SZKLJ v Minister for Immigration
[2008] FMCA 129
•11 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 129 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – adverse credibility finding – no failure pursuant to s.424A – no doubt on the part of the Tribunal as to certain findings – no requirement to consider the alternative – no jurisdictional error – application dismissed. |
| Migration Act 1958, s.424A |
| SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v the Commonwealth (1999) 168 ALR 1 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 |
| Applicant: | SZKLJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1091 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 February 2008 |
| Date of Last Submission: | 11 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mrs S A Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 3 April 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,350.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1091 of 2007
| SZKLJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me an application made pursuant to the Migration Act 1958 (Cth) (“the Act”) filed in this Court on 3 April 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 7 February 2007 and handed down on 27 February 2007, which affirmed the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.
The first respondent has put before the Court a bundle of documents which I will refer to as the Court Book (“CB”). I should also note that in addition to the application from the applicant I have his affidavit of 28 March 2007, and I also have before me today the affidavit of Ms Miriam Mafessanti, a solicitor in the employ of the respondent’s solicitors, made on 29 January 2008. I also have a set of written submissions prepared by Mrs S A Sirtes of Counsel on behalf of the first respondent.
From this material, the following background can be discerned. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia in July 2006. He applied for a protection visa in Australia in August 2006 and this application is reproduced in the Court Book at CB 1 to CB 29. I note in particular a statement by the applicant at CB 13. On 17 October 2006, a delegate of the first respondent refused the grant of a protection visa to the applicant, and on 22 November 2006, the application applied to the Tribunal for review of that decision.
On 4 December 2006, the Tribunal wrote to the applicant and invited him to attend a hearing before it (CB 52 to CB 53). On 10 January 2007, the applicant appeared before the Tribunal and gave evidence. On 10 January 2007, the Tribunal wrote to the applicant pursuant to s.424A of the Act and invited him to comment on information which may be the reason, or part of the reason, for the Tribunal affirming the decision under review (“the s.424A letter”) (CB 64 to CB 65).
In its decision record (reproduced at CB 69 to CB 78), the Tribunal noted that it had not received any response to the s.424A letter from the applicant (CB 75.3). On 7 February 2007, the Tribunal affirmed the decision under review. A copy of that application is reproduced at CB 44 to CB 47. I note that in December 2006, the Tribunal wrote to the applicant and invited him to attend a hearing before it. The applicant did attend a hearing on 10 January 2007, and the Tribunal’s account of what occurred at that hearing is set out in its decision record reproduced at CB 72.8 to CB 75.3.
The Tribunal also wrote to the applicant by letter dated 10 January 2007 (and it appears the letter was sent pursuant to s.424A of the Act) inviting the applicant to comment on certain information. In its decision record, the Tribunal noted that it had not received any response to this letter from the applicant. I note in particular the affidavit of Ms Mafessanti and the annexures to that affidavit as to the creation and dispatch of this letter to the applicant, and that relevant records reveal that no response had been received by the Tribunal from the applicant.
As noted earlier, the applicant’s claims to protection are set out in his statement attached to his protection visa application (see CB 13) and claims also made at the hearing before the Tribunal. In essence, the applicant’s claims were that the authorities in China had acquired land from the applicant and his family but that he had received insufficient compensation in return and could not survive. He claimed that he had protested against this action and those land developers who had benefited from the acquisition of his land, and that in July 2005 he attended a protest where his wife had been pushed, he had fought with police, and that as a result he claimed to have been taken to a police station, and that he had been mistreated and imprisoned.
In essence, his claims prior to the hearing before the Tribunal were that if he were to return to China he would not be able to survive without income. At the hearing before the Tribunal the applicant also claimed that he had taken up the practice of Falun Gong in Australia. I note, relevantly, at CB 74.8 in the Tribunal’s account of what occurred at the hearing, that when it was put to the applicant that he had not mentioned Falun gong in his protection visa application his response was that he had just taken it up and that he practised Falun Gong in China before it was outlawed in 1999 for about a month.
The Tribunal found the applicant’s oral evidence at the hearing to be inconsistent in some “key aspects” with his written claims. It noted that there were significant discrepancies between his accounts of the duration of his detention by police and his treatment by the police, and the claim to be a Falun Gong practitioner and his evidence that he had only recently taken up that practice in Australia (CB 76.4).
Ultimately, and in all, the Tribunal did not accept the applicant’s claims that his land had been seized, that he had received no compensation, and had been beaten and detained by police (CB 76.5). The Tribunal rejected the applicant’s claims in a number of respects due to the vague, inconsistent evidence and some of his explanations which it had considered implausible. The Tribunal also found that claims to have practised Falun Gong in Australia to be a fabrication made to support the protection visa application (CB 77.5).
