SZKKF v Minister for Immigration - [2007] FMCA 1236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKKF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1236

MIGRATION – RRT decision – chinese applicant claiming persecution for Falun Gong involvement – claims significantly altered at hearing – adverse credibility finding by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.474, 476

SZBYR v Minister for Immigration [2007] HCA 26

Applicant:

SZKKF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1000 of 2007

Judgment of:

Smith FM

Hearing date:

20 July 2007

Delivered at:

Sydney

Delivered on:

20 July 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1000 of 2007

SZKKF

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 26 March 2007, which has been set down for a final hearing 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 29 January 2007 and handed down on 20 February 2007. The Tribunal affirmed a decision of a delegate made on 3 July 2006, refusing to grant a protection visa to the applicant.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under pargraph.75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to send the matter back 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 he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in March 2006 on a passport showing the name in which he subsequently applied for protection, and, indeed, the name in which he has commenced these proceedings. His application for a protection visa was lodged on 7 April 2006. It did not identify a person who assisted him. A typed statement in support narrated a history upon which he claimed protection under the Refugee's Convention against return to the People's Republic of China.
The applicant claimed to have been influenced in the early 1990s by his father who was a Falun Gong practitioner, and to have become “so obsessed with Master Lee's profound teaching”. He claimed to have been actively studying video teachings and books, and to have copied these and distributed them. He claimed to have joined his father in the practise of Falun Gong and to have recruited people. This happened “continuously for several years” until 1999, when everything changed. He claimed then to have continued Falun Gong exercises at home, instead of in public, but to have lost his employment in 2001 “because of my family's popularity as Falun Gong practitioners”. His statement concluded by saying that he moved to Beijing in that year, and:
As a committed Falun Gong practitioner, I never stopped acting as a Falun Gong practitioner. In this regards I was in trouble again with the authorities in Beijing in August 2005. I could no longer stay in China due to the risks on my life. With the help of my friends, I obtained my passport and visa to Australia.
The Department of Immigration obtained an expert examination of the applicant's passport, which noted irregularities in relation to the photograph. It also compared the photograph shown in the off-shore visa application with the photograph presented with the on-shore application, and noted differences. The applicant was invited to attend an interview but did not attend. That interview invitation was sent to his address for correspondence, but the applicant now claims he did not get it.
The delegate's decision, which was sent to the same address, said that the delegate was not satisfied that the applicant had provided “genuine details regarding his identity or of his true circumstances in China”. She said:
I am not satisfied with the veracity of the applicant's claims relating to his identity and his circumstances in China as a result of his and his family's Falun Gong activities.
The applicant must have received that letter, because he lodged an application for review with the Tribunal on 3 August 2006, giving new residential and postal addresses. The Tribunal sent to his postal address an invitation to attend a hearing on 28 September 2006, and the applicant attended. A transcript of that hearing is in evidence.
At the hearing, the applicant told the Tribunal member that the passport presented to the Department “is not mine”. He then gave the Tribunal another name which he claimed was his, and gave some details concerning his claimed place of residence in that identity. He gave a completely different explanation for his coming to Australia. He claimed that this arose out of an event in 2002, in which he was asked by a childhood friend to assist two leaders of Falun Gong to “go overseas to avoid being persecuted by the government”. He gave this assistance by invoking the assistance of another friend. In relation to his own involvement in Falun Gong, he said that he had gone to “their gathering on one or two occasions where they gathered in a hall and somebody gave teaching about the theory of Falun Gong and the benefit of it”.
He did not claim, himself, to have become an adherent or practitioner of Falun Gong, nor to have had any subsequent involvement in it. The applicant claimed, however, that in October 2002 he had been arrested, held overnight by the Public Security Bureau, and then forced to confess in relation to “helping those Falun Gong leaders to go overseas”. He claimed to have been placed in detention, from which he escaped after two months and went to live in a different part of China with a friend. In 2006, his friend gave him a passport so that he could come to Australia.
