SZLRE v Minister for Immigration
[2008] FMCA 878
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 878 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLRE”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425 |
| Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 McDonald v Director General of Social Security (1984) 1 FCR 354 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZBYR v Minister for Immigration & Citizenship & Anor [2007] HCA 26 VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 |
| Applicant: | SZLRE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3608 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms B Griffin of Australian Government Solicitor |
ORDERS
The application filed on 21 November 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3608 of 2007
| SZLRE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The female applicant was born in 1967 at Chongqing in the People’s Republic of China and is a Chinese citizen. She attended university between 1985 and 1987. From 1988 to February 2007, the applicant was a proprietor of a small business. She is single and her parents live in China.
In the statement attached to the Protection (Class XA) visa application, the applicant made the following claims:
·She experienced “a terrible ordeal” in China as a Falun Gong practitioner;
·She was arrested by local police at a Shanghai government building in December 2001 when facilitating Falun Gong information;
·In September 2004, she was beaten by three policemen in her family home.
The applicant arrived in Australia on 23 March 2007 and applied for a protection visa on 18 April 2007. A delegate of the Minister for Immigration refused to grant the visa on 23 June 2007 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 23 July 2007 for review of the delegate’s decision. The Tribunal affirmed the decision not to grant the visa (reference 071589966) and it is this decision which is the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date, the applicant indicated that she wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court file indicates that although she did not attend the conference with the advisor, written advice was forwarded by mail.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 26 February 2008. This was not complied with. The applicant was also required to file written submissions together with any authorities she wished to rely upon 14 days prior to the hearing. This was also not complied with.
Tribunal decision
A convenient summary of the Tribunal’s “Findings and Reasons” are contained in the first respondent’s written submissions and I adopt paragraphs [7] and [8] of those submissions for the purposes of this judgment:
7. In concluding that the applicant did not have a well-founded fear of persecution the Tribunal found that the applicant’s critical claims lacked credibility, and it did not accept any of her claims for the following reasons: (CB 77-80)
7.1 The applicant could not give details about how she first became involved in Falun Gong and gave inconsistent evidence about it. The Tribunal thought that the applicant would have been able to remember such a significant event.
7.2 The applicant stated that she attended regular Falun Gong meetings and participated in a protest, but did not participate in the exercises or learn about the philosophies. The Tribunal thought that the applicant would not have taken the risk of attending meetings knowing that Falun Gong was banned, and the consequences of being involved, after she had just been released from three months’ detention, if she had no interest in the practice of philosophy of Falun Gong, or risked participating in a public protest after being placed on a black list and detained unless she had a strong commitment to Falun Gong, which she did not.
7.3 The Tribunal found it highly unlikely that the applicant would have been hit on her head with a spoon for three hours.
7.4 If the applicant had been attending meetings regularly for three years and watching people do exercises, she should have known something about them.
7.5 If the applicant was on a black list it was highly unlikely that the Chinese embassy in Australia would have renewed her passport.
7.6 Her evidence that she has not practiced Falun Gong in Australia was indicative of her lack of interest in or commitment to Falun Gong.
8. The Tribunal found that the applicant was never a Falun Gong practitioner and had not been and will not be perceived to be a Falun Gong practitioner by the Chinese authorities.
Consideration
Ground one
The Refugee Review Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to the matter.
When the applicant was invited to make oral submissions in respect of the claim, she indicated to the Court that she was a genuine Falun Gong practitioner because of its effectiveness in improving health and its profound principles. Other than this broad statement, the applicant did not make any further submissions.
In the absence of any particulars, written or oral submissions in respect of ground one, it appears that the applicant is alleging a breach of s.424A of the Migration Act 1958 (Cth) (“the Act”). There has been no attempt to particularise the information the applicant alleges should have been provided, nor any clarification on this issue. The material in this matter is limited. Attached to the applicant’s original protection visa application is a one and a half page typed claim which has very limited content. The delegate’s decision includes the following comment:
The applicant’s claims uncorroborated and much of the information she has provided is broad and lacking in relevant detail. She claims that she is a Falun Gong member, but did not provide any details such as why she became a Falun Gong practitioner, what she practiced as a practitioner, when she practiced, where she practiced, etc. She further claimed that she “went to Shanghai government building to distribute Daffa truths – clarifying information” but did not provide any details of this incident. She further claimed that in September 2004, she was beaten by a policeman, here again she failed to elaborate. She has provided no information if she was associated with any Falun Gong group in China or in Australia. (CB 40)
The balance of the information was provided to the Tribunal at a hearing on 24 September 2007.
