SZLDU v Minister for Immigration

[2008] FMCA 583

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDU v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 583

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal ignored the applicant’s evidence or deemed procedural fairness – whether unreasonableness.

Migration Act 1958 (Cth), s.424A

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant: SZLDU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2435 of 2007

Judgment of: Barnes FM

Hearing dates: 11 December 2007, 26 February 2008

Date for Last Submission: 8 April 2008

Delivered at: Sydney

Delivered on: 15 May 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2435 of 2007

SZLDU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 17 July 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, a citizen of the People's Republic of China, arrived in Australia in February 2007 and applied for a protection visa.  The application was refused and he sought review by the Tribunal. 

2. The applicant claimed to have suffered persecution in China for his Falun Gong activities.  He claimed that he was introduced to Falun Gong in May 1999 and continued to practise "underground", often in groups of seven or eight, notwithstanding that the Chinese government banned Falun Gong in July 1999.  He also claimed that he read books about Falun Gong and spread Falun Gong to others.

3. He claimed that in February 2004, whilst practising Falun Gong with six others at his home, he was detained by the police and charged with “illegal gathering”.  He claimed that the police also confiscated Falun Gong related materials.  He was sent to a labour reform centre for one year without any trial.  He claimed that he was tortured, beaten and forced to do a lot of heavy work while in the centre and that his family was often harassed by the police.  He claimed that after being released he lost his previous job and could not find a new job.

4. The applicant made no further claims in his review application. He attended a Tribunal hearing on 6 June 2007. On 7 June 2007 the Tribunal wrote to the Applicant under s.424A of the Migration Act 1958 (Cth) inviting him to comment on certain information, in particular contradictions between the statements he made in his protection visa application and the accompanying statement and what he told the Tribunal at the hearing. The applicant responded to the letter of 7 June 2007 by facsimile letter dated 19 June 2007. On 19 June 2007 the Tribunal wrote again to the applicant under s.424A of the Act. That letter was an amended version of the original s.424A letter which corrected a reference to the applicant’s addresses. The applicant also replied to that letter by facsimile letter dated 27 June 2007.

5. In its reasons for decision the Tribunal summarised the applicant's written claims and the claims made at the hearing and the s.424A letters and the applicant's responses.

6. In its findings and reasons the Tribunal stated that it did not find the applicant to be a credible witness for a number of specified reasons.  It had regard to inconsistencies between what the applicant stated in writing and at the hearing as put to him in the Tribunal letter of 19 June 2007.  The Tribunal stated:

   The applicant claimed in his statement that in May 1999 Falun Gong was very active in Shenyang and he was introduced to Falun gong at that time by a friend. The statement also stated that he often practiced in groups of 7 or 8.  The applicant also claimed in his statement that he: really believed in the holiness of “truthfulness, compassionate and forbearance” and that changed [his] life.  However, in contradiction to this the applicant stated at the hearing that he went with his friend very often, more than 10 times, he was in a playful mood and he was not really learning anything.  The applicant helped them move tables and chairs around and sometimes he distributed pamphlets.  The applicant did not practice and he did not do any of the exercises as they looked exhausting.  The applicant stated that he did not believe in Falun gong at this time.  In both of his responses he also stated that in May 1999 his association with Falun gong was:  not spiritually connected which is also contrary to what was stated in the statement.

   The applicant also claimed in his statement that when he practised in groups of 7 or 8 (from May 1999) they would share the words of Master Li and read books about Falun Gong.  He also claimed in the statement that when the police raided his home they subsequently confiscated Falun gong related material.  In contradiction to this the applicant stated at the hearing he had not read anything Master Li had written.  In both of his responses he again changed what he claimed in relation to reading anything Master Li had written.  He claimed that the pamphlets he handed out contained Master Li’s words and when he was with his group they sometimes discussed Master Li’s words and he only listened sometimes.