In all, therefore, the Tribunal found that the applicant had not suffered Convention-related persecution in the past, and found that there was no real chance that the applicant would suffer harm if he were to return to China in the foreseeable future (CB 77.7). In all, the Tribunal therefore affirmed the decision under review.
In the application made to this Court the applicant puts forward the following grounds of review:
“1.The Tribunal failed to give the applicant information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and the Tribunal failed to invite the applicant to comment on it. By failing to do so the Tribunal breached the Section 424A(1) of the Migration Act 1958.
2.The Tribunal failed to accept the applicants’ claims that they had become a Falun Gong practitioners in Australia. The Tribunal rejected this claims as it found the applicant had limited knowledge about Falun Gong. By reaching this conclusion the Tribunal failed to take into account the fact that the applicant only became a Falun Gong member recently. By reaching such finding the Tribunal did not follow the rule that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).”
(Errors in original)
At the hearing before the Court, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mrs S A Sirtes of Counsel appeared for the first respondent.
The applicant stated to the Court that he cannot return to China because he has no land and no source of income, and life, in effect, would not be worthwhile. He emphasised that he would be persecuted by the government if he were to return.
I explained to the applicant today the difference in the role and function of the Tribunal and the role and function of the Court, and that it was the function of the Tribunal simply to determine the question as to whether Australia owed protection obligations to him, and that it was the function of this Court not to answer that question but to be satisfied that the Tribunal had conducted its task and functions without particular legal error.
Ground one in the application asserts that the Tribunal failed to give the applicant information pursuant to s.424A(1) of the Act. This complaint is not particularised but appears to be a complaint that the Tribunal failed to invite the applicant to comment on its decision before actually making its decision.
Focussing on s.424A of the Act, I note that the Tribunal did write to the applicant by letter dated 10 January 2007 and put the applicant on notice that there were serious discrepancies between the information contained in his original application and the evidence that he gave at the hearing. The Tribunal’s letter invited the applicant to comment in writing and the Tribunal, as noted earlier, did not receive any response to this letter.
First, there is no obligation on the Tribunal to write to the applicant putting to him inconsistencies in the evidence that he gave variously, even as between information he gave to the Minister’s Department and then to the Tribunal. Inconsistencies in an applicant’s accounts are not “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18], and the reference with approval to what was said by a majority of the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [24]).
Nor was there any obligation on the Tribunal to provide to the applicant a draft decision record and invite his comment on that. But I note, in any event and further, to the extent that the Tribunal made reference to and relied on country information, that such information falls within the exception contained within s.424A(3) of the Act from the requirements set out in s.424A(1) of the Act. [See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22].] Similarly, evidence provided by the applicant at the hearing before it is information given by the applicant to the Tribunal for the purposes of the review and falls within the same s.424A(3) exception (SZBYR at [13]-[22]).
Ground two in the application asserts, it would appear, two separate, but related, matters. The first is that the Tribunal failed to accept the applicant’s claim to be a Falun Gong practitioner, and second, that the Tribunal, having found that the applicant was not a Falun Gong practitioner, failed to consider the applicant’s claims on the basis that it might be wrong in this conclusion. The applicant relies on what he says to be that the Tribunal failed to take into account that he only became a Falun Gong member recently.
First, it is, as Mrs Sirtes submits, the Tribunal found that the applicant was not a Falun Gong practitioner not only for reasons of his limited knowledge of Falun Gong, but also that this claim was raised for the first time at the hearing before the Tribunal, but it is ultimately that the relevant finding of the Tribunal is that this claim was a fabrication. It is, as is set out in such cases as Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ, that if a finding of fact is open to the Tribunal on what was before it, no error is demonstrated.
The Tribunal not only rejected the applicant’s claims in this regard based on what it perceived to be his lack of knowledge of Falun Gong, it found that his claimed practice was a fabrication to enhance his protection claims. It is clear that the Tribunal is not bound to uncritically accept any or all of the claims or evidence put forward by an applicant in this regard (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437). I note also, as I said earlier, that the Tribunal wrote to the applicant and gave him a further opportunity to explain in addition to the opportunity that was provided at the hearing. On what is before me, it was plainly open to the Tribunal on what was before it to make such a finding, and therefore no error is demonstrated.
