SZKBY v Minister for Immigration - [2008] FMCA 562

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBY v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 562

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth) ss.44A, 420, 424A, 424C, 425, 427, 429A

Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365
NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
NBMB v Minister for Immigration and Citizenship [2008] FCA 149

Applicant:

SZKBY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 234 of 2007

Judgment of:

Barnes FM

Hearing dates:

3 March 2008, 28 April 2008

Delivered at:

Sydney

Delivered on:

28 April 2008

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 234 of 2007

SZKBY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 2 January 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in April 2006 and applied for a protection visa. Her application was refused and she sought review by the Tribunal. In essence she claimed to fear persecution as a Falun Gong practitioner. In the statement accompanying her protection visa application she claimed that she was introduced to Falun Gong in 2001 through a friend, joined a group with which she practised and joined their activities despite knowing that the practice of Falun Gong had been outlawed in 1999. She also claimed that she helped the Falun Gong group organise underground activities and that in November 2004 she and a group of other practitioners were detained by the police for some 15 days, mistreated and that she was forced to write a “repentant letter”.
The applicant claimed that after her release she did not give up the practice of Falun Gong, although she changed her place of practise and sometimes practised at home. She claimed that she still engaged in underground activities and that in 2005 the police found out about her activities and again took her to the police station for a warning. She claimed that thereafter she decided to leave China and came to Australia.
As indicated above, the application for a protection visa was refused and the applicant sought review by the Tribunal. She made no further written claims in connection with her application for review. The applicant appeared before the Tribunal to give oral evidence at a hearing conducted by way of video on 17 October 2006. The Tribunal recorded that it was assisted by an interpreter in the Mandarin language and that the applicant was unrepresented.
In its reasons for decision the Tribunal set out the claims in the protection visa application, the applicant's evidence at the hearing and the issues it raised with her about her claims, in particular her claim that she took up Falun Gong sometime after it had been proscribed throughout China. It recorded her evidence at the hearing that, contrary to her claim in her statement accompanying her protection visa application, she did not know Falun Gong had been banned until she was arrested in November 2004. It recorded that she was unable to provide a coherent explanation for her ignorance about the proscription of Falun Gong or for the inconsistencies in her evidence.
The Tribunal also recorded that it put to the applicant that there was an inconsistency between her evidence at the hearing and in her protection visa application. At the hearing she had claimed that in July 2005 she had been arrested and detained in for 15 days. In her protection visa application she had claimed that in July 2005 she was simply warned by the PSB. The Tribunal had regard to her explanation for this inconsistency and also to her inability to explain how her claimed withholding of details of a second arrest in her protection visa application would afford her any advantage or protection if she were to return to China. It also recorded that it put to her the fact that she had travelled to Europe in 2005 but failed to seek asylum in Europe and had discussed country information with her in relation to the difficulty faced by dissidents in Falun Gong members in obtaining passports and travelling outside China. The Tribunal also put to her that a claim that she made at the hearing that she had been penalised by being retrenched after her 2004 arrest was at odds with her claims about employment in her protection visa application and raised some difficulties in her evidence in relation to how she obtained travel approval and documentation.
The Tribunal recorded its questioning of the applicant in relation to Falun Gong principles, precepts and practices and her responses and the fact that when asked to demonstrate any group of the exercises set out in Falun Gong literature the applicant claimed that her back was hurting and she could not stand up. The Tribunal suggested that she demonstrate the exercise movements from her sitting position “since most involved primarily arm movements”. She asked whether she could come back and demonstrate them tomorrow. The Tribunal said that “it could see no reason to delay. If she had been practising these movements for over five years in public and in private, she should have no difficulty providing the Tribunal with a brief demonstration at the hearing. It was happy to wait for her to relax or warm up if she so desired. She attempted one movement which the Tribunal noted resembled a basic action in Tai Chi. However she could not, despite every encouragement and opportunity to do so, demonstrate a single movement shown in the Illustrations and Explanations of the Falun Gong Exercise Movements”.
After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth). In that letter, dated 24 October 2006, it put to the applicant a number of inconsistencies in the evidence she had provided at various stages as well as information from other sources which it said may lead it to question the veracity of her claims. The letter advised that she was to provide comments by 16 November 2006. It is not in dispute that she did not do so.
The court book contains a copy of a letter from the applicant to the Tribunal dated 16 November 2006 in which the applicant stated that she had received the letter of 24 October 2006 inviting comment. She claimed that she had important evidence which her family had posted to her from China to support her claim that would arrive in Sydney by the next day and that she hoped she would deliver the next afternoon or the morning after that. She sought a short adjournment until 22 November to provide that information.
