SZKRE v Minister for Immigration - [2009] FMCA 1201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKRE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1201

MIGRATION – RRT decision – Chinese applicant claiming persecution based on Falun Gong activities – disbelieved by Tribunal – no evidence supporting an apprehension of bias – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration & Citizenship v SZJGV [2009] HCA 40
Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515

Applicant:

SZKRE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1695 of 2009

Judgment of:

Smith FM

Hearing date:

26 November 2009

Delivered at:

Sydney

Delivered on:

26 November 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr D Godwin

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 $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1695 of 2009

SZKRE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australian on a temporary business visa in June 2006. On 7 August 2006, she applied for a protection visa. Her application did not disclose any assistance being given, and attached a statement signed by the applicant in Chinese and English setting out a history upon which she claimed to fear persecution if she returned to the Peoples Republic of China.
She claimed that in 2004 she had been advised by a friend to take up the practice of Falun Gong to assist her with a health problem. She learnt Falun Gong, and practised it in that person’s home and in her own home, since she was aware that it was banned. She also read a book on Falun Gong, and “gained some basic knowledge about Falun Gong”. She continued to practice in secret in the courtyard of her home, but said:
However the CCP regime and its accomplices finally discovered that I was practicing Falun Gong. It happened on 30 December 2005 when the chief of Security Department of my factory Mr L summoned me to his office. He told me someone informed I was practicing Falun Gong at home. I vehemently denied this accusation. I replied that CCP had banned Falun Gong. I wasn’t a Falun Gong practitioner in the first place. Why should I take the risk of disobeying the CCP order? I had no knowledge of Falun Gong. If the authority still did not believe me, someone could come to my home to have a check.
From that day on, I dare not practice Falun Gong, as I became aware that the authority might raid my home at any moment. If I were caught in such circumstance, I would be certainly be sent to labour reform camp for brutal persecution.
After I suspended my practice for a month, my left side headache came back again. I still went to work by taking medicine or visiting doctor. However, the pain was just getting worse and sometimes the medicine won’t help at all. If this situation continues, I couldn’t imagine how I could spend the rest of my life with this illness.
After the discussion with my family members, I decided to go to a country where freedom of belief is respected so that I can continue with my Falun Gong practice. So my family raised the money for me to obtain a business trip visa to Australia.
The applicant referred to arriving in Australia, and commencing to practice Falun Gong on the night of her arrival and since then.
She did not present any corroboration of her claims to the Department of Immigration, and a delegate refused the application on 2 November 2006. The delegate said:
There are a number of factors which cast serious doubt on the credibility of her claims, and the genuineness of her claimed fear of Convention related persecution.
The applicant appealed to the Tribunal. Her review application was accompanied by a statement in English and Chinese signed by the applicant, in which she referred to her earlier statement. It also said:
I hope you could understand the whole experience of my practicing Falun Gong after reading my statement. In December 2005 the Chinese authorities found my practicing Falun Gong secretly at home. But I denied it resolutely. And I realised if I continue practicing, I would be found and must be arrested sending to labour camp.
The applicant included with the application for review a number of photographs, which were said to show her participating on different dates in protest demonstrations by Falun Gong supporters in Sydney.
She attended a hearing of the Tribunal on 19 March 2007, at which she presented a further statement in Chinese with a translation. This gave more information about her background, and suggested that she came from a family which had suffered discrimination during the Cultural Revolution. It also said:
I started practising Falun Gong through the introduction of my friend in September 2004. At that time, I wanted to cure my illness, so I started to practice. Under the family influence, I have always been doing everything with care and in low profile since I was young. I was just a normal Falun Gong practitioner. When the Chinese government started its crackdown on Falun Gong, some practitioners were illegally detained and interrogated. I was also questioned for my practice of Falun Gong. I was threatened if I continued my practice and refused to cooperate with government, I would be imprisoned. My family members might also be implicated. I was frightened at these words. I had the bitter experience since my childhood how our life was under the rule of the Communist Party. I did not want my elderly mother and my loved children to be implicated. I agreed that I would cooperate with the authority and promised not to practice Falun Gong anymore. Under this circumstance, I got away with my encounter with the authority regarding this issue.
The applicant was questioned about the new element in this third statement, which suggest that she had admitted practising Falun Gong when questioned. She told the Tribunal that after she had been questioned at her factory she had also been questioned by police, detained, held for two days, and compelled to write an admission before being released. The Tribunal put to her that this was a significant new claim, which had not previously been made, and which appeared inconsistent with her previous statements.
Clearly there was an important inconsistency in her evidence, and it remained a difficulty confronting the applicant in the pursuit of her refugee claims throughout the subsequent proceedings in the Tribunal.