The applicant also referred to events in 2002, when he had been divorced and his father had died, and offered to obtain documents to prove these events and his claimed identity. The Tribunal member gave him that opportunity, and eventually the applicant did present documents purporting to establish the identity he claimed before the Tribunal.
The Tribunal was at that time reconstituted following the expiry of the appointment of the member originally constituting the Tribunal. The new member caused the applicant to be sent an invitation to comment, first to his original address for service and subsequently to his stated residential address. This, in effect, foreshadowed the reasoning subsequently followed by the Tribunal in its statement of reasons. It suggested that the Tribunal might not be satisfied that he was a witness of truth, due to his admitted deception of the Department of Immigration as to his identity and the inconsistencies in the two stories given.
It is not clear whether the applicant received either of those letters, since he subsequently filed a change of address. However, I am satisfied that the requirements in relation to service of s.424A notices were complied with. Moreover, as counsel for the Minister now contends, the service of such a notice was probably not required, upon the interpretation of s.424A(1) recently given by the High Court in SZBYR v Minister for Immigration [2007] HCA 26.
When the Tribunal notified the applicant as to the intended date for handing down the decision, the letter sent to the applicant's new postal address drew his attention to the fact that he still had an opportunity to present further evidence and submissions before the decision was handed down. However, nothing further was received from the applicant, and the Tribunal proceeded to publish its decision and reasons.
As I have indicated, the essential reason explained by the Tribunal was:
the Tribunal does not accept the present applicant is a witness of truth. It is satisfied the applicant was prepared to embellish if not entirely fabricate his claims in order to enhance his prospects of invoking refugee protection obligations in Australia. For the reasons set out below, the Tribunal is sufficiently satisfied the present applicant is not a witness of truth such that it is satisfied there are reasonable grounds to reject all his material claims. Thus, to the extent the Tribunal has not expressly rejected his material claims elsewhere, given it is sufficiently satisfied he is not a witness of truth, the Tribunal finds that none of the applicant's material claims to invoke refugee protection obligations in Australia are true.
The Tribunal then set out its reasons for that conclusion. Since the Tribunal rejected the truth of the new claims made to the Tribunal, it did not need to assess whether, if they had been accepted, they would establish a well-founded fear of persecution on return to China for a Convention reason. However, the applicant may also have faced difficulties if his claims had been considered from that angle.
I have considered the reasons and procedures followed by the Tribunal, and have been unable to identify jurisdictional error affecting the Tribunal's decision.
The applicant's application filed in the Court contains as its only ground:
The Tribunal committed jurisdictional error of law in that it further failed to comply with the Migration Act 1958.
However, this ground is meaningless in the absence of any details of an argument in support. The applicant has been given ample opportunity to present a detailed argument, but has not done so whether by way of amended application, written submission or in his submissions today.
Notwithstanding the total absence of any meaningful ground for review, Counsel for the Minister, in his written submission, has explored various aspects of the procedures and reasoning of the Tribunal, and in my discussion above I have addressed some of the points raised by him. I accept the written submissions presented by counsel for the Minister in all respects.
In his submissions to me today, the applicant referred to the change in constitution of the Tribunal, without developing any argument that this was inconsistent with any requirement of the Migration Act. On the material before me, there is no support for any contention that the requirements of s.422 were not satisfied.
The applicant's other statements to me argued that the Tribunal unfairly rejected the truth of his claims made to the Tribunal at the hearing, by not appreciating the reasons which had led him not to reveal his true identity and “true situation” before attending the Tribunal's hearing.
However, I am not satisfied that the Tribunal did not bear in mind the possible reasons why a refugee claimant might initially not tell the entire truth. The difficulty facing the present applicant was that a complete fabrication had been presented to the Department, and in my opinion the Tribunal's reasoning in relation to credibility was well open to it on the material before it.
I am not satisfied that the Tribunal's decision reveals any jurisdictional error on its part. I must therefore dismiss the present application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 6 August 2007