SZJRX v Minister for Immigration
[2007] FMCA 1745
•24 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1745 |
| MIGRATION – Review of decision of RRT – whether s.424A letter issued by Tribunal clearly puts the applicant on notice of the matters in issue. |
| Migration Act 1958, ss.91R, 424A Federal Court Rules |
| SZBEL v Minister for Immigration [2006] 231 ALR 592 |
| Applicant: | SZJRX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3365 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 September 2007 |
| Date of last submission: | 24 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $2,450.00.
The name of the first respondent be amended to read the Minister for Immigration & Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3365 of 2006
| SZJRX |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
First Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 21 March 2006 and applied to the Department of Immigration and Multicultural Affairs for a protection (Class XA) visa on 28 March 2006. On 13 June 2006 a delegate determined to refuse a visa and notified the applicant of that decision on 13 June 2006. On 14 July 2006 the applicant applied for review of the delegate’s decision.
The applicant attended a hearing before the Refugee Review Tribunal on 21 August 2006. On 23 August 2006 the Tribunal wrote to the applicant a letter as required by s.424A of Migration Act 1958 (the “Act”). On 13 September 2006 the applicant responded to that letter in writing [CB 54]. On 21 September 2006 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 17 October 2006.
The applicant’s claims to be a person to whom Australia owed protection obligations are found in the statement provided with her application for a protection visa [CB 19]. The applicant stated that during the 1989 pro-democracy movement she was a student who went to Tiananmen Square and witnessed the crack-down that took place at that time. She stated that she disagreed with the political opinions of the Chinese government. In 1997 she became a Falun Gong member and claimed that she became very important in the Falun Gong association in Beijing.
She joined a delegation trying to persuade the Chinese government to accept Falun Gong and held a demonstration and related activities in Beijing. She says, “The police disbursed us using the army,” and she was taken to a police station for interrogation. She said that she suffered persecution from the Chinese government because of her belief.
At the end of 2005 police arrested several key members of the Falun Gong in Beijing and she was told that she would be in danger so she travelled to Australia to avoid further persecution.
At [CB 64] the Tribunal commented:
“At the hearing the applicant provided the Tribunal with her passport. The Tribunal confirmed that the applicant’s passport was issued in her own name and re-issued on 15 May 2006 at the Chinese Consulate in Sydney. The Tribunal asked whether or not the applicant had any difficulty dealing with the officials of the Consulate and she replied that she had not. The Tribunal suggested that if she feared persecution by the Chinese Government, it seemed unusual that they would allow her first to leave the country on a passport issued in her own name, and secondly not to take any interest in her when she approached the Chinese Consulate to renew her passport. The applicant suggested that she had been gone a short time and perhaps the Chinese Government was still unaware of her departure. The Tribunal put this matter to the applicant again in a letter and the applicant claimed that she was issued “only a travel document, it is not a passport.” However, the document the applicant gave the tribunal at hearing, was in fact a passport and in any case, the applicant’s response does not address the central point at issue which is that she was able to approach the Chinese Consulate without any incident”.
The Tribunal also pointed out a number of problems with the applicant’s claim to have been a Falun Gong practitioner of some seniority. She appears not to have known too many of the exercises and then told the Tribunal that she wasn’t herself a practitioner but merely a supporter of the activities of some of her friends.
“She said that she had heard that when Falun Gong practitioners were interrogated they were made to reveal the identities of others and claimed she was afraid. When the Tribunal asked why the authorities would be interested in targeting the applicant, she said, “To tell the truth, they would not be interested in me,” but they were interested in her friends and classmates.”
In its findings and reasons the Tribunal found that the applicant was not a Falun Gong practitioner and was never a member of the Falun Gong movement or of Falun Gong or Falun Dafa study groups. The Tribunal went further and determined that it could not accept that she had friends who were involved in the movement and that she supported them. As a result, the Tribunal came to the conclusion that she was not a person who would suffer persecution if she returned to China now or in the foreseeable future.
The Tribunal was concerned that the applicant was unable to give any explanation of the demonstration at which she claims she was arrested and went on to deal with her claim concerning the Tiananmen Square incident. Whilst the Tribunal accepted that in appropriate cases an applicant may have sufficiently strong convictions, the suppression of which, in order to avoid harm, might constitute persecution, it was unable in this case to be satisfied from the evidence given by the applicant that she held convictions of that type.