The review proceedings became protracted because two of the Tribunal’s decisions were set aside by consent orders of this court. The Tribunal’s first decision was set aside on 30 January 2008, based upon a concession by the Minister that the applicant had been given insufficient warning of the issues arising under s.91R(3), in relation to the applicant’s reliance on her Falun Gong activities in Australia.
A further hearing was held by another member of the Tribunal on 2 May 2008, at which the inconsistency which I have referred to above, and other problems in the applicant’s evidence, were again presented to the applicant for comment. The applicant was assisted and represented by a solicitor in the course of that proceeding, and it must have been manifest to the applicant by that stage that, by reason of s.91R(3), she would need to persuade the Tribunal that her conduct in Australia was not for the sole purpose of strengthening her claims to be a refugee.
A second decision of the Tribunal was then made, and it was set aside by order of this Court on 1 December 2008. The Minister conceded that the Tribunal had made a jurisdictional error of the type which was then established by the Full Court’s decision in SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515. That is, that the Tribunal had inadvertently relied upon some conduct of the applicant in Australia when making findings that she was not a genuine Falun Gong practitioner in China or Australia.
After the second remitter, the applicant was invited to a third hearing, and she attended it on 4 March 2009. A transcript of that hearing is not in evidence although, as with the previous hearings, the applicant had been provided with a copy of the sound recording. I am therefore left with the Tribunal’s lengthy description of the hearing in its statement of reasons, and I accept that description.
At the third hearing, that the reconstituted Tribunal thoroughly put to the applicant the important concern which I have identified above. It also raised concerns arising from her other evidence, including concerns arising from various explanations which had been presented by the applicant about the omission from the first statement, and other matters. These included the improbability that she would have been permitted to leave China on her own passport if she had admitted to practising Falun Gong, inconsistencies in her evidence about when she ceased to be employed at the factory, her explanations about her inconsistent evidence, inconsistencies in evidence about her husband’s employment, concerns about a purported corroborative letter from a friend in China which appeared to have been contrived, and concerns arising from the contents of her business visa application and her responses when questioned about this. The applicant was also questioned about her practice of Falun Gong in Australia, and about previous evidence she had given in response to questions aimed at testing her knowledge of Falun Gong philosophies.
Essentially, it appears that the present Tribunal member had very thoroughly digested the previous evidence given by the applicant in documents and at previous hearings, and used the third hearing to afford the applicant the fullest opportunity to revisit concerns previously identified and new concerns arising from her most recent evidence. The applicant also appears to have been given a general opportunity to put forward any new information or new submissions, including at the end of the hearing (see paragraph [77]), although it is difficult for me to form a clear view as to this in the absence of a transcript.
The presently constituted Tribunal made a decision on 30 June 2009. It affirmed the delegate’s decision made in 2006. In its statement of reasons, it carefully recited the whole of the previous proceedings and evidence given by the applicant, including at the three hearings she had attended. The Tribunal referred to general information about the treatment of Falun Gong supporters in China and the treatment of descendants of the landlord class.
In its findings and reasons, the Tribunal put at the forefront of a conclusion adverse to the applicant’s credibility, the concern about the inconsistencies in her three written statements submitted to the Department and the Tribunal, and the applicant’s explanations about them. The Tribunal rejected her various explanations, and said at paragraph 92:
The Tribunal considers it is highly implausible that the applicant would not have provided details in any of these statements of the second occasion on which she came to the adverse attention of the authorities, namely the detention and questioning by the police after her first encounter with the head of security at her workplace, if she had actually been detained and questioned by the police.
The Tribunal considered her evidence about the preparation of her first three statements, and decided that it was “highly implausible and inconsistent”. It concluded that she had “in fact” written all the statements, and considered that “her account on this issue reflects adversely on her credibility”. The Tribunal identified other inconsistency in her evidence of being questioned by the police, and thought that it was also implausible.
The Tribunal addressed statements from her husband and his friend purporting to corroborate her detention, which had been provided by the applicant to the Tribunal after her attendance at the hearing held after the first remitter. It said at paragraph 100:
The Tribunal is not satisfied the evidence in these letters overcomes the adverse findings above regarding the applicant’s own evidence of her circumstances in China. The Tribunal is not satisfied, given the findings above, that the statements reflect the applicant’s true circumstances and therefore does not give them any weight.
101. The Tribunal considers that the applicant’s evidence on the circumstances in which she came to the adverse attention of the authorities is highly adverse to her claims that she had practised Falun Gong in China and had experienced problems from the authorities as a result. The Tribunal also considers that the applicant’s evidence on these issues reflects adversely on her credibility generally.
