SZLGT v Minister for Immigration

[2008] FMCA 428

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGT v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 428

MIGRATION – Review of RRT decision – where applicant claimed to be a Falun Gong practitioner – where Tribunal made finding that applicant not a credible witness – where Tribunal did not accept evidence of two witnesses because of credibility finding – whether corroborative evidence duly considered.

Migration Act 1958 (Cth), s.424A

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
WAGU v Minister for Immigration [2003] FCA 912
WAIJ v Minister for Immigration [2004] FCAFC 74

Applicant: SZLGT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2742 of 2007

Judgment of: Raphael FM

Hearing date: 6 March 2008

Date of Last Submission: 6 March 2008

Delivered at: Sydney

Delivered on: 28 March 2008

REPRESENTATION

Applicant in person

Counsel for the Respondents: Ms V McWilliam

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2742 of 2007

SZLGT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 16 January 1999. He applied to the Department of Immigration & Multicultural Affairs for a protection (Class AZ) visa on 15 February 1999. On 23 February 1999 a delegate of the Minister refused to grant a visa and the applied for review of that decision on 9 June 2005. On 23 August 2005 the Tribunal found that it did not have jurisdiction to review the delegate’s decision. On 9 September 2005 the applicant sought judicial review of the Tribunal’s decision. On 5 April 2006 the Department renotified the applicant of the decision of 15 February 1999 as the notification dated 23 February 1999 was invalid. On 6 July 2006 the judicial review was dismissed by consent. On 29 August 2006 the Tribunal differently constituted handed down its decision affirming the decision of the delegate. The applicant sought judicial review of the Tribunal’s decision by the Federal Magistrates Court and on 15 March 2007 that court set aside the decision and remitted the matter to the Tribunal to be determined according to law. A further Tribunal differently constituted invited the applicant to appear before it on 19 June 2007. The applicant did appear and brought with him two witnesses. They gave evidence. On 12 July 2007 the Tribunal wrote to the applicant care of his adviser a letter pursuant to s.424 of the Migration Act 1958 (the “Act”).  On 25 July 2007 the applicant responded to that letter.  On 16 August 2007 the Tribunal handed down its decision made on 6 August 2007 to affirm the decision not to grant the applicant a protection visa. 

2. The Convention ground upon which the applicant claimed the protection of Australia was that of religion/membership of a particular social group, the applicant being an adherent of Falun Gong.  The applicant provided a statement to the Tribunal annexed to his application of 3 May 2006 [CB 75–79] which was substantially reproduced in the Tribunal’s decision [CB 187–188].  The applicant told how, following a serious motor bike accident in December 1995, he had seen people exercising in a park near his home.  One of them was his neighbour.  He made enquiries about their exercises and was told that they were practising Falun Gong.  He was told that if he practiced the five exercises he may find some improvement in his physical condition.  The applicant commenced to exercise and read books on the Falun Gong philosophy and practised daily in the park.  He experienced some considerable improvement in his knee.  The applicant continued with his Falun Gong practice until he came to Australia on a business visa in January 1999.  He remained in the country and sought an extension of his business visa.  He told the migration agent who he retained that he was a Falun Gong practitioner.  After the Chinese Government banned Falun Gong in July 1999 the applicant’s wife told him that all of his friends who had practiced Falun Gong with him had been sent to education classes and that the police were visiting his wife and making her frightened.  In his original application for a protection visa [CB 24–26] the application made no mention of Falun Gong but claimed that he was an anti-government activist, arising from the treating of his father in 1966 to 1976.

3. The applicant made no claim to have practiced Falun Gong publicly until 2006 when he decided that he should join with other Falun Gong practitioners to fight for freedom for Falun Gong followers.  His first participation in a public group was on 5 January 2006 opposite the Chinese Consulate:

   “I went to join the study group for learning Zhuan Falun.  At the same time I also joined the team to spread pamphlets in China Town, I have also participated the demonstration show in Martin Place to disclose how the Chinese government persecuted Falungong practitioners in China.  I have also attended the strike in the city to support 10 million Chinese Communist Members to withdraw their membership from the CCP.

   I am a sincere Falungong practitioner.  I am not going to stop the practice or participating our activities in Australia.  I will use all of my effort to fight for the freedom of our organization and those who are still in the prisons in China.  I understand that I will definitely face persecution should I return to China, as I have publicly known as active Falungong activist.”