The court book also contains a case note of a telephone conversation between an officer of the Tribunal and the applicant dated 20 November 2006 in which, as the Tribunal recorded in its reasons for decision, the applicant was informed orally that the Tribunal refused the request for an extension of time to comply with the s.424A letter, but that it would consider any material she presented to it prior to finalisation of its decision. The Tribunal recorded that the applicant indicated that she had received documents from China and would be having them translated and would send them to the Tribunal within the next couple of days. However the Tribunal recorded that at the time of finalising its decision no such documents had arrived. It proceeded to make its decision without taking further steps to obtain comments of the applicant.
After setting out independent country information in relation to Falun Gong in China the Tribunal summarised the applicant's claims to have been a Falun Gong practitioner, to have studied and practised Falun Gong exercises, to have organised underground activities and to have been detained on two occasions by Chinese authorities and to have fled China fearing persecution for reason of her activities, beliefs and associations.
However, for reasons which it gave, the Tribunal was satisfied that the applicant was not and had never been a Falun Gong practitioner. It found that she did not have the profile of a committed practitioner either in China or Australia. The Tribunal had regard to the fact that the applicant had admitted that she had never read any of the works of Master Li, that she knew little or nothing of his view of the nature and future of mankind or the role of Falun Gong in achieving salvation and was unable to demonstrate even one of the exercises which country information indicated were fundamental to the practice of Falun Gong.
The Tribunal found that the applicant's ignorance of the most basic precepts and teachings of Falun Gong, its exercises and her admitted failure to read any of the works referred to were difficult to reconcile with her claim to have been a devoted Falun Gong practitioner for five years who had left her homeland and risked her safety to be true to such beliefs and practices. It recorded that it had put this issue to the applicant for comment under s.424A of the Act but that she had failed to respond.
The Tribunal referred to a number of other matters also put to the applicant under s.424A, including the fact that she had made no contact with any Falun Gong groups in Australia and was not even aware of any such group, the fact that her claim about the extent in which the authorities cracked down on Falun Gong after 1999 was not supported by country information and the inconsistency in her claims about when she became aware that the Chinese government had outlawed the practice of Falun Gong, as well as the absence of a coherent explanation for a failure to mention a claimed second period of detention in connection with her original claims and her failure to respond to this when it was put to her under s.424A of the Act.
The Tribunal had regard to the fact that the applicant had no difficulty in obtaining travel documents and permission to travel overseas on two occasions and that she had retained a senior managerial position through the period of her claimed involvement in Falun Gong, contrary to country information about the situation of those who were known Falun Gong practitioners. It also had regard to the fact she had travelled through Europe but had not sought asylum. Considering the applicant's claims cumulatively the Tribunal found that she had suffered no past persecution for any Convention reason and that there was no real chance that she would experience such persecution now or in the reasonably foreseeable future for any Convention reason. It was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention for any Convention reason on the evidence before it.
The applicant sought review of the Tribunal decision by application filed in this Court on 25 January 2007. That application contains generally expressed and unparticularised grounds. She restated in her application that the Tribunal was not satisfied that she had a well-founded fear of persecution for a Convention reason and without elaboration claimed that the Tribunal made an error in this finding and that the Tribunal failed to carry out its statutory duty. In the accompanying affidavit the applicant claimed that the Tribunal failed to consider her claims correctly, but she did not clarify the manner in which she said that this had occurred or the manner in which this was said to constitute a jurisdictional error. No jurisdictional error is established on the unparticularised and generally expressed basis contained in the application and affidavit. Insofar as the applicant seeks merits review, merits review is not available in this Court.
Prior to the time at which this matter was first listed for hearing the applicant had not filed written submissions. When the matter came before the Court on 3 March 2008 it became apparent that part of the applicant's written claims made in connection with her protection visa application were not contained in the Court Book. The hearing was adjourned to enable the solicitors for the first respondent to file a supplementary Court Book containing such missing pages, which they did. No issue arises out of such additional pages. There is nothing in the material before the Court to indicate that the Tribunal in any way misunderstood or failed to deal with the applicant's claims made in connection with her protection visa application.
When the matter was last before the Court the applicant raised for the first time a claim that the Tribunal decision was not fair because she was unfit or not well on the day of the Tribunal hearing. When asked if she had given a medical certificate to the Tribunal she indicated that she did not know how to do that. She also said that the hearing was conducted by video link, that she was in the room alone and was very nervous, that she was not in good health, that the Tribunal had refused a request for an adjournment and that she believed the Tribunal was biased against her. She claimed that she could tell this from the way the Tribunal member looked at her. She claimed that she believed that the Tribunal decision was pre-made and not impartial. She also reiterated her claims of involvement with Falun Gong.