The Tribunal then identified various other reasons for forming an adverse view of the applicant’s general credibility. These included the matters put to her at the hearing concerning her cessation of employment, her letter from her friend, her evidence about her business visa application, the circumstances in which she obtained her passport in March 2005, and her business visa. The Tribunal made a positive finding that it did not “accept that the applicant was a Falun Gong practitioner or had any involvement in Falun Gong in China”.
The Tribunal also referred to the claim in the applicant’s third written statement that her grandfather had experiencing problems during the cultural revolution as a member of the landlord class, and that her family had been “affected by this family history”. It thought that her evidence at two hearings had disclaimed making a protection claim based on this history, and it also said that the independent information suggested that there would be no real chance that she would suffer serious harm if she returned to China on the basis of being a descendant of the landlord class.
The Tribunal then turned to the applicant’s evidence of her Falun Gong practice in Australia. It referred to her claims to have attended practice sessions and public rallies. It assessed her evidence about her knowledge of Falun Gong, and accepted that she had “some basic knowledge”, but concluded that she had gained it in Australia. The Tribunal thought there were some defects in her knowledge which reflected adversely on her motivations. The Tribunal also thought that her photographs were problematic, since all but one appeared to have been taken on one day. It thought that the photographs had been taken because “she wished to place herself in a situation with Falun Gong protestors in order to boost her refugee claims”. It did not accept that she had attended public rallies as a “genuine and committed Falun Gong practitioner”. It said:
the applicant has not satisfied the Tribunal that she engaged in this conduct otherwise than for the purpose of strengthening her claims to be a refugee.
The Tribunal therefore disregarded her conduct in Australia in assessing whether she had a well-founded fear of persecution. These findings reflected the language of s.91R(3).
In paragraph [117] of its reasons, the Tribunal considered a claim by the applicant that she had a concern that she would be arrested if she returned to China, as a result of making a protection visa application and having practiced Falun Gong in Australia. The Tribunal referred to independent evidence in relation to this concern. It referred to its finding that she “was not ever a Falun Gong practitioner”, and said that it did not accept that she had a profile or that she would be imputed with a profile “such that she would come to the adverse attention of the authorities on her return”. It said:
Therefore, after considering the evidence to which the Tribunal may have regard, the Tribunal does not accept that the applicant will come to the adverse attention of the authorities on the basis of having left China for Australia and having made an application for protection in Australia.
The Tribunal concluded:
[118]As the Tribunal does not accept that the applicant has ever practised Falun Gong in China, the Tribunal does not accept that she will be involved in practising Falun Gong in China in any way upon her return. The Tribunal does not accept that she will be imputed as a Falun Gong practitioner if she returns to China.
[119]The Tribunal therefore does not accept that there is a real chance the applicant will be persecuted for reasons of practice of or involvement in Falun Gong, or imputed practice of Falun Gong, if she returns to China now or in the reasonably foreseeable future, whether this claim is regarded as falling under the Convention grounds of religion, membership of a particular social group (such as ‘Falun Gong practitioners’) or imputed political opinion. As a result, the Tribunal is not satisfied that the applicant holds any well-founded fear of any harm for a Convention reason should she return to China.
The applicant now asks the Court to set aside the most recent decision of the Tribunal, and again to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed or whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s application contains two grounds, and these have not been embellished by an amended application, nor explained in any written submissions. They are:
1.The Refugee Review Tribunal failed to consider my application according to s.91R of the Migration Act 1958 because the Tribunal’s bias against me.
2.The Refugee Review Tribunal failed to carry out its statutory duty. The Tribunal didn’t notify me the reason or part of the reasons for affirming the decision of the Immigration Department. The Tribunal failed to consider my application according to s.424A of the Migration Act 1958.
It is unclear whether the first ground alleges a jurisdictional error by a misapplication of the provisions of s.91R(3) or some other part of that section. The Tribunal’s decision does not appear to turn upon the application of any other subsections. In relation to the Tribunal’s treatment of the applicant’s conduct in Australia, it might have been arguable that paragraph [117] reflected some reliance on findings based on the applicant’s conduct in Australia when drawing adverse conclusions about the applicant’s refugee claims.
However, the High Court in the appeal from SZJGV (supra) has now made it clear that such use of findings based on conduct in Australia would not involve a misapplication of s.91R(3) nor give rise to jurisdictional error (see Minister for Immigration & Citizenship v SZJGV [2009] HCA 40). French CJ and Bell J at paragraph [12] adopted the construction that:
para (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in para (b) is satisfied with respect to the relevant conduct.
Crennan and Kiefel JJ adopted a similar construction at [54]:
…the only conduct to which sub-s (3) is directed is that which may be weighed in favour of an acceptance of the person’s claims.
Hayne J’s contrary opinion was in dissent.