   There are significant contradictions between the applicant’s statement and what was stated at the hearing in relation to the events that lead up to when he claimed he was arrested and then detained.  In his statement he claimed that in February 2004 he and 6 practitioners were practicing Falun gong at his home when the local police barged in.  The police stated that they had been following him for a long time and charged him with illegal gathering.  Afterwards, the police confiscated Falun Gong related materials and detained him at the local police station.  In contradiction to this the applicant claimed at the hearing that on 20 February 2004 he went to his aunt-in-law’s home as she was going to take him to study Falun gong, however, she had visitors so she arranged for someone else to take the applicant.  The applicant further claimed that there were 5 people and, with him, there were 6 people.  He was picked up in a taxi by the other 5 and taken to Song Quan compound to the underground car park where the Falun Gong study sessions were held.  The study session was at 2:00 pm and the police raided the compound at 3:10 pm.  The contradiction between what the applicant stated in his statement and what he stated at the hearing was set out in the Tribunal’s letter of 19 June 2007.  In both responses the applicant stated that there could have been a mistake during his communication with his agent or an error in translation.  However, at the hearing the applicant stated in relation to the statement, that he told his agent what happened to him in PRC and about his Falun gong.  He further stated that after the statement was completed it was translated and read back to him.  He signed the statement after it had been read back and he stated at the hearing that the statement was in accordance with what he had told his agent.  The applicant also provided a third version of what happened in both of his responses.  He claimed that the real scenario was that his friends came to his house to pick him up and they went by taxi to the underground parking area.  The applicant’s story has changed to explain inconsistencies. 

7. The Tribunal also had regard to the fact that at the hearing the applicant confirmed that in Australia he had not done anything in relation to his Falun Gong beliefs. 

8. Based on this material the Tribunal found that the applicant was not a truthful witness, that his statements to the Department and to the Tribunal lacked credibility and that he was not a Falun Gong practitioner. It found further that the applicant's home had not been raided by the police in February 2004 as claimed or that he was in a Falun Gong training session in an underground car park that was raided by the police. The Tribunal found that the applicant had not been arrested, detained in a local police station and beaten because he was a Falun Gong practitioner or detained in a labour reform camp for that reason.  It found that if he returned to the People's Republic of China in the reasonably foreseeable future the applicant would not practise Falun Gong.

9. The Tribunal concluded that there was no plausible evidence before it that the applicant had suffered persecution in the PRC because of his imputed political opinion or for any other Convention reason.  Nor did the evidence establish that there was a real chance that the applicant would suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returned to China.  The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason if he returned to China in the foreseeable future.

10. The applicant sought review by application filed in this Court on 8 August 2007. The application contains two generally expressed and unparticularised grounds. No written submissions were filed by the applicant.

11. The first ground in the application is an unparticularised claim that the Tribunal ignored the applicant's evidence. It is not established that the Tribunal ignored the applicant's evidence in the sense that it failed to have regard to any integers of the applicant's claims or otherwise fell into jurisdictional error. The applicant's written and oral claims were addressed and together with his responses to the s.424A letters formed the basis for the Tribunal's credibility findings. It did not accept that the evidence submitted by the applicant was plausible based on inconsistencies and taking into account and addressing the applicant's explanations for such inconsistencies. Findings of credibility are a matter for the Tribunal. (See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). No jurisdictional error is established on the basis contended for in the first ground.

12. The second ground is that procedural fairness was denied, that the applicant was a Falun Gong practitioner and he feared to return to China.  Insofar as the applicant seeks merits review, merits review is not available in this Court. 

13. More generally, there is nothing in the material before the Court to support any contention that there was a failure to accord the applicant procedural fairness generally or in the sense of a failure to comply with any procedures under the Migration Act. The Tribunal invited the applicant to a hearing which he attended. The Tribunal account of what occurred in that hearing (the only evidence before the Court of the Tribunal hearing) indicates that it put its concerns to him (particularly in relation to inconsistencies in his evidence) during the course of the hearing, notwithstanding that it was not obliged to provide him with a running commentary on his evidence. (See SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 at [29]; Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [54]). There is nothing in the material before the Court to provide a basis for any inference that the applicant was not provided with an opportunity to respond to the Tribunal's concerns. (See NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]).