As an adjournment was necessary to enable the solicitor for the first respondent to obtain a complete copy of the file, the applicant was given the opportunity to file and serve any further affidavit evidence, including any transcript of the Tribunal hearing, together with written submissions identifying any claimed jurisdictional error. She did not file and serve any further affidavit evidence or any transcript of the Tribunal hearing. She filed written submissions after the time allowed, but before the hearing resumed on 23 April 2008.
In the hearing today the applicant reiterated her claim about the Tribunal having refused her application for an adjournment. It appeared that the applicant may have been trying to indicate that she understood that a transcript of the Tribunal hearing had been obtained by a “friend”. She sought an opportunity to speak to her “friend”. The hearing was adjourned shortly to enable her to have such a telephone conversation. However, no transcript was forthcoming. It is apparent that no transcript has been obtained.
While the applicant did not seek a further adjournment of the hearing today, I nonetheless considered whether it would have been appropriate for the hearing to be adjourned again to give the applicant a further opportunity to put a transcript before the Court, despite the fact that she had an initial opportunity to do so after the directions hearing. The applicant confirmed that the account in the written submissions of what occurred in the Tribunal hearing was what she sought to rely on. I am satisfied that such claims, even taken at their highest (and even if there was evidentiary support for such claims before the Court) would not establish a jurisdictional error. Thus no purpose would be served and it would not be in the interests of justice to further adjourn these proceedings. No jurisdictional error, whether consisting of failure to comply with s.425 of the Act or otherwise, is established on the basis contended for by the applicant.
Insofar as the applicant claims that she raised with the Tribunal her claims of headache and back pain and sought an adjournment, the Tribunal recorded in its reasons for decision that when asked to demonstrate Falun Gong exercises the applicant claimed that her back was hurting and that she could not stand up. When the Tribunal suggested she demonstrate them from a sitting position, as most involved primarily arm movements, the applicant asked whether she could come back the next day. The Tribunal considered this request but stated that it could see no reason to delay, given the time the applicant claimed to have been practising these movements, albeit the Tribunal was happy to wait for the applicant to relax or warm up if she desired.
The applicant confirmed that she did not provide a medical certificate to the Tribunal, although she claimed she had a herbal treatment for her back which she showed the Tribunal member. Her complaint is not that the Tribunal failed to consider her application for an adjournment, but rather that the Tribunal refused her application for an adjournment.
It is clear from the Tribunal reasons for decision that the applicant did at one point request an adjournment. The Tribunal has power under s.427(1)(b) of the Act to adjourn the hearing from time to time. The discretion of the Tribunal under s.427(1)(b) of the Act is confirmed by what was said by Flick J in the recent decision in NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [14]. However this is a discretionary power. It is relevant to the exercise of that discretion that the Tribunal must conduct its review in a manner which, by virtue of s.420 of the Act, is fair, just, economical, informal and quick. There is no suggestion that the Tribunal failed to consider the application for an adjournment in a manner which negated the applicant's opportunity to appear before the Tribunal to give evidence.
I have considered whether there was any failure by the Tribunal to comply with s.425 of the Act. The principles considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365 are of relevance. In that case the Court considered the position of an applicant who sought an adjournment on the ground of illness. The Tribunal member refused to adjourn the hearing. In the particular circumstances of that case the Court was of the view that the denial negated the applicant's opportunity to appear before the Tribunal to give evidence. However in the course of reaching that conclusion the Court relevantly stated at [35]:
… This is not to say that the Tribunal is under any obligation to grant an adjournment on the basis of a mere allegation of sickness. There is no reason why the Tribunal must accept an allegation of this kind uncritically. It is entitled to require medical evidence if it believes that there is reason to doubt the truth of the allegation or otherwise to test it. An argument that so to hold would open the floodgates to applicants seeking adjournments for the purposes of delaying a hearing is without foundation. It will be ultimately a factual matter whether, in all the circumstances, an applicant has been given a real opportunity to appear before the Tribunal to give evidence. In the event that there is any contest and no adjournment is given, the question is one which will fall to be decided by the Court, which will consider all the circumstances, including any factors which support the Tribunal's refusal to grant an adjournment application.
In this instance the applicant has claimed that she sought an adjournment on the basis of what she claimed was a headache and back pain, that she did not have a doctor's certificate and that the Tribunal did not grant the adjournment. The Tribunal has recorded that it took into account the applicant's claims in this respect in the context of requesting her to demonstrate Falun Gong exercises and indicated a preparedness to provide her with additional time to relax or warm up if she so desired, after which time she is recorded as having attempted one movement.