On 29 December 2006 the applicant filed an amended application in this court in which she claimed that the Tribunal relied on incorrect independent information about her passport, stating:
“As a matter of fact, I paid a large sum of money for the issuing of my passport. The independent information will not apply to my situation.”
There does not seem to me to be any other indication concerning the payment for her passport referred to in the green book so if this is additional evidence it was not before the Tribunal. The applicant does not explain which passport she refers to, the one she arrived upon or the one she renewed or the one that was given to her on renewal. In any event the reliance upon incorrect information would appear to be a mistake of fact (if it was true) and this would not involve jurisdictional error.
The amended application goes on to suggest that the Tribunal’s satisfaction that she was not a refugee was not based upon rational and logical foundations. Regrettably, there is no particularisation to this claim, and, of course it is not for the Tribunal to determine that a person is not a refugee, it is for the applicant to satisfy the Tribunal that she is. It was this lack of satisfaction that grounded the Tribunal’s decision.
The next matter was that the Tribunal did not provide the applicant with adequate particulars of the independent information. It is not entirely clear from this what the applicant is referring to but I take it that she refers to the information contained in the s.424A letter. In regard to that letter I would say this. The s.424A letter identifies two issues:
1.The Tribunal asked applicant if she had any trouble dealing with officials at the Chinese Consulate in Sydney when the applicant’s passport was issued to her. The Tribunal suggested that if she feared persecution by the government it seemed unusual that she could leave the country on a passport issued in her own name and, secondly, that it was unusual that the Consulate took no interest in her in Sydney when she went to renew the passport.
2. The Tribunal asked her if she would like to expand on her claim that she was arrested and interrogated. There are various claims that the Tribunal identified that she made:
“You said that you were observing a demonstration when you were taken with many others to a police station where you were detained for 48 hours. You claim that you called your parents on your mobile phone and they came and got you out. You were unable to explain why in particular you were arrested or what the authorities wanted with you. You do not claim to have been arrested again since that time. You claim that this arrest was sometime in 2001 but did not give a specific date.”
The statement below is set out beneath each of these issues in the letter:
“Please comment. It is important that you address this issue carefully and substantively. If the Tribunal is not satisfied with your explanation, it may lead the Tribunal to draw adverse inferences, or make an adverse credibility finding which may, in turn, form part of the reason the Tribunal finds that you are not a refugee.”
In its findings and reasons, the Tribunal did not accept the applicant’s claims relating to the second issue:
“Given the applicant’s inability to explain the circumstances surrounding her arrest and detention, or to specify the nature of the demonstration, the Tribunal rejects the applicant’s claim that she was ever arrested, detained, interrogated or persecuted by the Chinese authorities, whether for reasons of her claimed support for or involvement in Falun Gong, or for any other reason.”
There appears to be no reference in the Tribunal’s findings and reasons to the passport issue (the first issue).
Summary of legal principles
In SZBEL v Minister for Immigration [2006] 231 ALR 592 at [32]-[34], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated the general obligation that, as a matter of procedural fairness, the applicant must be put on notice that his/her account would be rejected as implausible by the tribunal:
“[47] It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account that the tribunal considers may be important to the decisions and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
In SZEOP v Minister for Immigration (2007) FCA 807 at [27] Rares J made the following comments in relation to Minister for Immigration v SZGMF [2006] FCAFC 138:
“The Tribunal had written a letter under s 424A informing the applicant for review that two particular matters might undermine his general credibility and this could cause two documents he had given to the Tribunal to support his case to be undermined. Branson, Finn and Bennett JJ said that the obligation imposed on the Tribunal by s 424A relevantly had two aspects: first, to give an applicant for review particulars of any information the Tribunal considered would be the reason or part of the reason for affirming the decision under review, and secondly, to ensure that as far as reasonably practicable he or she understood why the information was relevant to the review.”