4. In its decision document the Tribunal deals with the evidence given by the applicant at the hearing before the Tribunal on 25 July 2006 (the second Tribunal).  That Tribunal noted that the applicant had made no mention of his Falun Gong activities in his RRT application in 2005 to which the applicant had responded that he had not done so because at that stage he had not stood out publicly.  The Tribunal’s record of the hearing on 19 June 2007 commences at [CB 191].  At [CB 194] the Tribunal described certain claims the applicant made to it that he had been arrested by police and detained in the suburbs.  He claimed that he had been detained for almost four months.  The applicant agreed that this was the first time that he had raised this matter.  He had never previously raised the fact that he had been arrested and detained for four months or that he had been beaten.  He thought it was to do with his pro-democracy activities, and the detention had occurred in 1989 after which time he had remained in his job until 1993 and then moved to obtain a more senior position.  The Tribunal’s report of its questioning of the applicant on these matters continues until [CB 196] with the Tribunal expressing concern at the fact that the applicant had not previously raised these matters and that he had previously said that he had not been arrested and that he had no difficulty in obtaining his passport of leaving China without difficulty.

5. At [CB 196] the Tribunal sets out its discussions with the applicant concerning Falun Gong.  At [CB 197] it reports the evidence given by one of his witnesses:

   “JT stated that she met the applicant in Australia at the end of 1999.  From June 2004 the applicant shared a house with her and members of her family.  She stated that he is a Falun Gong practitioner.  She has seen him read the book, Zhuan Falun.  He reads it every day and normally does that with the door closed.  The witness was asked whether the applicant does the exercises in public and she stated that he goes to Campsie on Wednesday nights and celebrates Falun Dafa day, the birthday of the founder.  She went with the applicant to admire the parade.  The witness was asked whether the applicant has the door shut when he does his exercises at home.  She stated that sometimes when her seven year old son opens the door he finds that the applicant is practising there.  She also sees the applicant watch videos with the wheel on the front or back.”

6. The Tribunal then reports on its questioning of the applicant concerning his Falun Gong activities and why the applicant had not practised Falun Gong in Australia when he first arrived and prior to the time that it had been banned in China.  The applicant responded that he was not familiar with Sydney at the time.  The Tribunal took up with the applicant the long delay between arriving in Australia and publicly admitting to his practice of Falun Gong and joining the protest movement.  The applicant stated that he was concerned about spies in the Chinese community.  He was frightened that if he returned to China he would be used for organ donation.

7. The applicant’s second witness Mr HFC gave evidence:

   “He stated that the applicant and he lived in a room next to each other and he saw the applicant practice and learn Falun Gong until June 2004.  He got to know the applicant in 2000.  Mr C stated that he himself is a Falun Gong practitioner.”

8. The Tribunal’s decision then sets out the s.424A letter which points out a number of inconsistencies in the applicant’s statement and his evidence given at hearing. The s.424A letter does not make any reference of the evidence given by the applicant’s witnesses.

9. In its findings and reasons the Tribunal expresses its concerns about the applicant’s credibility, particularly arising out of his failure to make any mention of the alleged arrest and detention prior to the Tribunal hearing, and his statement that he was allowed to continue working in his original job after he had been arrested and released and then was able to obtain even better employment that allowed him to come to Australia.  The Tribunal expresses concern about the applicant’s ability to obtain travel documents with ease and concluded that it could not accept his evidence in this regard.  It would be fair to say that the Tribunal comprehensively dismissed the applicant’s claims to have a well founded fear of persecution arising out of his general opposition to the Communist Government in China.  At [CB 205] the Tribunal commences to deal with the Falun Gong claims:

   “The Tribunal does not accept as true that the applicant was a genuine Falun Gong practitioner in China or is a genuine Falun Gong practitioner in Australia. The Tribunal does not accept his claims that he cannot and/or will not return to China because he fears persecution there, now or in the reasonably foreseeable future, due to Falun Gong activities and practice.  The Tribunal does not accept that the applicant fears persecution in China because of Falun Gong practice or activities.  The Tribunal does not accept as true that he has been a Falun Gong practitioner since December 1995/January 1996 as he claims.

   The reason that the Tribunal finds against the applicant in relation to these matters is that the Tribunal does not accept that he is a witness of truth.  The Tribunal finds that the applicant lacks credibility based on the large number of inconsistencies in his evidence and his preparedness to change his evidence in an attempt to further his refugee claims.  The Tribunal does not accept the applicant as credible and consequentially rejects all of his material claims.”

