SZKON v Minister for Immigration and Citizenship (No 2)
[2008] FCA 204
•25 February 2008
FEDERAL COURT OF AUSTRALIA
SZKON v Minister for Immigration and Citizenship (No 2) [2008] FCA 204
SZKON v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2198 OF 2007GRAHAM J
25 FEBRUARY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2198 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKON
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
25 FEBRUARY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent Minister’s costs
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2198 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKON
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
25 FEBRUARY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant, who is identified for the purposes of these proceedings as ‘SZKON’, was born in Henan in the People’s Republic of China on 19 September 1964.
On 21 November 2005, he was issued with a passport by the People’s Republic of China.
On 29 August 2006 he left the People’s Republic of China and arrived in Australia on the following day, namely, 30 August 2006.
On 11 September 2006, he lodged an application for a Protection (Class XA) visa. That application was refused by a delegate of the Minister on 16 November 2006.
On 28 December 2006 the appellant lodged an application for review with the Refugee Review Tribunal (‘the Tribunal’).
By letter dated 24 January 2007, the appellant was invited to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The Tribunal’s letter indicated that the Tribunal had considered the material before it in relation to his application for a Protection (Class XA) visa but was unable to make a decision in his favour on that information alone. He was advised that he could also ask the Tribunal to obtain oral evidence from another person or persons.
A somewhat confusing response to the hearing invitation was apparently sent on behalf of the appellant to the Tribunal on 6 February 2007. The form indicated that the appellant did not wish to attend a hearing, but indicated that he would need an interpreter from the Mandarin language into the English and vice versa.
In fact, the appellant attended a hearing before the Tribunal on 12 March 2007. On 28 March 2007 the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa.
On 1 May 2007, the appellant filed an application in the Federal Magistrates Court of Australia, seeking the issue of constitutional writ relief in respect of the decision of the Tribunal.
An amended application was apparently filed on or about 18 July 2007. That application was heard on 30 August 2007 and on 23 October 2007 the learned Federal Magistrate handed down his reasons for judgment and ordered that the application be dismissed and that the appellant pay the respondent Minister’s costs fixed in the amount of $4,000.00.
On 8 November 2007 the appellant filed a Notice of Appeal in this Court, appealing from the whole of the judgment of the Federal Magistrates Court of Australia given on 23 October 2007.
It is important to remember that proceedings before the Tribunal are not adversarial but inquisitorial. The Tribunal is not in the position of a contradictor of a case being advanced by an applicant. A Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out. It is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross‑examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an appellant chooses not to embark on (see per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]-[58]). The Act does not require the Tribunal actively to assist an applicant in putting his or her case, nor does it require the tribunal to carry out an inquiry in order to identify what that case might be (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]).
Under s 65(1) of the Migration Act 1958 (Cth) (‘the Act’) the Minister, after considering a valid application for a visa is to grant it or to refuse it depending on whether or not the Minister is satisfied or not satisfied of certain matters. One of the matters upon which the Minister must be satisfied is that ‘the other criteria for it prescribed by this Act or the regulations have been satisfied’.
The relevant criteria in the case of a Protection (Class XA) visa is set out in s 36(2) of the Act which calls into consideration the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as ‘the Refugees Convention’).
The appellant claimed to be a refugee within the meaning of the Refugees Convention because ‘owing to well-founded fear of being persecuted for reasons of … religion, …membership of a particular social group or political opinion’ he was ‘outside the country of his nationality and’ was ‘unable, or owing to such fear, unwilling to avail himself of the protection of that country’.
The appellant claimed to be a refugee because of his practice of Falun Gong and the persecution of adherents of Falun Gong by the authorities in the People’s Republic of China. He claimed that prior to his departure from China he had personally experienced persecution and claimed that if he returned to China he would be persecuted again.
The Tribunal had before it the Department’s file relating to the appellant, the material referred to in the Minister’s delegate’s decision and other material available to it from a range of sources. It had regard to the written statement accompanying the appellant’s application for the Protection (Class XA) visa and to the oral testimony given by the appellant at the Tribunal hearing on 12 March 2007. It also had regard to supplementary material provided by the appellant to the Tribunal on 22 March 2007; that is to say, some six days before the Tribunal Member reached his decision, which was ultimately handed down on 24 April 2007.