In SZGMF [2006] FCAFC 138 Branson, Finn and Bennett JJ commented that the Tribunal must “state explicitly the relevance to the review of the information concerning the respondent’s letters of support”. In this case, the s.424A letter did not meet these requirements because “of the opaque nature of the particulars of the information provided to the respondent by the section 424A letter” the use that the Tribunal could make of the information as particularised was not self-evident. The information, as particularised, referred generally to the fact that “many members of the Awami League are prepared to offer such documents”, but did not state explicitly that the respondent’s documents were in doubt in this regard.
The court held:
“[43] In our view, it was reasonably open to the respondent to conclude from the s.424A letter that the information which the Tribunal had received was information about a class of documents rather than information specifically about his letters of support. For this reason, he may not have understood that the relevance of the information to the Tribunal’s review was that it caused the Tribunal to disbelieve or doubt the content of his letters of support.”
In SZEOP the Tribunal relied on information relating to the applicant’s delay in making an application as “a basis for concluding that he had fabricated all his claims, including his claims to be a homosexual” [34] per Rares J. The Tribunal, in its s.424A letter, had stated that the delay was relevant only because “it casts doubt on the genuineness, or, at least, the depth, of [the applicant’s] claimed fear of being persecuted” [10]. Rares J stated at [47]:
“The natural justice which the Parliament has said an applicant for review is entitled to receive from the Tribunal in a situation such as the present includes, as far as is reasonably practical, that the applicant is told by the Tribunal why the information is relevant to the review. The Tribunal does not fulfil the obligation imposed by s.424A(1)(b) if it leaves it to chance that he ought to appreciate that relevance from the course of the hearing, or from other circumstances surrounding the way in which the review is being conducted.”
In this case the Tribunal identifies two issues in its s.424A letter that would be important to the decision. Though the Tribunal may not have used the exact words, “Please explain why the account should be accepted,” the wording in the s.424A letter asking the applicant to comment on the two issues identified and its comment that “If the Tribunal is not satisfied with your explanation it may lead the Tribunal to draw adverse inferences or make an adverse credibility finding which may, in turn, form part of the reason the Tribunal finds that you are not a refugee,” adequately conveys the relevance of the information to the applicant.
The Tribunal, in its findings and reasons, indicated that a reason for decision was that the applicant was unable to explain the circumstances surrounding her arrest and detention and to specify the nature of the demonstration. This indicates that the Tribunal was not able to reach a state of satisfaction in relation to the applicant’s claims: SZEOP at [24]; SZHSQ v Minister for Immigration [2006] FCA 1295 at [42]-[43] per Rares J; SZEZI v Minister for Immigration [2005] FCA 1195 at [29] per Allsop J. This is not a case where the relevance to the review of the information is stated generally rather than specifically nor is it a case where the information is relevant to the decision in a manner not stated by the letter.
Finally, the applicant complains that the Tribunal was biased and did not consider her application according to s.91R of the Act. An allegation of bias is a serious matter and I note that no particulars have been provided as required under the Federal Court Rules. It is not something which can be established by mere assertion and the applicant has provided no particulars today of such an allegation. It is not even clear whether the bias claim is actual bias or ostensible bias, but having read the Tribunal’s decision I am satisfied that neither of those matters could be made out on the papers and no other evidence has been provided.
In regard to the claim that her application was not considered pursuant to s.91R of the Act, I am at a loss to understand it. Does the applicant suggest that the Tribunal must recite the wording of s.91R in some formulaic way and then proceed to deal with each of the subsections therein? If she does it is clearly a requirement that is not imposed either by the Act or by any necessity for procedural fairness. The applicant raised the s.91R point again today but all she said in connection with it was that it did not consider her claim in accordance with s.91R or with regard to sufficient information. This is a formulation that provides me with no assistance.
I am satisfied that the Tribunal did not commit any jurisdictional error in the way in which it reached its conclusions concerning this application. As Mr Snell says in his helpful written submissions:
“The Tribunal was not satisfied as to the credibility of the applicant’s claims based upon her responses given to the Tribunal at the hearing. The evidence given by the applicant at the hearing falls within the exception contained in s.424A(3)(b) of the Act. The Tribunal’s findings of fact were open to it and no error is apparent in the way the Tribunal arrived at those findings. That the applicant is displeased with the conclusions to which the Tribunal came is not indicative of jurisdictional error.”
I accept that submission. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $2,450.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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