SZJRT v Minister for Immigration

[2007] FMCA 1584

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRT v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1584

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong participation – disbelieved by Tribunal – Tribunal reference to purported PSB documents accompanying the visa application – did not use “information” within s.424A(1) – applicant’s responses at hearing also “gave” the documents to the Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 424A(3)(b), 474, 476

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZHYP v Minister for Immigration & Citizenship [2007] FCA 183

Applicant: SZJRT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3344 of 2006

Judgment of: Smith FM

Hearing date: 23 August 2007

Delivered at: Sydney

Delivered on: 23 August 2007

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Counsel for the First Respondent: Ms R Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3344 of 2006

SZJRT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 15 November 2006, which has been set down for final hearing today under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 11 October 2006 and handed down on 2 November 2006. The Tribunal affirmed a decision of a delegate made on 18 July 2006, refusing to grant a protection visa to the applicant.

2. The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to remit the matter to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.

3. The applicant entered Australia in March 2006, relying upon an Australian visa in a Korean passport showing a substituted photograph of the applicant.  The applicant also had in her possession a Chinese passport.  The two passports, when examined by the Tribunal, showed that she had left the People’s Republic of China legally under her Chinese passport and had entered Malaysia, where she had stayed for four days.  She then travelled to Korea, and thence to Japan and Australia on the Korean passport.  

4. On 20 April 2006 an application for a protection visa was lodged on her behalf by an agent, Esther Yu.  The application was accompanied by copies of pages from the two passports, a copy of a Chinese identity card relating to the person shown in the Chinese passport, and some photographs of the applicant passing out documents in the streets of Sydney.  A short document purporting to be a statutory declaration contained the applicant’s claims for protection in Australia against return to the People’s Republic of China. 

5. The applicant claimed that she had started practising Falun Gong “since July 2003”.  She said: 

   3.In [date] 2005 the Chinese authority discovered that I am a Falun Gong practitioner and had been called by [location] PSB to their office.  I went to the PSB office on [that date] afternoon, then had been detained.  (I didn’t know the PSB knew I practiced Falun Gong before I went to their office). 

   4.I had been forced to write a confession and given the warning.  My husband had paid the fine and giving the guaranty, then I had been released on [10 days later]. 

   5.On [date] December 2005, my fellow practitioner had been arrested by the PSB.  I learned that some one dope our activities in to the PSB (printing and distributing Falun Gong materials), so I ran away and hid in my friend’s place in [location] until I left China. 

   6.Since I arrived Australia, I have practiced Falun Gong all the time, and I have participated in most of the Falun Gong activities openly, because I would like to tell the truth to the whole world that how the Chinese authority persecuted Falun Gong from my own experiences and hopefully through the international pressure, could stop the Chinese Authorities continues persecuting Falun Gong practitioners in China. 

   I wish the Australia Government would let me stay, because as the truth Falun Gong practitioner, I can’t give up my faith. 

6. The Department of Immigration later received a letter from the applicant’s agent attaching further documents in support of her claim.  These included copies and translations of what were claimed to be two summonses requiring the applicant to report to the PSB on a date in May 2004, one year earlier than when she claimed her questioning and detention to have occurred.  The two documents identified the applicant by name, and also referred to her place of residence. 

7. Also included were two documents which were also claimed to be official documents of the PSB, being documents purportedly issued in March 2006 after the applicant’s arrival in Australia.  The first was a notice recording: “a decision has been made to mobilise the town community to assist the police to locate and arrest alleged criminal [the applicant’s name].  Please ensure the implementation of the decision stated in this circular”.  The second was an arrest warrant, which said: 

   Since 2004, this criminal, under disguise of “Freedom of Belief”, has been involved in recruiting young and middle age females to practice Falun Gong, an evil cult banned by the order of Central Party Committee and State Council.  She also unlawfully spread the reactionary ideology of “Western Democracy and Freedom”, opposed the socialist system, smeared and attacked the Government and Party leaders. 

8. A purported statutory declaration of a witness to the applicant practising Falun Gong and taking part in the activities of Falun Gong in Sydney was also presented. 

9. The delegate gave several reasons for not accepting that the applicant would be persecuted on return to China.  In the course of her statement of reasons she referred to the four claimed official documents: 

   In support of her claims she submitted photocopies of the originals and English translations of the 2 Summons issued by [location] City Public Security Bureau on 11/05/04 and 2 Arrest Warrants issued by [location] City Public Security Bureau on 20/03/06 and 30/03/06 respectively.  In the absence of an examination of the original documents, the authenticity of these documents cannot be verified.  The documentary evidence provided by the applicant is not conclusive and hence, I am unable to make a definitive finding in relation to the applicant’s claims of persecution. 

   The delegate also referred to the travel information shown in the applicant’s Chinese passport, which suggested that in fact she was not of interest to the authorities. 

