had claimed (CB 118 at [52]) and gave him an opportunity to give further evidence: CB 119 at [54].

17. The Tribunal was of the view that if the applicant had any genuine commitment to Falun Gong, he would have practised in Australia prior to the first Tribunal hearing: CB 125 at [94]. A finding regarding a failure to engage in an activity in Australia does not invoke the application of s.91R(3) of the Migration Act.[5] Moreover, the Tribunal found that if the applicant had engaged in Falun Gong as claimed, he would have demonstrated a better knowledge: CB 126 at [94]. The Tribunal did not accept the applicant’s explanation that after his arrest he was scared to practise and therefore practised secretly and less frequently: CB 126 at [94].

    [5] See for example, SZLDV v Minister for Immigration [2008] FCA 1211, per Jessup J at [18] and SZLJB v Minister for Immigration [2008] FCA 1233, per Jacobson J at [18] and [19].

18. The Tribunal noted that in the applicant’s response to the s.424A letter sent by the second Tribunal, he claimed to have joined a Falun Gong group in Australia after attending the hearing before the first Tribunal: CB 126 at [97]. Due to the applicant’s lack of a detailed knowledge of Falun Gong, the Tribunal concluded that the applicant joined a Falun Gong group in Australia for the sole purpose of strengthening his claim and accordingly disregarded that conduct: CB 126 at [97].

19. The Tribunal referred to the purported “wanted” notice provided by the applicant and observed that: it could easily have been fabricated (CB 126 at [98]); and it referred to an illegal Falun Gong gathering in February 1999 which the applicant claimed to have taken part in, which conflicted with independent country information stating Falun Gong was not banned until July 1999 as well as the applicant’s claim that he did not become involved in Falun Gong until March 1999 (CB 126 at [99]). The Tribunal had put the applicant on notice of its concerns regarding the wanted notice during the hearing: CB 119 [57] and [58]. On this basis, the Tribunal refused to give any weight to the document: CB 126 at [100].

20. Due to the applicant’s poor knowledge of Falun Gong, the Tribunal ultimately found that he had no commitment to or association with Falun Gong and in turn rejected all of his claims: CB 127 at [101]. The Tribunal’s decision was based on an adverse view of the applicant’s credibility.

21. In particular, the Tribunal did not accept that the applicant ever had, or presently had any “genuine convictions”.[6] The Tribunal’s reasons disclose that it rejected out of hand the applicant’s material claims, noting towards the end of the reasoning that it did not accept that the applicant:

    ... has now, or ever had, any personal commitment to the practice of Falun Gong ….it does not accept he had any association whatsoever with Falun Gong when he was in China.[7]

    [6] CB 125 at [92]

    [7] CB 127 at [101]

22. The Tribunal concluded that the applicant’s “conduct in joining” a Falun Gong practice group in Australia after the first hearing was for the purpose of strengthening his claim to be a Falun Gong practitioner and for no other purpose. The Tribunal therefore disregarded that conduct pursuant to s.91R(3).[8]

    [8] CB 126 at [97]

23. The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.[9]

    [9] CB 127 at [107]

24. These proceedings began with a show cause application filed on 8 December 2008.  There are two grounds in the application, which I incorporate in this judgment:

    1. [Tribunal] did not consider my application fairly.  They did not give me more chance to explain my reasons and doubts by writing.

    2. I am not satisfied with [Tribunal] decision.  It is not fair.  They use negative cases to refuse my application.  [Tribunal] has not evidence to prove that I did not tell the truth.  I am Falun Gong practitioner.  All I said is true.  [Tribunal] failed to assess my risk to return to China.

25. Essentially, the applicant asserts procedural unfairness. In view of the generality of those claims, I required an initial hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth), which was conducted on 2 March 2009. At that hearing, I identified two arguable issues of jurisdictional error, upon which I required the Minister to show cause why relief should not be granted. Those are:

    a)whether the Tribunal breached s.425 of the Migration Act by failing to ensure that the applicant understood the essential and significant issues relating to the review at the most recent hearing conducted by the Tribunal, having regard to the decision of the Federal Court in NBKB v Minister for Immigration [2009] FCA 69; and

    b)whether the Tribunal erred in relation to its application of s.91R(3) of the Migration Act by limiting its consideration of the applicant's conduct in Australia to his joining a Falun Gong practice group rather than taking into account the full period of that conduct.

