SZKNR v Minister for Immigration - [2008] FMCA 165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 165

MIGRATION – Review of Refugee Tribunal decision – procedural fairness – adverse credibility finding – Tribunal did raise determinative issues with the applicant at the hearing – no jurisdictional error found – application dismissed.

Migration Act 1958, ss.91R(3), 422B, 424A, 425

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26,
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

Applicant:

SZKNR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1284 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

Appearing for the Respondents:

Ms S Kantaria

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 20 April 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,230.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1284 of 2007

SZKNR

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 under the Migration Act 1958 (Cth) (“the Act”), filed in this Court on 20 April 2007, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 28 February 2007 and handed down on 22 March 2007 which affirmed the decision made by a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The first respondent, the Minister, has put before the Court a bundle of relevant documents (Court Book – “CB”), and from these documents the following can be discerned. The applicant is a national of the People’s Republic of China, who arrived in Australia in August 2006. In September 2006, he applied for a protection visa (application reproduced at CB 1 to CB 38).
I note that during the course of consideration of that application, the applicant was represented by a migration agent before the Minister’s department. On 23 November 2006, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 21 December 2006, the applicant applied for a review of that decision by the Tribunal (application reproduced at CB 64 to CB 67). I note that the same migration agent was again nominated to assist and represent the applicant before the Tribunal, and that this migration agent was also nominated by the applicant as the person authorised to receive correspondence.

The applicant’s claims to protection

Before the Tribunal, the applicant’s claims to protection were that he was a Falun Gong practitioner in China, and that because of this, he had been subject to mistreatment, detention and harm in China. He claimed to have been harmed by the authorities. The applicant also claimed to have practised Falun Gong after his arrival in Australia. The applicant, accompanied by his migration agent and with the assistance of an interpreter in the Mandarin language, appeared at a hearing before the Tribunal on 21 February 2007 where he gave evidence to the Tribunal.

The Tribunal

The Tribunal ultimately found that the applicant’s claims were inconsistent with independent country information, internally inconsistent, and implausible. It found his claims to be a Falun Gong practitioner and to have experienced harm because of being a Falun Gong practitioner, to be a fabrication, finding that he had never been a Falun Gong practitioner. Specifically, the Tribunal found that his account of the authorities’ view of Falun Gong and their action in relation to Falun Gong practitioners was inconsistent with country information available to it.
It found that the applicant was not a credible witness and that the applicant’s account of how he was caught by the Chinese authorities practising Falun Gong in May 2002 was implausible. The Tribunal did not accept that the applicant would have been released from detention in May 2004 if he had not renounced his beliefs. The Tribunal did not accept that the applicant practised Falun Gong outdoors in 2004. It found that the applicant was able to obtain a passport legally in circumstances where, if he was of concern to the authorities, he would have experienced some difficulty in doing so. Further, because of its credibility concerns, the Tribunal did not accept that the applicant was detained, harassed, or kept under surveillance in China for practising Falun Gong.
The Tribunal was not satisfied that the applicant attended Falun Gong activities in Australia other than for the purpose of strengthening his refugee claims in Australia. While it, therefore, appears to have accepted that he may have attended some Falun Gong group activities in Australia, it disregarded this conduct pursuant to s.91R(3) of the Act because it found that it could not be satisfied that such conduct was engaged in by the applicant other than for the purpose of strengthening his refugee claim.

Hearing before the Court

At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms Kantaria appeared for the first respondent. The applicant stated before the Court that he had been imprisoned in China, that he had suffered, that he was a Falun Gong practitioner in China and had been persecuted, and he complained that the Tribunal did not believe, notwithstanding what he had said to it, that he was a victim of persecution in China.
The applicant sought more time to obtain evidence to support these claims. I explained to the applicant the difference between the role of the Tribunal and the role of the Court. In particular, I explained that it was for the Tribunal to answer the question as to whether the applicant was a refugee or not, and that it was for the Court to consider whether an error of law, in particular, jurisdictional error, could be discerned in the Tribunal’s decision.
The applicant stated that during the course of the hearing before the Tribunal, the Tribunal had said that it was implausible that he was able to obtain a passport to leave China if he had been imprisoned. The applicant explained to the Court that he had obtained his passport by bribery.
The applicant also complained that he did not understand the reasons as to why the Tribunal refused his application. At first, it appeared that he claimed from the Bar table that he had no knowledge of the Tribunal’s decision record, but he then stated that his migration advisor had assisted him in making the application to the Court after the Tribunal had refused his application.