10. On appeal to the Tribunal, the applicant attached to her application for review a copy of the delegate’s decision which, as I have noted, referred to the supporting PSB summonses and warrant documents.  She also attended a hearing held by the Tribunal on 6 October 2006.  She presented some further written and witness evidence as to her involvement in some Falun Gong activities in Sydney, as well as showing the Tribunal her two passports.  A transcript is in evidence before me. 

11. The ground of review relied upon by her counsel today alleges a failure by the Tribunal to comply with the requirements of s.424A(1) of the Migration Act, in relation to information taken by the Tribunal from the four PSB document. Under s.424A(3)(b), no obligation would have arisen if the applicant “gave” the information to the Tribunal for the purposes of her application for review. I must therefore consider whether the applicant either re‑presented, or adopted in her evidence given to the Tribunal the contents of, the allegedly official PSB documents to which I have referred above.

12. The transcript of the hearing from pages 12 through to 15, and also at page 30, records questioning by the Tribunal as to how the applicant could have left China, if indeed she was a person of adverse interest to the PSB.  At the start of its questioning the Tribunal said:  

    TRIBUNAL MEMBER:        Among the documents that you have presented to the Tribunal Miss [applicant] is a number of documents, we will put it this way, I’ve got the copies of them, I haven’t got the originals, of a variety of documents which have been issued by the authorities, the Chinese security authorities.  According to you they were lodged, excuse me a minute, among those documents is an arrest warrant dated 20th March 2006 in which the details that are on here basically correspond with the details which are on that arrest warrant, would you agree? 

    APPLICANT:          I do not understand.  Can you repeat it for me at please? 

    The Tribunal then identified the four documents, and some of the personal details appearing on them.  It then said:  

    TRIBUNAL MEMBER:        Now, you’ve claimed that you’ve been a Falun Gong practitioner for some time and the documents that you have given the Tribunal indicate that you had been drawn to the attention of the authorities as late as 2004 about your Falun Gong activities, your claimed Falun Gong activities.  Could you tell me is that true, what’s written there in that document? 

    APPLICANT:          Yes they are true. 

    TRIBUNAL MEMBER:        Thank you for that.  Could you tell me now how it would be possible for you in a country like China to pass through the regular Customs or Immigration authorities without problem to go on a trip to Malaysia?  

    (emphasis added) 

13. Counsel for the Minister invites me to find from the Tribunal’s reference to the documents at this part of the transcript that the applicant had presented to the Tribunal further copies of the PSB documents.  There is no other evidence that she did this in the documents from the Tribunal’s files which have been reproduced in the Court Book, including the Tribunal’s record of the hearing which usually records documents which are presented at a hearing.  Nor are there any further copies on the file, other than copies deriving from the Department’s file which had been originally presented to the Department.  The applicant has sworn an affidavit denying that she gave copies of these documents to the Tribunal itself, and was not cross‑examined on that statement. 

14. Counsel for the applicant accepted that he had an onus of proof as to whether an applicant did not “give” information to a Tribunal, so as to give rise to the exclusion under s.424A(3)(b) (see SZHYP v Minister for Immigration & Citizenship [2007] FCA 183 at [9] and [11]). He submitted that I should prefer the applicant’s evidence.

15. Considering the transcript alone, I am not confident that the Tribunal was not speaking loosely about the copies of documents which in fact it had found in the Department’s file, when it commenced and continued its questioning of the applicant about their contents and implications.  On all the evidence, I am prepared to find on the balance of probabilities that the applicant did not physically re‑present copies of these documents to the Tribunal in the course of her application for review. 

16. However, counsel for the Minister’s alternative submission was that the applicant, in her responses to the Tribunal’s questions about the implications of these documents, adopted them as part of the case she wished the Tribunal to consider, and in that sense “gave” any information contained in the documents to the Tribunal for the purposes of her application for review.  

17. As I have indicated, the delegate’s decision record made clear that these documents had formed part of the material initially presented to the Department to establish a history which she invited the Department to accept.  By forwarding a copy of this reasoning with her application for review, the applicant implicitly was also inviting the Tribunal to address and accept the case which she had previously presented to the Department. 

18. In that context, the Tribunal’s reference to these documents at the hearing, in my opinion, shows it inviting the applicant to affirm her reliance on the contents of those documents.  As I have extracted above, the Tribunal clearly identified the particular documents it was discussing with her, being the two 2004 summonses and the two 2006 arrest warrant documents, including by reading parts of them to her.  It then put to her: “is that true, what’s written there in that document?”, and the applicant said: “yes they are true”.  The Tribunal then put to her its concern arising from the documents that she would not have been permitted to depart China, and she gave certain explanations which will appear further below.  