26. I formed a view then, and remain of the view now, that the application before the Court does not otherwise disclose an arguable case of jurisdictional error.

27. I have before me as evidence the court book filed on 18 December 2008.  The applicant also asked me to take into account the affidavit accompanying his show cause application filed on 8 December 2008.  That affidavit is brief and repeats the applicant's protection visa claims.  I treated that affidavit as a submission.

28. The applicant has not filed any written submissions for the purposes of today's hearing.  When I invited him to make oral submissions, he reasserted his fear of harm in China.  He also said that the Tribunal should not have rejected his review application.  He was, perhaps understandably, unable to make any submissions relating to the legal issues identified in the show cause order.  Those issues are dealt with in the Minister's submissions from paragraphs 20 through to 31, which I incorporate in this judgment:

    The first issue: NBKB v Minister for Immigration and Citizenship[10]

    [10] NBKB v Minister for Immigration and Citizenship (2009) 106 ALD 525; [2009] FCA 69.

    The Minister submits that NBKB v Minister for Immigration and Citizenship (2009) 106 ALD 525 has no application to the facts of this case. On the authority of NBKB,[11] the Court is required to assess whether the Tribunal member who is making the decision (which is the subject of the application for judicial review) sufficiently (and it seems personally) alerted the applicant to ‘critical issues’ arising under the review: see NBKB at [39].[12]

    [11] Which is currently the subject of an application for special leave to the High Court by the Minister.

    [12] That is, other than the issues which were issues before the delegate. The reasoning of McKerracher J in NBKS appears to be an implicit rejection of the view of Barnes FM in the Court below that the ‘issues’ need only  be raised during the entire conduct of the review, and this can include ‘issues’ raised by previous Tribunal members.

    It is submitted that NBKB has no application here because the critical issues in the present case were sufficiently alerted to the applicant by the Tribunal member who made the decision under review. The acceptance of this submission turns upon what is an ‘issue’ in the present case. Whether an issue must be raised with an applicant for s 425 purposes will “be a matter for assessment of fairness in each case”.[13] To identify an issue too narrowly will give rise to “what in a s 424A context, the High Court has described as ‘a circulus inextricabilis’ of invitation and comment” – and in the s 425 context, new hearings.[14]

    [13] SZISM v Minister for Immigration and Citizenship (2007) 158 FCR 292 per Black CJ, Weinberg and Allsop JJ at [27]. See also SZFCT vMinister for Immigration and Citizenship [2007] FCA 1984 per Lindgren J at [52] – [53], SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 per Bennett J at [16] – [21].

    [14]  SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713 per Finn J at [15] – [16] citing SZBYR vMinister for Immigration and Citizenship (2007) 235 ALR 609 at [20].

    Identifying an issue requires attention to the reasoning of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. In SZBEL the Tribunal disposed of the applicant’s claims for three clearly articulated, simple reasons.[15] Two out of three of those reasons involved ‘issues’ or lines of reasoning that had not been raised with the applicant, either at the hearing or in writing. Nor would it have been in any way apparent to the applicant that the two reasons might be reasons for rejecting his factual claims.[16]

    [15] SZBEL vMinister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 158- 159 [19]- [20],164[38], 165[42].

    [16] SZBEL vMinister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165[43]

    The differences between the facts and reasoning of the Tribunal in this case and the facts and reasoning of the Tribunal in SZBEL are stark, for three reasons.