Consideration

Turning firstly to the grounds as stated in the application. The first ground is that jurisdictional error has been made. No particulars are provided in support of this complaint, and while I did not understand the applicant to make submissions in relation to this ground, what he did say to the Court may relate to this very general complaint. As it is stated, I cannot see that the Tribunal decision is affected by jurisdictional error.
The second ground in the application is that procedural fairness has been denied. I note first of all that this is a case to which s.422B of the Act applies, and in that regard, it is the matters that are set out in div.4 of pt.7 of the Act which are the exhaustive statement of the natural justice hearing rule, of course, absent bias.
Firstly, I note that the applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act and that he attended the hearing with his migration agent and gave evidence to the Tribunal. The Tribunal’s account as to what occurred at the hearing is the only account that has been put before the Court. In terms, therefore, of procedural fairness, I did consider what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”) and, in particular, in relation to procedural fairness that the Tribunal is obliged to provide a fair hearing pursuant to s.425.
The Tribunal is obliged to afford the applicant procedural fairness by relevantly giving the applicant the opportunity to provide evidence or make submissions at the hearing about those issues, which would be the determinative issues arising in relation to the decision under review, and which were not issues that arose before the delegate during the course of the delegate’s consideration of the applicant’s application for a protection visa.
In the case currently before the Court, the determinative issue was, clearly, the Tribunal’s comprehensive rejection of the credibility of the applicant’s claims as they related to his being a Falun Gong practitioner in China and, therefore, him being of interest to the authorities in China. These were claims with which the Tribunal had comprehensively rejected.
As I have mentioned, the only evidence which has been put before the Court as to what occurred at the hearing is that which is contained in the Tribunal’s own account in its decision record. On this account, it is quite clear that the Tribunal raised its concerns about the credibility of the applicant’s claims and evidence with him on a number of occasions. The applicant would have been in no doubt during the hearing, and at the conclusion of the hearing, that the Tribunal had problems with his credibility and the plausibility of his claims.
The Tribunal had concerns about the credibility of the applicant’s account of the relevant events in China. It was surprised by his account of his claimed arrest and the inconsistency between these claims and independent country information; and further, that the independent country information indicated that if he was a concern to the authorities he could not have obtained a passport without difficulty.
I note generally the Tribunal’s account in this regard. In particular, I note the following in the context of being satisfied that the Tribunal raised determinative issues regarding its concerns about the applicant’s credibility with him at the hearing. The Tribunal said the following (at CB 92):
“The Tribunal put to him that he did not face any persecution in China, that he obtained his passport legally and is therefore not a person of interest to the Chines authorities and not a genuine Falun Gong practitioner.” [Errors in original]
Tribunal said (at CB 92.6) that it: “found it implausible that Mr Wang was not detained when the applicant had said that his name was on the tapes and books found in his house in May 2002” by the authorities. I note that the applicant claims that Mr Wang was a person with whom he had practised Falun Gong.
Next, at CB 92.7, the Tribunal said that it put to the applicant that independent country information indicated that Falun Gong was banned by the government in July 1999, that it was suppressed forcibly, and that it was surprising that the applicant did not know it was dangerous until 2001.
The Tribunal also put to the applicant that it seemed surprising that he was found to be practising Falun Gong in his parents’ house and that they were not arrested or detained. Ultimately, the Tribunal very plainly records that it put to the applicant that while it appeared that he had some knowledge of Falun Gong it was not convinced that it was his personal belief.
The purposes, therefore, of procedural fairness and, in particular, s.425 of the Act, bearing in mind what the High Court said in SZBEL, I am satisfied that the Tribunal raised with the applicant the issues that were determinative in its decision to reject the applicant’s claim to protection in Australia.
As to s.424A of the Act, another relevant section being part of div.4 of pt.7 of the Act, it is clear that the Tribunal did rely on independent country information and on matters in the applicant’s passport and on the evidence that the applicant gave at the hearing before it as information that was a part of the reason for its decision.
But all of this information plainly falls within the exceptions contained in ss.424A(3)(a) and 424A(3)(b) from the requirement to be put to the applicant in writing pursuant to s.424A(1). The Tribunal’s adverse credibility finding, and its adverse view of the key aspects of the applicant’s claims, of course, is not information for the purposes of s.424A. In this regard, I also note the applicant’s third ground in the application that the Tribunal did not give him a letter to explain its doubts.
First, I should note that there is no obligation on the Tribunal to provide its doubts about an applicant’s evidence, that is, its adverse view as to the credibility of an applicant’s evidence - there is no obligation on the Tribunal to provide in writing to the applicant in the circumstances of this case. As I have said, the Tribunal quite properly and appropriately raised its concerns about the applicant’s evidence at the hearing that it conducted with the applicant. Plainly, what is before the Court now, the applicant was given the opportunity to address the Tribunal's concerns at the hearing.