19. In my opinion, what happened in relation to these documents at this point in the hearing accords with the analysis of Young J in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195. From the applicant’s perspective the contents of the documents formed an important part of the claims and materials which she originally presented in support of her history of persecution and fear of future persecution. The applicant’s reliance on those documents again before the Tribunal was in a sense “uncontentious”, and I consider that the present situation fits the analysis of Young J at [59]‑[61] of NBKT.  In my opinion, the applicant gave to the Tribunal, in her response to the Tribunal’s initial identification of the documents, an affirmation of her reliance on the truth of those documents, and an invitation to the Tribunal to rely upon their contents (compare also Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [17]).

20. I therefore find, if it is relevant, that the applicant “gave” the four purportedly official PSB documents to the Tribunal as part of the material she relied upon in her review, so as to come within the exclusion in s.424A(3)(b) from any obligations under s.424A(1) in respect of the Tribunal’s use of information found in those documents.

21. A further issue, which arises before I need to rely on that finding, is whether the Tribunal’s ultimate reasoning for affirming the delegate’s decision reveals that in fact it did take “information” from the documents, which it used as “the reason, or a part of the reason” for affirming the delegate’s decision so as to give rise to any obligations under s.424A(1) in relation to prior information.

22. The Tribunal’s reasoning about the applicant’s refugee claims led it to a clear conclusion in relation to the applicant’s claimed history in China: 

    The Tribunal has examined the full circumstances of the applicant’s claim to be a persecuted FG practitioner in the PRC and is not satisfied with the veracity of her claims. 

    The applicant has claimed that she fled the PRC for reasons of persecution as a member of FG.  The Tribunal is not satisfied from all her evidence that the applicant was ever a Falun Gong practitioner in China.  The Tribunal is similarly not satisfied with her recounting of the details of her travel itinerary and has found her to have poor credibility as a witness.  The Tribunal has country information indicating that forgery and falsification of documents in the PRC is commonplace.  Therefore, for all these reasons, the Tribunal does not accept that the documents that she has submitted (which purport to be documents issued as summonses or arrest warrants by the Chinese authorities based on her FG activities) are truthful and valid. 

    The Tribunal strongly believes from her own account and country information that her claim to have been detained by the authorities in May 2005 is false because she was later issued with a valid PRC passport in Fujian province on 25 December 2005 and even obtained a visa in Beijing on 12 February 2006 for Malaysia which she entered on 28 February 2006.  She claims that she exited the PRC thanks to successful bribery of public officials by her cousin and unnamed others.  The Tribunal is not satisfied with this explanation and finds this claim to be fanciful or implausible under the circumstances. 

    The Tribunal finds on the full circumstances of the evidence before it that the applicant’s refugee claims are bogus.  The Tribunal is not satisfied that she was the subject of police detention and continuing interest nor that it ever occurred or that she was, all the while in the PRC, a genuine and committed Falun Gong practitioner.  The Tribunal is not satisfied she would be persecuted on return to PRC. 

23. In my opinion, it is clear from these concluding paragraphs that “the reason” for the Tribunal affirming the delegate’s decision was its lack of satisfaction “with the veracity of her claims”, including her purportedly corroborative documents.  The Tribunal’s conclusions themselves do not provide any other reason. 

24. Counsel for the applicant argues, however, that the Tribunal’s dissatisfaction with the veracity of the applicant’s claims itself derived from reasoning which made use of information gleaned from the alleged PSB documents in a manner which would meet the language of s.424A(1) in its reference to “information”. 

25. In the Tribunal’s reasoning leading to the conclusions I have extracted above, it referred to a number of other points cogently casting doubt on the applicant’s veracity.  It first referred to its attempt to discover the extent of her knowledge of Falun Gong philosophy and practice.  It formed a conclusion: 

    The Tribunal is not satisfied (from its questioning of her) that the totality of her FG knowledge is indicative of a person who claims to be a long term public and private FG practitioner in the PRC. 

    … 

    The Tribunal is not satisfied from her answers in the hearing that she was a genuine FG practitioner in China nor (from the evidence presented orally) has she evidenced that she is a particularly vigorous practitioner in Australia despite her claims to be so. 

26. A second reason for the Tribunal’s lack of satisfaction with the veracity of the applicant’s claims arose from its questioning of her about her travels leading to her arrival in Australia, which it referred to as “the convoluted itinerary that she used to leave the PRC legally”.  The Tribunal found that her responses to the Tribunal’s questions “were deliberately vague or contradictory”.  It said: “the Tribunal finds her answers to enquiries about her flight itinerary to be unsatisfactory and deliberately vague and finds as a result that she is a person of poor credibility as a witness”.  