    First, in the present case (unlike SZBEL) the delegate refused to grant the protection visa on credibility grounds, inconsistencies in the information given, and the fact that  the information given was ‘broad  and vague.’[17]  The applicant in this case was therefore on notice that he was required to prove the genuineness of his claims.  By the time the applicant reached the second Tribunal hearing, nothing had changed. The rejection of the applicant’s claims by the third Tribunal member can be said to ultimately rest on the same grounds as the rejection by the delegate. In other words, the issues that the delegate had with the application were the same issues that the third Tribunal member had. Therefore, the issues were ‘live’ issues on the review from the very outset: SZBEL at [35]. This is sufficient to dispose of the question as to whether the applicant was sufficiently alerted to the ‘critical’ issues on the review.

    Second, unlike SZBEL, the Tribunal member in this case challenged many of the applicant’s claims and explanations throughout the oral hearing. If the applicant’s credibility and the plausibility of his claims were not issues before the second oral hearing, then they certainly became issues at that hearing before the third Tribunal member.[18]

    Third, to the extent that the possibility of a finding that s 91R(3) might operate adversely against the applicant, and the issue of the genuineness of the ‘detention document’ were new ‘issues’ on the review, each of these ‘issues’ was discussed with the applicant by the third Tribunal member.[19]

    Therefore, all critical and essential issues dispositive of the Tribunal’s decision were raised with the applicant at the second hearing by the third Tribunal member.[20]

    The second issue: SZGYT

    The Tribunal’s Findings and Reasons reveal that the Tribunal considered and then disregarded the claimed conduct of the applicant in “joining a Falun Gong practice group” in Australia.[21]

    However, due to the language used by the Tribunal a question arises as to whether, as in SZGYT v Minister for Immigration [2007] FMCA 883 per Driver FM, the Tribunal’s reasoning gave rise to an inference that the Tribunal had considered the applicant’s conduct in Australia only at the time he commenced (or joined) Falun Gong in Australia: see SZGYT at [9].

    In the present case, there is ultimately no basis for concluding that the Tribunal overlooked the applicant’s motivation for engaging in any Falun Gong conduct after he joined a Falun Gong group in Australia. The Tribunal’s reasons contain repeated references to the applicant’s lack of commitment (or convictions) to Falun Gong in the present tense: see CB 125 at [92], and CB 127 at [101]. Accordingly, the only permissible inference is that that the s 91R(3) finding at CB 126 at [97] is a finding with respect to all of the applicant’s Falun Gong conduct in Australia.

    No error in connection with s 91R(3) is disclosed, and there is no error of the kind identified in SZGYT.

    [17] CB 46.8 – 47.

    [18] SZBEL vMinister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165 [43]. See also Tribunal’s reasons at [44], [49] – [52], [57] – [59], [61] – [65] and [70].

    [19] CB 119 at [53], and at [54] – [57].

    [20] Even if this were not the case, it remains open to this Court to follow authority in the Federal Court prior to NBKB which stands for the contrary proposition:  see SZDFZ vMinister for Immigration and Citizenship (2008) 168 FCR 1 per Flick J at [20] and SZFPA vMinister for Immigration and Citizenship [2008] FCA 1220 per Stone J at [11].Neither of these authorities were considered by McKerracher J in NBKB.

    [21] See SZJGV v Minister for Immigration and Citizenship (2008) 170 FCR 515; 247 ALR 451 at [10], [24], which requires that all conduct the subject of a s 91R(3) finding be entirely disregarded. At the time of filing these submissions, the Minster’s appeal to the High Court in SZJGV has been heard by the High Court. The decision is reserved.

1. Essentially, I agree with those submissions.

2. The material in the court book (which includes the first, second and third Tribunal decisions, a s.424A letter and response by the applicant, and a purported “detention certificate”) reveal that the applicant’s factual claims evolved over time. However, the material reveals that even in 2008, the knowledge displayed by him in relation to Falun Gong was “extremely superficial”.[22]

   [22] CB 125 at [90]

3. At the time of the first Tribunal hearing on 6 October 2005 the applicant had not practised Falun Gong in Australia. However, after the first remittal to the Tribunal the applicant claimed in his response dated 21 August 2006 to the Tribunal’s s.424A letter that “I have joined a practice group now”.[23] As the second Tribunal member noted, “no corroborative evidence” was provided to that effect,[24] and that remained the case throughout the review.