The supplementary material consisted of one and a half pages of closely typed material, which was in part a commentary on the manner in which the appellant had presented his evidence before the Tribunal Member and his desire to make sure that his case was comprehensively and carefully recorded for the Tribunal’s assistance. It was accompanied by a letter directed to the Tribunal, which had apparently been brought into existence on 18 March 2007 and apparently interpreted on 21 March 2007 before being lodged with the Tribunal on 22 March 2007.
The Tribunal said in its ‘STATEMENT OF DECISION AND REASONS’ under the heading ‘FINDINGS AND REASONS’:
‘The central claim of the applicant is that he was a practitioner of Falun Gong in China and as a result, he was subject to persecution involving detention and torture and that his family suffered discrimination. In support of his case, the applicant further alleges that he has joined a Chapter and been practising Falun Gong since he arrived in Australia. In this respect, the applicant also impliedly makes a sur place claim for protection.’
The Tribunal relied in part upon the provisions of s 91R(3) of the Act to support the conclusions which it ultimately reached. Section 91R(3) provided:
‘91R(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.’
In respect of the appellant’s claims of membership in the Falun Gong, the Tribunal Member would appear to have been concerned about an apparent lack of knowledge on the part of the appellant of rudimentary elements of the practice of Falun Gong. The Tribunal Member said:
‘In spite of the applicant’s claims that he was a member of the Falun Gong and that he joined the organisation in late 1999 or early 2000, the applicant could not provide any credible information to the Tribunal to corroborate his claims. The Tribunal regards it as important that when the applicant was asked about basic issues relating to Falun Gong he was not able to provide any answers that inspire confidence in his claims that he has been a practitioner of the organisation since 2000.’
The Tribunal Member said:
‘The absence of any credible evidence of past association with the Falun Gong coupled with his lack of knowledge about basic elements of the organisation in spite of his claims of current association with the organisation leads the Tribunal to conclude that the applicant has joined the Falun Gong in Australia for the purpose of strengthening his claims before the Tribunal and the Department for a Protection Visa. The Tribunal does not regard the applicant’s sur place claims as genuine’
In relation to the claims of persecution made by the appellant, the Tribunal Member said:
‘All these factors combined lead the Tribunal to the conclusion that the applicant’s claims that he was a member of the Falun Gong and that he was subject to torture and detention in China as a result of his association have been fabricated to strengthen his claim for a Protection Visa in Australia. His claims are rejected accordingly.’
The Tribunal was not satisfied that the appellant was a person for whom Australia had protection obligations under the Refugees Convention. Therefore, the appellant did not satisfy the criterion set out in s 36(2) for a protection visa.
The grounds of appeal relied upon by the appellant were as follows:
‘1.Refugee Review Tribunal had bias against me and did not make fair decision for my application.
2.I clarify my points at the hearing of the Federal Magistrates Court, but the Judge did not give me a chance to provide more document. The Judge refused my application on Oct. 23. It is not fair.
3.I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.’
The record of the tribunal member’s decision included the following paragraph:
‘The Tribunal asked the applicant if he had any other information to provide to assist his claims. The Tribunal asked if for instance he has any documentation that indicates that he was detained in China. He said he has no documentation. The Tribunal also asked him how the authorities could have given him a passport to help him leave the country if indeed he was of adverse interest to them. He said once he was released from detention there was no barrier to his obtaining the passport.’
In this context, the appellant submitted the additional information to which reference has been made on 22 March 2007 which information reached the Tribunal some six days before the Tribunal Member decided the Application for Review as he did. Nothing was advanced in the additional information to indicate that there was more information again which the appellant wished to place before the Tribunal for its consideration.
On the hearing of the application before the learned Federal Magistrate, an opportunity was provided to the appellant to give evidence about the claimed denial of an opportunity to present additional material to the Tribunal. On the hearing of the appeal before me, the appellant said that the Tribunal had refused his application without obtaining additional documents from him. He thought that he had further time available to him to submit further documents. He did not specifically ask the Tribunal to give him more time.