If the applicant is referring to the independent country information about exit laws which operate in China, this does not enliven the operation of s.424A of the Act because of the exception in s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [31]. Alternatively, if the applicant is claiming that the evidence given by her at the Tribunal hearing enlivens the operation of s.424A, this is also excluded by the exception in s.424A(3)(b). If the applicant is suggesting that she should have been informed of the Tribunal’s thought processes and that inadequacies in her evidence should have been identified, these does not constitute “information” within the meaning of s.424A: SZBYR v Minister for Immigration & Citizenship & Anor [2007] HCA 26 at [18].
In the circumstances it is not apparent as to what the applicant says she should have been provided with. It would appear that there has been a misunderstanding on her part or on the part of the unidentified third party assisting in the preparation of this application. I note that the applicant is associated with the mail boxes located at 226 Elizabeth St, Surry Hills, which is an address commonly used by protection visa applicants from China and appearing before this Court. There is a certain similarity between all the protection visa applications and subsequent grounds of review associated with this address. Furthermore, the applicant resides in Auburn which is not within easy access to the Surry Hills address.
Ground two
It is not reasonable for the Tribunal to conclude that I have not and will not be perceived involvement in Falun Gong.
Again this ground is not particularised nor has there been any attempt to clarify the claim. The first respondent’s written submissions contend that the Tribunal finding that the applicant had not been and would not be perceived to be involved in Falun Gong was a reasonable conclusion to draw. The Tribunal had already found that it did not accept that the applicant had attended Falun Gong meetings, participated in a protest or been subject to adverse attention from police, including being detained, placed on a black list and physically attacked.
The Tribunal’s findings are effectively summarised in the following passage which states:
The Tribunal is of the view that the applicant was prepared to fabricate her evidence about her involvement in Falun Gong and her adverse dealing with Chinese authorities to give herself a profile of a refugee. The Tribunal finds that the applicant was not and never was a Falun Gong practitioner. The Tribunal also finds that the applicant has not and will not be perceived to be a Falun Gong practitioner by Chinese authorities. The applicant claims that she is concerned that if she returns to China she will be persecuted by Chinese authorities. The Tribunal does not accept that Chinese authorities would persecute the applicant upon her return to China in the foreseeable future because of her involvement or her perceived involvement in Falun Gong. (CB 80)
Earlier the Tribunal stated in its “Findings and Reasons”:
In dealing with this application the Tribunal has formed the view that the applicant’s critical claims lack credibility and cannot be accepted. This view has been formed based on the following evidence given by the applicant during the course of a hearing. (CB 77)
The Tribunal then proceeded to list twelve different aspects of the applicant’s evidence upon which it based this finding (CB 77-79). The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J. I am satisfied that the Tribunal’s finding in this respect was open to it on rational grounds and on the material before. It discloses no error in its treatment of the applicant’s credibility. In the circumstances, ground two should be dismissed.
Ground three
The second respondent failed to ask proper questions in relation to my application for a protection visa.
This ground is also not particularised and it is difficult to infer that the ground raises any aspect of jurisdictional error. The migration legislation does not describe any specific questions for the Tribunal to ask an applicant. The proceedings of the Tribunal are inquisitorial in nature which accords flexibility and it is for the Tribunal member to decide how to conduct proceedings. In McDonald v Director General of Social Security (1984) 1 FCR 354 at 356, Woodward J noted:
A Tribunal will still have to determine practical problems such a sequence of receiving evidence and what to do with it if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in consideration of natural justice or common sense, than in technical rules relating to onus of proof developed by the courts. However, there may be assistance in some cases where the legislation is silent.
The ground as pleaded does not identify what the Tribunal is alleged to have failed to ask. However, it is clear from the Tribunal’s description of the hearing that its questions afforded the applicant the opportunity to expand on the brief claims in her protection visa application. The applicant was invited to give evidence and presents arguments relating to the issues in relation to the decision under review and in accordance with s.425 of the Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. A fair reading of the Tribunal decision, which is the only evidence of the conduct of the Tribunal hearing, does not indicate that the member did anything other than ask logical questions arising from the limited and narrow claims in the visa application. I am satisfied that no jurisdictional error can be identified in ground three and that the ground should be dismissed.
Conclusion
The applicant in these proceedings is a self-represented litigant assisted by a Mandarin interpreter. The applicant relied entirely upon her original application. Despite being given the opportunity to obtain panel advice, no amended application or oral submissions have been submitted. The Tribunal based its findings on the applicant’s credibility after complying with the provisions of the Act to adequately bring these issues to her attention. The first respondent assisted with written submissions addressing all the issues raised in the applicant’s original pleaded ground.
I have independently reviewed the contents of the Court Book and the Tribunal decision and it is not apparent from the face of those documents that there is any jurisdictional error in the reasoning of the Tribunal. As indicated above, the Court Book is the only evidence before me. In the absence of particularised grounds or written or oral submissions, I have formed the view that the application should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 27 June 2008
0
6
0