27. The Tribunal’s third reason leading to its lack of satisfaction with the veracity of her claims, concerned her ability to depart China on her own passport.  It said:  

    The Tribunal has presented the applicant with country information concerning PRC law on FG practitioners.  This information was elaborated in the hearing along with Department information on visa issue protocols for PRC citizens and the applicant’s own claims of PSB harassment in her home town.  This information flies in the face of the applicant’s claim to have fled China free of harassment at her departure point in Beijing.  From the claims of the applicant to be a well known FG practitioner and under the circumstances of PRC law and vetting protocols for its citizens who are bona fide travelers – it would appear to be nigh on impossible for her to have exited Beijing airport without drawing the attention of the authorities.  That scenario is predicated, of course, on the premise that the applicant’s documents were not bogus (as are many PRC documents according to country information) and that she was, as claimed, a genuine FG practitioner in the PRC. 

    The Tribunal is not satisfied that her insistent claim that someone was able to bribe the guards to effectively allow her smooth departure from Beijing is true.  The veracity of this claim must be juxtaposed firstly with her unsatisfactory answers to questions about her flight itinerary and also her equally unsatisfactory responses to questions about the nature and practice of FG.  There is also a paucity of corroborative evidence from any witnesses to her travel itinerary and her exit from China as well as her alleged FG activities in [location] province. 

    The Tribunal observes from country information that the applicant’s use of a valid PRC passport with her ID details corresponding with the ID details on her claimed PSB summonses would (under Chinese Law) ordinarily disenable her from exiting the PRC as a normal airline passenger and, in fact, her departure would have immediately been drawn to the attention of the airport PSB authorities.  The applicant was not leaving from some remote country aerodrome but from the capital city of the PRC.  Furthermore, the Tribunal is not satisfied that someone in the PRC could successfully have facilitated her complicated airline ticket, passport substitution and overseas hotel accommodation in Malaysia without drawing the attention of the authorities.  The applicant subsequently claimed this person had also previously organized to give her a photo‑substituted ROK passport near the Incheon airport, Seoul transit lounge toilets through a pre‑arranged intermediary.  Under the circumstances of her poor credibility as a witness the Tribunal finds this scenario to be dubious and an unlikely proposition. 

1. Counsel for the applicant argues in support of a failure to comply with s.424A(1), that the reasoning revealed in these paragraphs indicates a use of information from the PSB summons documents as a reason for affirming the delegate’s decision. He argued that the Tribunal found that the PSB documents contained “ID details”, and used that finding as a reason for disbelieving her claim to fear persecution.  He argued that the Tribunal’s reference to the “ID details on her claimed PSB summonses” showed more than the Tribunal assessing the consistency and cogency of the material presented by the applicant in support of her refugee claims. 

2. Counsel for the Minister argued that the Tribunal’s reference to the “ID details on her claimed PSB summonses” did not use “information” as “the reason, or a part of the reason” for affirming the delegate’s decision, within the meaning of s.424A(1) as discussed in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26. She submitted that the Tribunal only engaged in a “subjective appraisal” of the material presented by the applicant with her visa application, so as to identify “doubts” or “inconsistencies” giving rise to an adverse opinion about the credibility of the claims and of the material presented in support. She submitted that a proper understanding of what was said in the High Court in [17]‑[22] excluded any obligation under s.424A(1) in this case.

3. I accept this submission.  In my opinion the reasoning of the Tribunal for affirming the decision is of the same character as was identified in SZBYR.  At [18], the majority judgment referred to a situation where “the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the [applicant’s] evidence arising from inconsistencies therein”.  It implied that not only was the Tribunal’s assessment of inconsistencies in an applicant’s evidence not “information within the meaning of par (a) of s 424A(1)”, but also that the information upon which that assessment was made, that is, the contents of her documents showing the inconsistencies, did not make use of “information” as “the reason, or a part of the reason” for affirming the delegate’s decision.  

4. In my opinion, that is all that has happened here.  It is plain in the language used by the Tribunal that it has not made a positive finding which accepted the authenticity or evidentiary truth of the documents presented by the applicant, nor any of their contents.  The point made by the Tribunal referring to these documents was, in my opinion, no more than that the contents was inconsistent with other parts of the applicant’s claims in support of her visa application, which implied an ability to leave China free from harassment at her departure point.  

5. To the extent that the Tribunal positively accepted “information” which provided the “undermining” of the applicant’s refugee claims, that information was the general country information concerning the likelihood that a person who had been suspected and interrogated in the manner claimed by the applicant would be permitted to leave China on her own passport. But that information was expressly excluded from obligations under s.424A(1) by s.424A(3)(a).

6. For the above two reasons, I do not consider that the sole ground of review argued on behalf of the applicant today is made out.  I do not consider that the Tribunal’s reasons reveal any use of “information” giving rise to an obligation under s.424A(1). I also consider that, in any event, the contents of the PSB documents were part of the material which the applicant “gave” to the Tribunal for the purposes of s.424A(3)(b).

7. I must therefore dismiss the application.  

I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  28 September 2007