It is important to note that the applicant appeared before the Tribunal and had the assistance of his migration advisor. Even if the applicant chose, for whatever reason, not to address the Tribunal’s concerns fully at the hearing before it, it was certainly open to the advisor to have assisted the applicant in this regard both during the hearing and to have made submissions to the Tribunal following the hearing. That the applicant did not satisfy the Tribunal at the hearing, or that the advisor did not take whatever opportunities were available, does not reveal jurisdictional error on the part of the Tribunal.
And, in any event, as I noted earlier the Tribunal’s adverse view of the applicant’s claims is not information for the purposes of s.424A(1), and I note in particular what was explained by the High Court relevantly in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, and the Tribunal’s endorsement of this proposition and what the majority of the Full Federal Court said in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 and a number of other authorities referred to in that case.
Ultimately, the Tribunal is not obliged to put its doubts about the applicant’s evidence to the applicant in writing for the purposes of s.424A, and the Tribunal complied with its procedural fairness requirements by putting its concerns about the applicant’s credibility to him at the hearing that it conducted with him. I cannot see that the Tribunal’s decision reveals jurisdictional error for any other reason arising out of div.4 of pt.7 of the Act. Grounds 2 and 3, therefore, are also not made out.
I turn to the matters raised by the applicant today during the course of the hearing before the Court. Much of what the applicant said in restating his claims of fear of harm and persecution in China were no more than seeking merits review from this Court, a type of review which this Court is not permitted to indulge in. The Tribunal did not believe that the applicant was a victim of persecution. It is, of course, a matter for the Tribunal as the relevant decision maker.
As McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, which is now often quoted, findings of fact, including findings on credibility, are for the Tribunal as the decision maker par excellence. The Tribunal’s findings were plainly open to it on what was before it and I cannot discern error in this regard.
The applicant sought more time to obtain evidence. That is, evidence that he could put before a Tribunal to support his claims. I saw this, in particular, perhaps being related to, and flowing from, the Tribunal’s account of what occurred at the hearing where the applicant, in responding to the Tribunal’s claim that he was not a person of interest to the Chinese authorities, responded that if the Tribunal did not believe him, when he could not provide any evidence, then he would try and obtain his certificate from release from detention which, presumably, would assist in convincing the Tribunal that he had been detained.
But the time providing such documents was the time that was available to the applicant during the course of review before the Tribunal. I note that the applicant appeared before the Tribunal on 21 February 2007 and, indeed, had, at least, a month up until 22 March 2007 when the Tribunal handed down its decision to provide to the Tribunal any further evidence that he wished to provide to it. I note, again, that the applicant was assisted before the Tribunal by a migration advisor who, on the best evidence before the Court, is a registered migration agent.
No further evidence was produced to the Tribunal and nor was any approach made to the Tribunal for further time within which to provide any further documentary evidence, despite the time available to the applicant, and despite the assistance available to the applicant by way of his migration agent, an agent which the applicant, from what he said from the Bar table today, continued to assist the applicant in the making of the application to this Court. In all, therefore, this complaint also does not now assist the applicant.
The applicant also complained to the Court that during the course of the hearing, the Tribunal had put to him that it was implausible that he was able to get out of China if he had been imprisoned. The applicant has not put before the Court any evidence to challenge the Tribunal’s account of what occurred at the hearing. For example, the applicant has not put before the Court, despite opportunity to do so, a transcript of the hearing before the Tribunal. Bearing in mind what was said by a Full Federal Court in the matter of NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241, the Court can only proceed on the evidence and material that is put before it.
The applicant’s reference to this issue appears in the Tribunal’s account of what occurred at the hearing to be what the Tribunal has set out at CB 91.8 where the Tribunal put to him that independent country information indicated that people of concern are not issued with passports, and that those that are issued with a passport are thoroughly vetted by the security authorities.
The Tribunal said that it seemed surprising that he would have been granted a passport on 19 June 2006 if he was a person of interest to the authorities because of his Falun Gong practice. He said Mr Wang obtained the passport. He said Mr Wang paid for his passport and air ticket. The applicant claimed today that, in fact, he obtained his passport by the payment of a bribe.
I cannot see that the applicant ever made that claim to the Tribunal in those terms, and focusing on what the applicant said occurred at the hearing, I have already quoted what the Tribunal said had occurred, and there is no reported mention by the applicant of any bribery in relation to the obtaining of the passport. I do not see that the applicant’s answer as stated, that Mr Wang obtained his passport on his behalf, and that he paid for the passport and air ticket, can amount to any claim that bribery was involved.