10. The Tribunal also found that the applicant did not practice Falun Gong in China, noting that he had made no claim to have done so until 3 May 2006, more than seven years after he arrived in Australia, even though he had told the Tribunal that Falun Gong was not being officially banned was under pressure from the authorities from at least December 1998.  At [CB 206]:

    “The Tribunal does not accept that the applicant practiced Falun Gong from the time he arrived in Australia on 16 January 1999 until he joined the Falun Gong group at Campsie in February 2006.  …The Tribunal has taken evidence from the applicant and finds on the basis of inconsistencies in his evidence, the delay in claiming to be a Falun Gong practitioner, false evidence provided by him and the implausibility of his claims, that he is not a genuine Falun Gong practitioner.  …Although the two witnesses attended the hearing to give evidence about the applicant’s involvement in Falun Gong,  the Tribunal has already found that the applicant is not a genuine Falun Gong practitioner and is not persuaded by their evidence that he was a genuine Falun Gong practitioner.  …

    Having regard to the applicant’s overall credibility, the Tribunal does not accept that he was a Falun Gong practitioner in China or that he is a genuine Falun Gong practitioner in Australia.  …  The Tribunal does not accept that the applicant was involved in any Falun Gong activities, including its practice, between 1999 and February 2006.”

11. The amended application which was filed in court on 6 March 2008 is a discursive document that for the most part seeks to rehearse the arguments put to the Tribunal and to rebut the Tribunal’s findings.  However, in paragraph 1 of the amended application the applicant makes reference to the findings of the Tribunal extracted above and set out in bold that:

    “The Tribunal has already found that the applicant is not a genuine Falun Gong practitioner.”

    The applicant criticises this statement as being indicative of the Tribunal having a closed mind.  I would not accept this because the finding about the applicant not being genuine is arrived at after a detailed recitation of the facts and discussions with the applicant.  The statement did, however, concern me as did the one extracted slightly later in which the Tribunal is saying not just that the applicant was not a genuine Falun Gong practitioner, but that he had not practiced Falun Gong at all in this country until 2006.  This statement flies in the face of the applicant’s own evidence but more particularly in the face of the evidence of his two witnesses whose evidence the Tribunal has decided not to accept because of a previous finding about the applicant’s credibility.

    The leading case concerning a Tribunal’s refusal to give weight to corroborative evidence on the basis of a finding on the applicant’s credibility is Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. In that case the Tribunal made the following finding (set out at [11] of the judgment of Gleeson CJ):

    “In light of the Tribunal’s findings above that the [applicant/appellant] thoroughly lacks credibility, and its findings that the [applicant/appellant] had misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the  … witness, and gives no weight to this evidence.”

    McHugh and Gummow JJ stated at [49]:

    “In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.  It cannot be irrational for a decision maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.  The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.” [emphasis added]

    Gleeson CJ at [14] said:

    “Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others.  Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.  I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.” [emphasis added]

    See also WAGU v Minister for Immigration [2003] FCA 912, where at [36] French J referred to S20/2002 and stated:

    “Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.  In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.”

    In WAIJ v Minister for Immigration [2004] FCAFC 74 the Full Court dealt with a Tribunal decision which did not consider the corroborative evidence supplied by the appellant on the basis that it did not “overcome the problems [the Tribunal had] with the applicant’s evidence” (at [12]) and that it would have been a straightforward matter for the appellant to have fabricated the evidence.

    At [27] Lee and Moore JJ said:

    “Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).” [emphasis added]

    Their Honours found that WAIJ was not a case where the credibility of the appellant had been destroyed by stark findings of untruthfulness [28]. As a result, at [32] their Honours said:

    “ … in the absence of material which impeached the appellant’s claims directly, the Tribunal could not make that determination without duly considering the weight to be given to material which tended to confirm the truth of her claims. In other words, if there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims, it may be unsafe to regard the failure of the appellant to disclose the claims at the "entry" interview as sufficient to establish that the claims were invented and it would follow that material corroborating the claims would have to be considered.

    The present case, however, can be distinguished from WAIJ.  The Tribunal in this instance made a clear finding that the applicant’s credibility had been weakened because of the inconsistencies in his evidence and rejected all of his claims as a result of this conclusion and made a finding that any observance of Falun Gong practices was not genuine.  The finding made in respect of his practice in the period prior to his “going public” may well be one another Tribunal would not have made, being content to rest upon the lack of genuine adherence to the sect.  But the Tribunal did consider the witnesses’ evidence and its most important finding related to the lack of genuineness.  That was the dispositive finding in this case.  The finding that he did not practice at all pre-2006 could be considered an irrelevant overstatement that would not constitute jurisdictional error.  That is how I would regard it. 

1. In these circumstances there are no grounds upon which I can grant the applicant the review he seeks.  I dismiss the application.  I order the applicant to pay the Respondent’s costs assessed in the sum of $4,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  28 March 2008