   [23] CB 79

   [24] CB 88.6

4. The applicant failed before the Tribunal on the present occasion because he was not believed.  The Tribunal did not accept his claim to be a genuine Falun Gong practitioner.  Having rejected that essential claim, his claims of a well-founded fear of harm by reason of being a practitioner fell away.  I accept that at the second Tribunal hearing, the essential and significant issue of the credibility of the applicant's claims, was squarely raised.  The concerns about the applicant’s credibility and the general nature of his claims formed part of the delegate’s decision (which was the decision under review by the Tribunal).  That concern and the decisions of the previously constituted Tribunals were also raised by the Tribunal during the course of the hearing.  I refer in particular to [44], [52] and [59]-[71] of the Tribunal decision[25]. The applicant could have been left in no doubt whatsoever that his credibility was squarely in issue and that a principal concern for the Tribunal was the applicant's poor knowledge of Falun Gong, its history and its philosophy. Accordingly, the applicant was on notice of the determinative issues on the review and no breach of s.425(1) is apparent[26].

   [25] CB 118

   [26] SZBEL v Minister for Immigration (2006) 21 ALR 592

5. The Minister formally and protectively submits that NBKB was wrongly decided. Special leave to appeal to the High Court has been sought, but the High Court has not yet ruled on it. It appears that the second remittal of the proceeding to the Tribunal by Raphael FM on 14 August 2008 was because of the failure of the second Tribunal to conduct a hearing. That obligation appears to have arisen because of the failure of the second Tribunal to deal with, at a hearing, further evidence provided by the applicant to the second Tribunal. That further evidence relevantly related to the applicant's conduct in Australia as well as his attempts to seek to explain his conduct in China. On the occasion of the second hearing the Tribunal expressly alerted the applicant to the provisions of s.91R(3) of the Migration Act[27].

   [27] See the Tribunal decision at [53], CB 119

6. In my view, there was no determinative issue in the present decision of the Tribunal about which the applicant was not on notice at the second Tribunal hearing.

7. As to the Tribunal's compliance with s.91R(3) of the Migration Act, I incorporate in this judgment [97] of the Tribunal's reasons:[28]

   The Tribunal notes that, in response to a letter sent by T2, the applicant claimed that, subsequent to the first hearing, had had joined a practice group in Australia.  He wrote the letter in which the claim was made on 21 August 2006, more than two years ago.  Even had he been pursuing Falun Gong for two years in Australia for reasons related to a genuine belief in Falun Gong, the Tribunal would have expected him to have ha significantly more knowledge of Falun Gong than he displayed at the second hearing.  Because of his lack of anything more than a superficial understanding of Falun Gong and its philosophy, the Tribunal has concluded that the applicant’s conduct in joining a Falun Gong practice group in Australia after the first hearing was for the purpose of strengthening his claim to be a Falun Gong practitioner and for no other purpose.  In these circumstances, the Tribunal is obliged, by the provisions of s.91R(3) of the Act, to disregard that conduct.

   [28] CB 126

8. The issue is whether the Tribunal's reference to the applicant having joined a Falun Gong practice group in Australia after the first hearing, for the purposes of strengthening his claims, discloses an error in the Tribunal's reasoning for the purposes of s.91R(3). Where an applicant puts in issue his or her conduct in Australia and the Tribunal needs to consider that conduct for the purposes of s.91R(3), it is the entirety of that conduct which must be considered. I confirm the views I expressed in SZGYT.

9. However, in the present case, it does not appear to me that the applicant asserted anything more than having joined a Falun Gong practice group in Australia.  It does not appear to me that there was any asserted ongoing conduct in Australia as a result of having joined that group that the Tribunal needed to consider.  On that basis, this case is distinguishable from SZGYT.

10. I conclude that the applicant has failed to establish a case of jurisdictional error by the Tribunal.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

11. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,865. The applicant did not make any submission bearing on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  9 June 2009