SZLCO v Minister for Immigration - [2008] FMCA 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLCO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 197

MIGRATION – RRT decision – Chinese applicant fearing persecution for Falun Gong practice – disbelieved by Tribunal – no jurisdictional error established.

Migration Act 1958 (Cth), ss.91R(3), 424A, 424A(1), 424A(3)(a)

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant:

SZLCO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2300 of 2007

Judgment of:

Smith FM

Hearing date:

13 February 2008

Delivered at:

Sydney

Delivered on:

13 February 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Australian Government Solicitor

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 2300 of 2007

SZLCO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in July 2006, and on 17 August 2006 he applied for protection against return to China. His application for a protection visa included a brief statement of his refugee claims. It said that he had held a managerial position in a business in China, and had come to Australia in the course of his employment. He claimed that he had become a Falun Gong practitioner in 2001, and had practised with some of his colleagues. He said: “In 2002, I was called to police station for brain wash”. He said they kept him for three days, and suggested that they had tortured him “physically and mentally in order to make me telling them details of Falun Gong”. He said:
Our daily life became abnormal; we could not enjoy our basic human rights. Recently, when I found that we would have a trip to Australia, I bribed officers to put my name on the travelling list, I want to have normal life and I want to have the freedom of belief.
His visa application did not contain any details of these events, and no corroborative evidence was given to the Department of Immigration, nor subsequently to the Refugee Review Tribunal. A delegate refused the visa application on 9 September 2006, and the applicant explained his claims further to the Tribunal at a hearing which he attended on 18 December 2006. The Tribunal later sent him two s.424A letters, inviting comments on matters of concern to it, which ultimately became the reasons for its decision to affirm the delegate’s decision.
In its decision handed down on 21 June 2007, the Tribunal gave four reasons for not accepting that the applicant was a witness of truth and for its forming the view that “the applicant has created his claims in order to obtain the visa sought”.
First, the Tribunal found an inconsistency between his written statement and his oral evidence, as to the circumstances in which he was interrogated at the police station. In his statement he had said he was “called to the police station”, but in oral evidence he said he had been taken to the police station by police from his place of work. The Tribunal did not accept his explanation: that he intended to mean the same thing.
The second point made by the Tribunal was that the applicant could not recall the day of the week on which he was arrested nor on which he was released, especially since the latter was a Sunday according to the calendar. It also thought he could not recall the dates clearly.
The third point was that the applicant had explained his travel to Australia differently, in the opinion of the Tribunal.
The fourth point was that the applicant had not mentioned to the Department that the police had attacked him with electronic rods and damaged his hearing. The Tribunal thought that if he had suffered serious physical harm to the extent that his ears were damaged, some mention of this would have been made in his protection visa application. It rejected his explanation, which was that he did not feel it necessary to put this detail in his visa application.
Having concluded that the applicant was not a witness of truth, the Tribunal disbelieved his claims to have been a Falun Gong practitioner or supporter in China, and said that it was satisfied that he did not “flee China fearing persecution”. It considered that there was not a real chance that the applicant would suffer harm now or in the foreseeable future if he were to return to China. It considered his claim to have practised Falun Gong in Australia, but was not satisfied about that, and also considered that it was required to be disregarded by reason of s.91R(3) of the Migration Act 1958 (Cth).
The applicant now asks the Court to set aside the Tribunal’s decision, and to send the matter back to the Tribunal to reconsider his refugee claims. I can only make these orders if I am satisfied that the decision was affected by jurisdictional error. I do not have authority to decide whether the applicant’s refugee claims are true, nor whether he should be granted a protection visa or any other permission to stay in Australia.
The applicant’s grounds are set out in an application, and are repeated in an amended application. Unfortunately, this uses a precedent which is lacking in any particularly showing its relevance to the present case.
The grounds in the amended application are:
1.The Tribunal had bias against me and failed to consider my application based on evidence. The decision to refuse my application was not supported by sufficient evidence and materials.
2.The Tribunal failed to consider the information provided in response of the letter sent to me under S424A of the Migration Act 1958. The Tribunal failed to understand that explanation. I was not given an opportunity to comment upon the relevant independent information provided by the Tribunal.
3.The Tribunal referred some irrelevant information for the consideration of my application.
When invited today to explain his arguments, the applicant identified two of the four points made by the Tribunal which I have set out above, and responded to them. He submitted that the Tribunal had unreasonably expected that he would recall the day of the week on which he was arrested four years earlier, and that it should have accepted his explanation of being unable to recall it.
In relation to the Tribunal’s disbelief of his claim that he suffered an injury to his hearing, he submitted that he had evidence of this at home in China, but had not dared to bring it with him to Australia. He said that he had told this to the Tribunal, and submitted that the Tribunal should have accepted his explanations.
These two points made by the applicant have some substance, in so far as they challenge the merits of the Tribunal’s reasoning. I accept that the Tribunal’s reliance on these two points, even with its other points, is open to argument, as to whether they provide compelling reasons for disbelieving the applicant entirely. However, the Tribunal was in a difficult position of having to assess the truth of a history which was entirely unsupported beyond the assertions of the applicant. Other Tribunal members might have reasoned differently, and possibly might have accepted the applicant’s claims, but I am not persuaded that the Tribunal’s reasoning was so irrational or unreasonable as to show that it did not make a genuine attempt to exercise its duty to determine the review on its merits (cf. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [9], McHugh & Gummow JJ at [36]‑[37], Kirby J at [81], [128], [137]).
Nor does the Tribunal’s reasoning suggest to me that an informed lay observer might apprehend that the Tribunal might have brought a closed mind to its review before arriving at its decision (cf. Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 at [27]‑[32]). It is difficult to arrive at such a conclusion merely from the contents of the Tribunal’s ultimate statement of reasons. The applicant has not presented a transcript of the hearing held by the Tribunal, nor pointed to any other evidence indicating that the Tribunal might have brought a closed mind to considering his evidence. Indeed, the applicant today said to me that he understood that the Tribunal was required to ask questions of him, to test the truth of his claims, and he did not make any particular criticism of how the Tribunal had framed its questions at the hearing.
I am therefore not satisfied that the applicant has established that the Tribunal “had bias against me”, nor that it failed to consider his application by reference to his evidence. In my opinion, the Tribunal’s conclusion was open to it on the material before it. The Tribunal was not obliged to grant the protection visa unless it was satisfied that the applicant met the criteria of a refugee.
In relation to Ground 2 in the amended application, I am not satisfied that any breach of s.424A(1) is shown in the material before me. In the light of the High Court’s opinions in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], the Tribunal’s invitation for comments on inconsistencies in the applicant’s claims may not have been necessary.
In fact, the Tribunal’s reasoning did not rely upon any general country information about the circumstance of Falun Gong practitioners in China, and even if it did, the Tribunal would not have been obliged to invite comments upon it (see s.424A(3)(a)).
In relation to Ground 3, I am unable to identify any irrelevant information which was taken into account by the Tribunal when arriving at its decision.
The applicant’s other submissions to me today were that he would be able to get corroborative evidence from his wife in China, if this was needed, and that he still had a fear that if he returned to China he might be persecuted by reason of his past association with Falun Gong. However, those points do not raise any jurisdictional error on the part of the Tribunal, and I do not have power myself to consider his refugee claims, nor to order a further hearing unless jurisdictional error has been established.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 February 2008