In the circumstances of this case there is nothing to indicate that the Tribunal's approach rendered the s.425 invitation illusory or reflected a failure to provide a real opportunity for the applicant to be heard in the sense considered in NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [35]. Nothing that the applicant has said in her written submissions or from the Bar table today is supported by documentary evidence in the form of a transcript, but in any event her contentions are not such as to suggest that the Tribunal fell into error in the manner contended.
The applicant also claimed that she was nervous and took issue with the fact that the hearing was conducted by way of video link and that she was in the Tribunal hearing room for some considerable time by herself. The legislation gives the Tribunal power under s.429A of the Act to allow the appearance by the applicant before the Tribunal by telephone, closed circuit television or any other means of communication. The fact of a video hearing does not establish a failure to comply with s.425 of the Act or other jurisdictional error. Moreover it is apparent from the Tribunal reasons for decision that the Tribunal was aware of the difficulties that face applicants for protection visas and the matters to be taken into account in assessing the credibility of an applicant.
While the applicant now takes issue with what she may have told the Tribunal during the course of the hearing on the basis of her state of nervousness and ill health, she was given an opportunity by the s.424A letter after the hearing to address such concerns and inconsistencies in the evidence provided by her at various stages. She did not take the opportunity to comment on those inconsistencies. In short, the failure of the Tribunal to grant the applicant an adjournment on the basis on which she claims she sought an adjournment is not such as to establish a jurisdictional error. Nor is the fact of the conduct of the hearing by way of video link.
The applicant also raised a general issue about her inability to see the face of the interpreter. However there was no suggestion that she failed to understand the Mandarin interpreter, despite the absence of facial contact with the interpreter. Nor was there any suggestion by the applicant that she raised any issue in relation to interpretational difficulties with the Tribunal in the course of the hearing. She now claims that she could not understand what was being said. However, not only is there no evidentiary basis for such a claim, there is no specification of any particular failure to understand what was said. No jurisdictional error is established on this basis.
Another issue the applicant raised related to documents from China. She told the Court that she had not provided documents to the Tribunal because such documents were sent to her from China in a box of medicine intercepted by Customs. I note however that the evidence before the Court in the Court Book is that the applicant sought to provide documents which she expected to arrive shortly and was recorded as having told the Tribunal that she had received the documents from China and would have them translated and sent to the Tribunal within the next couple of days. She does not claim and nor is there any evidence before the Court to indicate, that she subsequently contacted the Tribunal with the explanation which she now gives in relation to the absence of documents which she had wished to provide to the Tribunal. I also note that the absence of documents does not address the applicant's failure to provide a response to the s.424A letter. The fact that she did not provide such documents does not establish any failure by the Tribunal to comply with s.424A or that its decision under s.424C to make a decision on the review without taking any further action to obtain the applicant's views on the information was not exercised reasonably and in accordance with its obligations under the Migration Act to carry out a review of the application before it. No jurisdictional error is established in this respect.
Insofar as the applicant seeks merits review by reiterating aspects of her claims to fear persecution, merits review is not available in this Court. Insofar as she seeks to raise what may be a fresh claim in relation to a fear of persecution on the basis of some internet publication of her identity, the issue before the Court is whether the Tribunal fell into jurisdictional error on the material before it at the time of its decision. If the applicant has new claims or her circumstances have changed, this may be a matter to raise with the Minster, but it is not a matter that establishes jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the Minister seeks that she pay his costs in the sum of $3,400. The applicant told the Court that there was no way that she could pay this amount. However in the circumstances of this case the applicant's impecuniosity is not a reason for departing from the general principle that an unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is at the lower end of the amount sought in matters of this nature, notwithstanding that at the adjourned hearing further issues were raised. I consider it appropriate in light of the nature of this and other similar matters.

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

Associate:

Date: 9 May 2007