SZKFW v Minister for Immigration

[2007] FMCA 1906

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKFW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1906

MIGRATION – RRT decision – Chinese applicant claiming persecution for providing assistance to Falun Gong practitioners – disbelieved by Tribunal – alternative finding that the applicant had no real chance of suffering serious harm – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZEEUv Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214

Applicant: SZKFW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 559 of 2007

Judgment of: Smith FM

Hearing date: 7 November 2007

Delivered at: Sydney

Delivered on: 7 November 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr B O'Donnell

Solicitors for the Respondents: DLA Phillips Fox

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

SYG 559 of 2007

SZKFW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in 2006 on a business visa, and lodged an application for a protection visa assisted by a migration agent. A brief statement set out his reasons for fearing persecution if he returned to The People's Republic of China. It recounted a history which was unsupported by any corroborative evidence presented either to the Department of Immigration or to the Refugee Review Tribunal.

2. The applicant claimed that he was not a Falun Gong practitioner, but that in 2005 he had assisted a friend who was a practitioner to escape from persecution. He had also assisted another friend to distribute Falun Gong propaganda materials, by delivering them “to some secret places according to their instructions”. In October 2005 another of his friends was arrested, and “as a result, I was subjected to interrogation by the PSB for many times from then on (at least 10 times during the period since October 2005)”. However, he was released, because there was no evidence showing he had been a Falun Gong practitioner himself. The applicant then prepared to leave the country, and obtained a visa in his passport. He decided to use his passport and visa after another friend was arrested in February 2006. He discovered that his “involvement in actively supporting Falun Gong practitioners” had been revealed to the PSB. He said: “as I result I have been put in very dangerous situation immediately and I had to escape to the south of China late in February 2006”. He said that he left China, and arrived in Australia.

3. The passport which he presented to the Department, and again to the Tribunal when he attended a hearing, showed that he had departed from China and arrived in Australia on a Chinese passport in his own name.

4. A delegate refused the visa application on 2 June 2006. In his reasons, the delegate clearly formed an adverse opinion as to the veracity of the applicant’s visa statement. He said: “the applicant's claims lack sufficient detail to be relied upon as credible”. The delegate also referred to the applicant's ability to depart China without difficulty, notwithstanding his claims to have been interrogated on 10 occasions and to have been further implicated in anti-government activities. The delegate said “I do not find it plausible therefore that he would not have been of adverse interest were his claims to be true”.

5. On appeal to the Tribunal, the applicant attended a hearing on 20 December 2006. A transcript of the hearing is in evidence. In my opinion, it reveals that the applicant was given a fair opportunity to fully explain why he left China, and to present any other information which he thought relevant to the review. In fact, the applicant referred only to assisting two Falun Gong practitioners to escape from China, and made no reference to any involvement in distributing Falun Gong propaganda materials. He did refer to his interrogation on 10 occasions between October 2005 and February 2006 in relation to his friend who had escaped.

6. At the end of the hearing, the Tribunal clearly put to the applicant that it was considering whether there was “a real chance you will suffer serious harm if you return to China”, and also invited him to comment on the fact that “they allowed you to depart the country safely, so one could say that they have no interest in you” (see p.10 of transcript).  It also put to him (see p.11 of transcript):

   Tribunal Member:      Okay, but in that case, they still let you leave the country safely?

   Interpreter:                 I don’t think he understand the question.

   Tribunal Member:      Even though they knew that you’d helped Mr H, they still let you leave the country safely?

   Interpreter:                 Because when LJ was arrested, I was afraid to leave the country because I was concerned maybe my record was in the system of the PSB computer, but when Mr H was arrested, I was told that the local people reported me.  I was very scared, so I asked the help of the construction company boss who helped me obtain the visa and he told me to go from Zhuhai first, Z-h-u-h-a-i, City first.  Then arrived Hong Kong.  Sorry not Hong Kong, Macau.

   Tribunal Member:      So to leave China through Zhuhai City?

   Interpreter:                 Yes, from Zhuhai, yes.

   Tribunal Member:      Okay, Was there anything else that you wanted to tell me?

   Interpreter:                No, thanks.

7. The Tribunal affirmed the delegate's decision in its decision handed down on 11 January 2007. Its statement of reasons fully recited the written claims made by the applicant in his visa application, and also the effect of his evidence given at the hearing. The Tribunal’s reasons for affirming the delegate's decision were, however, given briefly. Some of its findings might appear unpersuasive, even cursory; however I am obliged to give the Tribunal the benefit of doubts unless I am persuaded that the reasons reveal jurisdictional error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291).

8. The primary reason for the Tribunal affirming the delegate's decision was that it “does not believe the applicant's claim that he faces a real chance of detention or other harm should he return to China”. It said:

   The Tribunal makes this finding because it finds that his claim that he faces serious harm through an alleged friendship with, and assistance to, Falun Gong practitioners, to be implausible.

9. It indicated a general disbelief in the applicant's claim to have given assistance to Falun Gong practitioners when he was not such a person himself, and concluded that this claim was “fabricated…so as to gain a protection visa”.

10. The Tribunal gave a second reason in the alternative, “were the applicant's claims true”. This was that “the applicant would not in any case face a real chance of serious harm were he to return to China”. It characterised the applicant's evidence as showing “that he has only a marginal relationship with Falun Gong such that he would not be of interest to the authorities”. It predicted that were he to return and be interrogated there would “still be no evidence of wrong against him”.