I should also note that to the extent that the Tribunal made such a finding of fabrication on the applicant’s part (although the Tribunal did not go any further, and was not required to go any further), even if the Tribunal were to have accepted that the applicant was engaged in some Falun Gong practice in Australia, given that it had not accepted that there had been any Falun Gong practice in Australia, was not required, in terms of the applicant’s complaint, to go on and consider whether the applicant had engaged in any such conduct pursuant to s.91R(3) of the Act. Having made the finding of fabrication, the Tribunal was not required to go any further.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”), the High Court set out what has come to be known as the “what if I am wrong approach” to the assessment of whether an applicant has a well-founded fear of persecution for a Convention reason. The exercise of the Tribunal’s function clearly involves it in considering each claim, or integer or aspect of a claim, and to weigh the evidence and material before it, and to make findings upon which it may base its conclusion of whether or not an applicant’s fear of persecution for a Convention reason is well-founded. If such a finding is not made with an appropriate degree or sufficiency of confidence, that is, if it is attendant with such a degree of doubt, then the Tribunal may need, in those circumstances, to consider the alternative, that is to consider that its finding may be incorrect and then to determine whether an applicant may have a well-founded fear in those circumstances. (See in particular Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Abebe v the Commonwealth (1999) 168 ALR 1. This was further explained by the Full Federal Court, in a case to which the applicant refers, in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (“Rajalingam”), where Sackville J, with whom North J agreed, stated that there are cases in which there could well be circumstances in which the Tribunal must take into account the possibility that past events had occurred, even in circumstances where it finds those past events probably did not occur.)
The case before the Court today does not fall within those set of circumstances. It is clear that the Tribunal had no real doubt as to the correctness of its finding in this regard, and I cannot see that it was required to consider whether its findings might be wrong. The issue is, as was said in Rajalingam, the Tribunal’s apparent confidence in its conclusions. I cannot see that the Tribunal’s finding was attendant with such doubt. In any event, and further, I note also submissions by Mrs Sirtes with reference to the matters of MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [28], Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ, and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ, at para.13 of written submissions, with which I also agree.
As the applicant appeared unrepresented before the Court today, I also considered whether any other matter in the material before the Court could give rise to jurisdictional error, and I note in this regard, as noted earlier, that the applicant was put on notice as to the Tribunal’s concerns about the inconsistencies in his claims. But I also note that on the only account of what occurred at the hearing that has been put before the Court, the Tribunal explained to the applicant at the hearing that his evidence contained inconsistencies, and I note in particular what the Tribunal said at CB 75.3:
“It was explained to the applicant that his evidence at the hearing had differed in important ways from what he had said in his Protection Visa application, and that the Tribunal would write to him setting out the differences and asking for his comments.”
I note also, specifically in relation to the applicant’s claims concerning harm from the authorities (in particular, the police), that this was put to the applicant (at CB 74.6), and that the applicant was given the opportunity of commenting on inconsistencies in regard to these claims, particularly as it related to his claims of detention. His failure to mention his Falun Gong practice at an earlier time in the course of applying for a protection visa was also specifically raised with the applicant at the hearing. I note here what is recorded at CB 74.8.
In all, therefore, I am satisfied that during and at the conclusion of the hearing that the Tribunal conducted with the applicant, that the applicant would have been put on notice that the inconsistencies in his various accounts were important matters in the Tribunal’s consideration of his claims, and that the failure to have mentioned earlier his Falun Gong practice was also a critical issue in its consideration. I cannot see, therefore, that the applicant would have been left in any doubt as to how the Tribunal viewed the critical aspects of his claims. I also note what the applicant said to the Court today, that he could not return to China because he had no land and no source of income.
Nothing that the applicant has put before the Court reveals jurisdictional error on the part of the Tribunal, nor can I otherwise discern any such jurisdictional error. Accordingly, the application before the Court is dismissed.
Given what the applicant has said in relation to the issue of costs, I note that the applicant would have been on notice as to the possibility of the issue of costs being sought against him given what is set out at para.19 of the respondent’s written submissions of 31 January 2008. In any event, I am satisfied that a costs order should be made in this matter. I cannot see that there is anything that would argue against the making of such an order. As to the amount, I note that in the relevant Schedule to the Court Rules the respondent could have sought an amount of $5,000 and the amount sought is hundreds of dollars below that. In any event, and in all the circumstances, I am satisfied that the amount sought, given the work that has been done by the respondent’s legal representatives (briefing of Counsel, attendance by Counsel, various attendances at Court, preparation of written submissions, preparation of the Court Book) that the amount sought is a reasonable amount in all the circumstances.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of FM Nicholls FM
Associate: A Douglas-Baker
Date: 13 February 2008
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