It is therefore now clear that the present Tribunal has not made any error in its application of s.91R(3).
Perhaps the better reading of the first ground in the application is, however, not a challenge to the Tribunal’s understanding of the legal effects of s.91R(3), but to the merits of its factual conclusions when applying that provision in support of the bias allegation. In particular, to its conclusion that the applicant had engaged in her Falun Gong activities in Australia, otherwise then for the purpose of strengthening her claims to be a refugee.
In the applicant’s oral submissions to me today, a broader but similar argument was made in support of the claim that the Tribunal had bias against her. This was essentially that the applicant’s refugee claims and her participation in Falun Gong had all been genuine, that the Tribunal’s adverse findings were therefore unfair and wrong, and that therefore the Tribunal must have closed its mind to a genuine assessment of her evidence.
However, I am not persuaded by these arguments. It was the statutory function of the Tribunal to arrive at firm conclusions about the credibility of the applicant’s claims, and the fact that it decided factual issues adversely when making its final decision does not show that it failed to assess all the applicant’s evidence with an open mind, before arriving at its decision. The Tribunal’s adverse conclusions were, in my opinion, open to it on the evidence, and were rationally and reasonably arrived at.
There is no evidence that the Tribunal prematurely arrived at conclusions adverse to the applicant. In particular, there is no evidence suggesting that this occurred before or during the hearing. On the Tribunal’s own description of the hearing it is clear that it was concerned to address perceived problems in the applicant’s evidence arising from her previous evidence to the Tribunal. However, this does not give rise to an apprehension that the Tribunal had a closed mind, but rather shows a concern for procedural fairness to ensure that the applicant had the fullest opportunity to answer the concerns previously identified. Certainly, in the absence of a transcript I am not persuaded that there was anything at the hearing, or in the Tribunal’s previous procedures, providing any evidence of either actual or apprehended bias under principles established in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72], and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32].
In relation to ground 2, the contention that the Tribunal failed to invite written comments under s.424A(1), is unexplained by any written or oral submissions. At today’s hearing I engaged in speculation with the Minister’s counsel as to how the ground could be developed if the applicant were legally represented, and if that representative attempted to give particulars to the ground. However, I was unable to identify any arguable breach of s.424A(1).
It appears to me that all the Tribunal’s reasons for affirming the delegates’ decision firmly rested upon inconsistencies in the evidence given by the applicant to the Tribunal over the period in which her application for review had been before the Tribunal. This includes the Tribunal’s consideration of the applicant’s evidence about her application for a business visa, in which its questioning had referred to the contents of documents presented to the Department of Immigration. On my reading of the Tribunal’s reasoning at paragraph [105], the Tribunal did not rely upon any information in these documents as a reason for finding against the applicant, but, rather, upon the applicant’s responses when questioned about that information. The evidence relied upon was therefore “given” to the Tribunal for the purposes of the review application (see s.424A(3)(b), even if it can be characterised as “information” coming within s.424A(1) as interpreted by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609. The same characterisation can, in my opinion, be given to all the other elements in the Tribunals reasons for affirming the delegate’s decision.
I am therefore unpersuaded that jurisdictional error falling within the second ground of review can be identified in the present case.
I have not been able to identify any jurisdictional error otherwise appearing in the material before me. In my opinion, the Tribunal’s decision was a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 14 December 2009