When the matter was before the learned Federal Magistrate the appellant gave the following evidence on 30 August 2007:
‘Before the hearing was concluded I asked the member whether I can show them [sic] the books and evidence, however, the member said to me they can only consider the evidence that is related to either my mum or me. To my opinion, I think those books are the evidence related with my mum and me. [The books referred to were the subject of cross-examination by counsel for the Minister where it was elicited that they provided general information about the practice of Falun Gong.] Besides the member also told me I could remit him or her and [sic] further evidence. For example, like the detention certificate. After the hearing I also talked to my family members and they said to me they could use the quanshi to fix up this matter.
While I was thinking about how to bring those evidence to Australia, for example, the detention certificate as well as the written testimonial from my mum – while I was trying to think about how to bring those documents to Australia, my application was refused by RRT. I therefore think they did not give me enough time to provide the further evidence. Before I got all the documents in place they turned down my application.’
When cross-examined by counsel for the Minister the appellant gave answers which were inconsistent with his evidence-in-chief. The relevant evidence included:
Counsel for the Minister: ‘I just have a couple more questions. Do you accept that at the conclusion of the hearing the Tribunal asked you if you had any further information to assist your claims?’
Appellant: ‘Yes.’
Counsel:‘And do you accept that the Tribunal also asked you at the end of the hearing whether you had any documentation that indicated you had been detained in China?’
Appellant: ‘Yes.’
Counsel:‘And you said at the hearing that you had no such documentation.’
Appellant: ‘Yes.’
Counsel:‘And what you have just told his Honour about the detention certificate was something that came to your knowledge after the Tribunal hearing. Is that the case?’
Appellant:‘Yes. I did not consider the importance of the detention certificate in the hearing, but I began to consider its importance after the hearing.’
...
Counsel:‘... But you didn’t ask the Tribunal to give you an extension of time in which to provide further material, did you?’
Appellant:‘Yes. I did not ask for the extension of time because I thought I could send those documents here very shortly but my application was turned down much shorter that [sic] I bring those documents here.’
In the light of the evidence to which I have just referred I am not satisfied that the Tribunal denied the appellant procedural fairness. The Tribunal Member clearly took into account the supplementary information that was provided by the appellant on 22 March 2007. When that material was provided, no further request was made for an opportunity to provide further evidence again. It seems to me that there was no wrongful refusal by the Tribunal Member of any evidence that was personal to the appellant or any member of his family by the Tribunal. If the Tribunal Member was invited to but failed to accept evidence of a book or books containing material about the practice of Falun Gong generally then the Tribunal Member did not relevantly fall into error.
On the hearing of the appeal the appellant made an application for the Court to receive additional fresh evidence going to the merits of his application before the Tribunal. That application was refused.
On 7 January 2008 the appellant provided a two-and-a-half page typed submission to the Court in support of his notice of appeal. That submission included:
‘My failure in the Federal Magistrates Court is unexpected. I feel frustrated and upset. I am worried that if I return to China, I would again suffer from detention and persecution and once again would be deprived of my freedom.
Now I would like to provide some photos and witnesses about my participating in Falun Gong in Sydney. All these things can prove that I am a Falun Gong practitioners and a participant of a series of Falun Gong activities.’
It seems clear to me that the Tribunal did not commit any jurisdictional error in considering the appellant’s case. It is not open to this Court, nor was it open to the Federal Magistrates Court, to provide the appellant with a merits review, which in essence is what he now seeks. In support of his grounds of appeal the appellant submitted orally that the Tribunal Member did not listen to his point of view. He made a similar allegation in respect of the learned Federal Magistrate. It seems to me, having regard to the detailed reasons for the decision of the Tribunal Member and the judgment of the learned Federal Magistrate, that neither of these submissions bears analysis.
Plainly in both the Tribunal and in the Court, due consideration was given to the matter upon which the appellant was relying and the arguments that were advanced by him as to why he should be found to be a refugee and as to why there may or may not have been an error in the consideration of the matter in the Tribunal. In my opinion the appeal should be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 29 February 2008
The Appellant appeared in person. Counsel for the First Respondent: G R Kennett Solicitor for the First Respondent: Sparke Helmore The Second Respondent filed a submitting appearance. Date of Hearing: 25 February 2008 Date of Judgment: 25 February 2008
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