11. The Tribunal then repeated its conclusion that the refugee claims had been presented “so as to gain a protection visa in Australia”, and said:

    The Tribunal is strengthened in this finding by the fact that the applicant was able to safely depart China using his own passport which the Tribunal finds indicates the authorities had no interest in the applicant.

12. The Tribunal found that there was no real chance the applicant would face serious harm for any Convention reason were he to return to China.

13. The applicant now asks the Court to set aside the Tribunal's decision and to order it to reconsider his refugee claims. I can only make these orders if I am satisfied that its decision was affected by jurisdictional error. I do not have authority to decide myself whether the applicant should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia.

14. The applicant's application has five grounds set out in an amended application. The first ground is “the Tribunal misstated the s.91R of the Act". The particulars repeat the applicant's claims to have helped Falun Gong practitioners based on political opinions, and argue that his fears were therefore of persecution on a Convention ground.

15. However, I can detect in the Tribunal's reasoning no misapprehension as to that aspect of the applicant's claims. I can find no other relevant error referrable to the application of s.91R of the Act revealed in the Tribunal's reasoning. If, contrary to that opinion, such an error is shown by the Tribunal’s finding that the applicant would not “in any case face a real chance of serious harm”, then this error was not material, since the Tribunal’s decision primarily rested upon its independent finding which rejected the applicant’s history (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [28], [55]-[59], [91]).

16. The second ground in the amended application is that “the Tribunal's finding has, apparently, based on unwarranted assumptions”. The particular to this ground criticises the Tribunal for not giving “any reasons or provide any evidences” for its finding that his claims were fabricated.

17. The jurisprudential basis for this ground is unclear. The Tribunal did, in fact, give reasons, albeit brief, for making its adverse finding as to the “fabricated” nature of the applicant's refugee claims. Its reason was expressed concisely as being that his uncorroborated narrative was implausible. In the circumstances in which the claims were presented, both in writing and orally, that reason was in law a sufficient reason to support its decision, and was open to the Tribunal on the evidence before it.

18. I discussed with counsel for the Minister whether the serious finding of “fabrication” had been sufficiently foreshadowed to the applicant as a live issue in the review being conducted by it (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152). I am not persuaded in the present case that it was not. As I have indicated, the delegate's decision had been firmly founded upon a doubt as to the credibility of the narrative presented by the applicant. He was, in my opinion, clearly on notice that in the Tribunal’s review of that decision it would be addressing whether he was telling the truth or making up a story of persecution so as to gain a protection visa. I therefore do not consider that the Tribunal has made findings, the possibility of which were not fairly brought to the applicant's attention. I am unable to find any other basis upon which this ground could be upheld.

19. The third ground in the amended application is that “the Tribunal has misstated or misunderstood the information or evidence as given by me” There is then reference to the applicant's claims in his written statement to have actively assisted Falun Gong practitioners to distribute propaganda material. It is argued that the Tribunal did not address that claim, but assessed the applicant's claims only on the basis that he was known to have had a friendship with some practitioners.

20. However, the Tribunal's key finding on implausibility encompassed “an alleged friendship with, and assistance to, Falun Gong practitioners”. In circumstances where the Tribunal has previously fully recited all elements in the applicant's refugee claims, including his claims to have been involved in distributing Falun Gong materials, I am not persuaded that its adverse finding did not address all components of the refugee claims.

21. The fourth ground in the amended application is that “the Tribunal failed to comply with its obligations under s.424A(1) of the Act”. The particulars of this ground follow a precedent which reveals a misunderstanding of that section, by suggesting that the Tribunal is obliged to put to an applicant its reasoning based on evidence given at a hearing. The contrary is clearly the case, both by reason of the application of s.424A(1) to information as distinct from reasoning processes (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]), and also by reason of the exclusion of any obligations in relation to information given at a hearing (see s.424A(3)(b)).

22. Counsel for the Minister presented written submissions addressing a possible argument on behalf of the applicant that the Tribunal relied upon information showing “that the applicant was able to safely depart China using his own passport”, which came within s.424A(1). He made a variety of submissions in answer to this argument, many of which took the Court into currently unclear territory in relation to s.424A. He also submitted that passages in the transcript, which I have referred to or set out above, revealed the giving of the information about his safe departure to the Tribunal in his responses to questions (compare NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [60]).

23. There is, in my opinion, merit in that submission. However, in my view, the firmest foundation for a conclusion that s.424A(1) did not apply in relation to information relied upon by the Tribunal in this part of its reasoning arises from the fact that the applicant presented his passport to the Tribunal at the hearing. That passport, in my opinion, contained information supporting a finding that the applicant had “safely departed China using his own passport”. On that basis the exclusion in s.424A(3)(b) would therefore apply (cf. SZEEUv Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [51]-[52]).

24. For the above reasons, I am unable to identify any basis upon which I can uphold the fourth ground.

25. The fifth ground of the amended application is: “in summary, I have never, ever agreed that my application has been assessed by the Tribunal fairly and carefully”. It is not clear to me that this makes a separate proposition directing attention to jurisdictional error. However, I am not persuaded that the Tribunal did not perform its statutory responsibility to review the applicant's refugee claims and the delegate's decision “fairly and carefully”.

26. The applicant today had no additional arguments which he wished to present to the Court.

27. For the above reasons I am not persuaded that the Tribunal's decision was affected by jurisdictional error, and I must therefore dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  21 November 2007