14. The Tribunal also put inconsistencies to the applicant in writing. Whether or not it was obliged to comply with s.424A(1) in relation to such inconsistencies (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] – [22]), the Tribunal did so. No failure to comply with s.424A or lack of procedural fairness in this respect is apparent. Moreover, having realised that the first s.424A letter was affected by errors in relation to the addresses provided in the protection visa application, the Tribunal sent a second s.424A letter providing the requisite period of notice (see s.424B(2) and reg.4.35). It considered the applicant's responses to each of those letters. In light of s.422B of the Act, it has not been established that the Tribunal was under any further obligation (see Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214).

15. In oral submissions the applicant contended that the Tribunal's decision was unreasonable.  He did not elaborate on this other than to take issue with the fact that his submissions were not accepted.  This contention does not establish unreasonableness, let alone unreasonableness such as to constitute jurisdictional error. 

16. It has not been established that the decision was unreasonable.  The Tribunal's finding as to fact with respect to the applicant's credibility were open to it on the material before it and the circumstances are not such as to come within the notion of Wednesbury unreasonableness (and see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611).

17. The Tribunal reached the view it did in relation to the applicant's credibility because of inconsistencies in his written and oral statements which had been put to him in some detail in s.424A letters and were dealt with in the Tribunal reasons for decision. The Tribunal clearly raised with the applicant that it had trouble with these inconsistencies and, as indicated, no lack of procedural fairness or other jurisdictional error is established.

18. When given an opportunity in the hearing to elaborate on his claim of a lack of procedural fairness the applicant took issue with the fact that his oral submission at the hearing was not accepted.  He also told the Court from the bar table that he had told the Tribunal that he had a certificate of release from the labour camp but that the Tribunal member said that it was not needed.  He claimed that he tried to submit photographs to the Tribunal, but the Tribunal said that it did not need that type of document.  He tendered a copy of photographs said to relate to his participation in Falun Gong activities in Australia and also a document in Chinese and an English translation of what is said to be a certificate of release from re-education through labour camp dated February 19, 2005 which was the document he claimed he had wanted to provide to the Tribunal (albeit it had not been received by him in Australia at the time of the Tribunal hearing). 

19. The applicant had not filed a transcript of the Tribunal hearing (although an order had been made at a directions hearing of 30 August 2007 for him to do so by 12 October 2007). However, as his submission raised an issue about whether or not the applicant had sought an adjournment of the Tribunal hearing or an opportunity to provide further information and whether that had been considered by the Tribunal, the applicant was given time after the hearing to file a transcript of the Tribunal hearing. It was explained to him that if he did not do so, then the Court would make a decision on the material before it.

20. Orders were made for the applicant to file and serve any transcript of the Tribunal hearing on or before 15 February 2008 and the matter was listed for directions before me on 26 February 2008.  By the time of the further directions hearing the applicant had not filed a transcript.  Because there was an issue arising from his change of address and failure to receive a copy of the hearing tapes, he was given further time to file a transcript together with written submissions addressing any issue raised by the transcript.  However, the applicant did not file a transcript of the Tribunal hearing or written submissions.  I consider that he has been given a reasonable opportunity to do so and there is no warrant for a further delay.  Hence there is no evidentiary basis on the material before the Court in relation to the claim the applicant made from the bar table in relation to what occurred in the Tribunal hearing.

21. I note that, contrary to the applicant’s claims to the Court about his participation in Falun Gong activities in Australia, in its reasons for decision the Tribunal recorded that when asked if he had ever exercised with anyone in Australia or been to a study centre or other Falun Gong organisation the applicant stated that he “was not able to find any Falun Gong organisation” and that he confirmed that “he had not done anything in relation to his Falun Gong beliefs in Australia”. 

22. There is also no reference to any documentation of the applicant’s release from detention in the applicant’s response to the s.424A letters or in the Tribunal account of what occurred at the hearing.

23. In oral submissions the applicant also attempted to address some of the inconsistencies in his oral and written evidence to the Tribunal, providing further explanations for such inconsistencies.  However such claims do not establish jurisdictional error in the manner in which the Tribunal had dealt with such inconsistencies in making its findings in relation to the applicant's credibility.  No jurisdictional error is established on the material before the Court. 

24. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 May 2008