SZJXO v Minister for Immigration - [2007] FMCA 1103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1103

MIGRATION – RRT decision – Chinese applicant claimed persecution for Falun Gong activity – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), ss.91R(3), 424A(1), 425(1), 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant:

SZJXO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3885 of 2006

Judgment of:

Smith FM

Hearing date:

2 July 2007

Delivered at:

Sydney

Delivered on:

2 July 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms A Nanson

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3885 of 2006

SZJXO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 22 December 2006, in which the applicant seeks orders that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 November 2006 and handed down on 30 November 2006. The Tribunal affirmed a decision of a delegate made on 19 July 2006, refusing to grant a protection visa to the applicant.
The application was transferred into my docket after several listings before a Registrar. The applicant was given an opportunity to file an amended application and further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. He has been sent advice, and has filed an amended application which I shall consider below.
On 27 April 2007 the applicant appeared before a Registrar and had the assistance of an interpreter. He was told of today's listing, and that his application might be dismissed today if the Court was not satisfied that it raised an arguable case for the relief claimed.
The applicant arrived in Australia in April 2006, and on 17 May 2006 filed an application for a protection visa with the assistance of a registered migration agent. The application included a statement explaining why he sought protection in Australia against return to the People's Republic of China.
He claimed to have started practicing Falun Gong at the beginning of 1997. After it was prohibited by the Chinese Government in 1999, “I witnessed many of my Falun Gong friends were arrested, detained, sentenced to labour camp or jail”. He said:
I joint with some of my Fa-Lun-Gong friends from our home town went to Fuzhuo City, Fuqing City and at our home town to witness the Fa-Lun-Da-FA. I have been arrested and detained for four times by the policeman. Short detain like one day and one night, long one last for ten days and 9 nights. One night in Febraury 2006, I pasted some Fa-Lun- Da-Fa materials on the walls of local government building and local police station. Later, somebody informed against me. On 20 February 2006, four police cars arrived at my home. They ferret out <<nine Commentaries>> and other Fa-Lun-Da-Fa materials. I was at (home) City, (Home) Province at that time and was doing plant business. My aged parents realized catastrophes befall to our family. They rang me and told me to change the number of my mobile phone immediately, do not going home and do not ring home either.
The applicant claimed that his parents raised money to obtain a passport for the applicant to come to Australia, and that the passport which he had used to enter Australia showed a name which was not his true name. He did not present any evidence to prove his true name, nor to corroborate his claim of events in China either to the Department or to the Tribunal. A delegate refused the application on the ground that the applicant had not provided supporting evidence or details and there were “credibility issues” in the applicant's narrative.
On appeal the applicant was further assisted by his agent, who presented a submission addressing the points raised by the delegate, and forwarded some photographs and “handout materials” purporting to show the applicant participating in a demonstration in Australia against the Chinese Government and handing out leaflets.
The applicant attended a hearing on 17 October 2006, to which he was invited by the Tribunal. Neither party has presented a transcript of the hearing, but the Tribunal gives a description in its reasons, and I have no reason not to accept that description.
The Tribunal questioned the applicant about events in China and also his practice of Falun Gong in Australia. It questioned him about the photographs which were submitted to the Tribunal, and expressly put to him that it would be obliged to disregard his conduct if it believed that it was “for the purpose of strengthening his claim to be a refugee” pursuant to s.91R(3). The Tribunal said that it also put to the applicant some concerns it had about his claim to have been released on four occasions after not revealing his true identity to the arresting police. The Tribunal also questioned the applicant about how he had obtained his passport.
Under the heading, "Findings and Reasons," the Tribunal initially addressed the applicant's identity. It was prepared to “give the applicant the benefit of the doubt to the extent of accepting that” he was the person claimed. However, the Tribunal was not satisfied that the fact of using a falsified passport “means that I should accept at face value his claim that he did so because this was the only way that he could leave China”.
The Tribunal said that it was “not satisfied as to the overall credibility of the claims made by the applicant concerning his fear of persecution in China”. It referred essentially to two areas of concern. First, arising from its questioning of the applicant about Falun Gong, the Tribunal concluded:
While he was able to state a number of basic and readily accessible facts about Falun Gong, his responses as to what it meant for him personally were devoid of significant supporting detail and gave no indication that they arose from the authentic first-hand experience of someone who had been involved with the faith for the past nine years, including at times when to do so was to place himself at great personal risk.