Conclusion

In all, I cannot discern jurisdictional error in the Tribunal’s decision, either by what is stated in the grounds of the application, nor from what the applicant has said to the Court today. Nor can I otherwise discern jurisdictional error on the part of the Tribunal. In this circumstance, the application is, therefore, dismissed.

In my view, it is appropriate that a costs order be made in this matter. The situation is that such an order, in my view, should be made unless there is something special that would argue against the making of an order. The applicant has said that he did not know that he would have to pay for this “appeal” (as he describes it) but I note from the Minister’s submissions that the issue of costs was raised in those submissions.
There is no explanation from the applicant that he did not receive those submissions, but even if it is the case that the applicant chose to proceed in ignorance on the issue of costs, and I say this in circumstances where on his own statement to the Court, albeit not put in evidence, that he had assistance from a migration agent in preparing his application for this Court. Nonetheless, I cannot see that the applicant’s stated ignorance about this matter is such a reason as would cause the Court not to make such an order.
I also note in that regard that the applicant attended in person before a Registrar of this Court on 10 May 2007, the first Court date in these proceedings, where the issue of costs was raised before the Registrar in terms of costs for the day in the proceedings, and I note that on 10 May 2007, the applicant signed short minutes of order which became orders of the Court and on that day an interpreter in the Mandarin language assisted the applicant before the Court. By way of Order 12, the Registrar made orders that the costs of “today,” (that is, the costs of 10 May 2007), “are costs in the proceedings.”
Similarly, the applicant appeared at a callover before another Registrar on 22 June 2007 where, again, the applicant was assisted by an interpreter in the Mandarin language. Again, the Registrar made orders on that day, order to costs of “today,” (that is, the costs of 22 June 2007) are “costs in the proceedings.” I am satisfied, therefore, in all the circumstances, that the applicant, in any event, should have been alive to the issue that matters of this type do attract possible cost orders.
As to the amount of $2,230, that the Minister seeks, I note that this is less than half the amount that would have been available to the Minister under the relevant schedule to the rules of this Court, (that is, $5000) In any event, bearing in mind the work that has been done by the Minister’s legal representatives, I am satisfied that the amount sought is a reasonable amount in all the circumstances and will make the order as sought by the Minister.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 11 February 2008