The Tribunal said that it had considered the applicant's claims to have been involved in Falun Gong activity since arrival in Australia, but was not satisfied that such involvement “means that he has become a Falun Gong practitioner since arrival in Australia”, and it was not satisfied in terms of s.91R(3). The Tribunal expressly indicated that it had considered the significance of his being photographed at a demonstration.
The second reason given by the Tribunal for doubting the applicant's credibility concerned the plausibility of his claim to have been arrested by the PSP on four occasions in late 1999 and early 2000 when defying the ban on Falun Gong, and then to have been released “soon afterwards because he refused to provide his name and they could not find out who he was.” The Tribunal thought this problem with his account raised “strong doubts as to the accuracy of his other claims to have suffered harm.” It said that it was not satisfied that he had put up posters or that the police were seeking to arrest him.
In relation to the future, the Tribunal said:
Given my findings about the nature and motives for his contacts with Falun Gong in Australia I am not satisfied that there is any reason to believe he would become a Falun Gong practitioner if he returned to China, or that he would have any significant involvement with the Falun Gong faith there. I am not satisfied that there is any reason to believe that he would suffer harm in China in future for this reason.
The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations.
I have considered the procedures and reasoning of the Tribunal, and have not been able to identify any arguable jurisdictional error affecting its decision.
The applicant's amended application repeats and amplifies grounds made in his original application. Four particulars of general allegations of error of law and procedural error are made. The first particular argues:
The Tribunal made a decision relied on incorrect information; or evidences given to the Tribunal has been misstated or misunderstood.
It is argued that the Tribunal made a decision based on a mistranslation of something the applicant said at the start of the hearing when asked how he practiced Falun Gong. This argument was further explained to me today by the applicant reading from a prepared submission. However, the argument faces several difficulties which, in my opinion, leave it with no reasonable prospects of success.
Importantly, the applicant has not presented any evidence giving any substance to the allegation of mistranslation. Secondly, it seems to me that the error, if it occurred, resulted in a minor factual error by the Tribunal and did not give rise to jurisdictional error. It is not apparent to me that the applicant could show that it had any material effect on the Tribunal's reasoning. I am therefore not satisfied that the first particular raises an argument which has any reasonable prospects on the material before me.
The second particular argues that the Tribunal “made a decision including a reasonable apprehension of bias”. It is argued that the Tribunal arrived at a decision which did not fairly assess the applicant's claims, in particular by applying s.91R(3) to the applicant's evidence as to his conduct in Australia, and that the applicant's evidence at the hearing was not properly understood or elicited. It is also suggested that “from the very beginning at the Tribunal's hearing, or maybe from the time before the Tribunal's hearing”, the Tribunal intended to make a decision that he was not a Falun Gong practitioner.
However, the allegations of a closed mind and an improperly conducted hearing are not supported by any evidence presented to the Court, nor can I find support in the Tribunal's reasons. It was the Tribunal's task, ultimately, to assess the credibility of the applicant's claims, and it was bound to consider whether it was satisfied in terms of s.91R(3) in relation to the applicant's conduct in Australia. The fact that it made assessments adverse to the applicant, in my opinion, does not provide any substance to the claim of bias. I am not satisfied that this particular has raised an arguable ground of jurisdictional error.
The third particular of jurisdictional error argues that the Tribunal failed to comply with obligations under s.424A(1). However, the argument which is presented misapprehends the legal effect of s.424A(1). The Act does not require the Tribunal to expose its reasoning processes about the evidence given by the applicant at the hearing, as is argued. I am unable to identify any information relied upon by the Tribunal as part of the reason for affirming the delegate's decision, which was subject to an obligation under s.424A(1).
The fourth particular of jurisdictional error is that the Tribunal “failed to comply with his obligation under the s.425(1).” This section of the Act requires the Tribunal to afford the applicant an opportunity at a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review.” The applicant alleges:
The Tribunal, with his bias, failed to provide me any chances to give my oral evidences in relation to major part of my claims; and the Tribunal failed to allow me to present my arguments against relevant issues arising from my review application.
However, in the absence of a transcript I am unable to give these allegations any substance. The Tribunal's description of the hearing shows that it did put relevant questions to him, allowing him to give his account of events, and also exposed to him the areas where it might have concern. I do not consider that there is any substance shown in the contention in relation to 425(1). Similarly, as I have pointed above, a further allegation of a “significant mistake of the interpreter” is not given any substance by evidence presented by the applicant.
For the above reasons I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application today under r.44.12(1)(a).

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 13 July 2007