SZLUG v Minister for Immigration
[2008] FMCA 461
•10 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 461 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China by reason of Falun Gong practice – applicants not believed – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425 |
| SBCC v Minister for Immigration [2006] FCAFC 129 SZLTC v Minister for Immigration & Anor [2008] FMCA 384 |
| First Applicant: | SZLUG |
| Second Applicant: | SZLUH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3912 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 10 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2008 |
REPRESENTATION
The First Applicant appeared in person
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3912 of 2007
| SZLUG |
First Applicant
SZLUH
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 29 November 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, the husband and his wife. The relevant claims were made by the first applicant, the applicant husband. In this judgment, references to “the applicant” are to him.
Background facts relating to the applicants' claims and the Tribunal decision on them are set out in the Minister's legal submissions filed on 1 April 2008. I note for the record that the copy of those submissions filed was incomplete and that a complete copy was filed in my chambers on 9 April 2008. I adopt as background for the purposes of this judgment paragraphs 2 through to 13 of those written submissions:
The applicants, citizens of China, arrived in Australia on 6 May 2007.
The applicants applied to the Department for a Protection (Class XA) visa on 29 May 2007.
The delegate refused the application on 23 June 2007 and the applicants appealed to the Tribunal on 23 July 2007.
Original claims
The male applicant claimed that he started practising Falun Gong in 1998. He and his wife ran a business and were forced to pay heavy tax because of his Falun Gong practice. The applicant copied and distributed petitions until he was arrested in October 2004 and jailed for 6 months and mistreated.
Delegate’s decision
The delegate reasoned that as the applicants had continued to reside at the same address and had departed China without hindrance on a passport in their own name they were of no significant adverse interest to the Chinese authorities. The delegate noted that the applicant did not claim to have continued his Falun Gong practice in Australia, which the delegate did not regard as the behaviour of a dedicated Falun Gong practitioner (court book (CB) 47).
The Tribunal
The Tribunal held a hearing on 20 September 2007 at which both applicants gave evidence and presented arguments.
The Tribunal sought further details about the applicants’ claims. The male applicant’s evidence was in summary:
· he practised Falun Gong in a park with 10 friends from 1998;
· he received a warning about practising Falun Gong in 2000 when the police came to see him in his store;
· he continued practising in public until 2003;
· the police came to their store often and the taxes imposed upon them were very high so they had to close the store in June 2003;
· he continued practising Falun Gong with about six others in remote rural areas after this;
· he printed about 15,000 leaflets at about this time;
· the police harassment continued after the store was closed;
· the applicant initially said he was detained by police in October 2004 for distributing the leaflets, but he corrected this to say that it was because a neighbour informed the police that he was practising Falun Gong in private;
· he was released from detention in 2005 and the police would conduct checks of his house every 20 days;
· he moved to the outskirts of the City at the end of 2005;
· the applicants provided the Tribunal with a document in Chinese. The interpreter read it to the Tribunal. It was an arrest warrant that did not specify the reason for the arrest.
At the end of the hearing the Tribunal put to the applicant that as Falun Gong had been banned in 1999 it was unlikely that he was able to practise in public until 2003. Further, independent material suggested that practitioners would most likely be arrested for practising, rather than receiving warnings or higher taxes. To the Tribunal this made the applicant’s claims appear implausible and untruthful.
The Tribunal then questioned the male applicant about his Falun Gong practice in Australia. The applicant claimed to have practised once in the City and more regularly with a group in Auburn. He said he would normally attend on a Friday and Sunday morning at 5am. He gave the name of the group’s contact person. He attended the World Falun Dafa day in March 2007. At the end of the hearing the Tribunal put to the applicant information that the Auburn group in fact met on Saturday’s and every weekday from 7am to 9am. It put to the applicant that this may lead the Tribunal to conclude that he had not practised in Sydney and that he was not being truthful. In a written response after the hearing the applicant asserted that he in fact practised by himself as he did not have time to practise with the Auburn Group.
The Tribunal then questioned the male applicant about his knowledge of Falun Gong practice and principles. The applicant could not name the two books of Falun Gong, or give the date of publication of one of them, he did not know what colour the Falun was, where it was located, and how one sees that it is rotating or spinning. The applicant did not know that a person needed strength when performing the third exercise, and that the third and fourth exercise were to be repeated nine times. The applicant could not explain how he applied the three guiding principles of Falun Gong in his life. At the end of the hearing the Tribunal suggested to the applicant that it regarded these deficiencies as indicating that he had very little knowledge of Falun Gong and that this might lead it to conclude he was not a genuine Falun Gong practitioner. In a written response the applicant sought to explain his lack of knowledge as a consequence of living high in Australia and working every day.
The Tribunal asked the male applicant about his passport. He said that he obtained this in March 2007 as a renewal of an earlier passport. He said that although the police knew of his Falun Gong practice, he did not have to pay a bribe to get the passport and there were no problems leaving China. At the end of the hearing the RRT advised the applicant that independent country information indicated that it was unlikely that a passport would be issued to a known Falun Gong practitioner, especially one who had been imprisoned. This may lead the Tribunal to find that his evidence was implausible and untruthful. In his written response the applicant claimed that he in fact bribed officials to obtain the passport.
The Tribunal was not satisfied that the male applicant was ever a Falun Gong practitioner either in China or Australia. It was not satisfied that his knowledge of Falun Gong was at a level to be expected from a person practicing since 1998. The Tribunal also had doubts about the truthfulness of the applicant’s evidence because of inconsistencies in it. It found that his oral evidence about his practice in the Auburn group was inconsistent with information on the Falun Gong website. It also found that the applicant’s written response about this issue was inconsistent with his oral evidence. For this reason the Tribunal was not satisfied that the applicant ever practised in Australia. The Tribunal also found that inconsistencies in the applicant’s evidence about his practice in China firmed the Tribunal’s doubts about the applicant’s credibility. The Tribunal found the applicant’s evidence concerning his practice in China to be improvised and inconsistent. After referring to the inconsistency between his oral and written claims about how his passport was issued the Tribunal concluded that the passport was issued because he was not considered to be a Falun Gong practitioner in China. The Tribunal referred to the arrest warrant and concluded that even if it accepted it was genuine, the doubts as to the applicant’s credit meant it was not satisfied that it was issued as a result of the applicant’s practice of Falun Gong. The Tribunal concluded that the applicant had manufactured his claims. The Tribunal was also of the view that the female applicant’s evidence was vague, evasive and incoherent at times. It did not consider her to be a truthful witness either.
The applicants rely upon their show cause application filed on 20 December 2007. That is supported by an affidavit filed on the same day. I also have before me the court book filed on 4 February 2008 and the Minister's written submissions.
In directions made on 1 February 2008 I gave the applicants the opportunity to amend their application and to file additional affidavit evidence, but they have not taken up that opportunity. Only the first applicant attended today's hearing. He told me that his wife was unwell. It proved almost impossible to elicit from the first applicant any oral submissions. When I queried why he would not respond to my questions he said that he did not know what to say. He said he was nervous. He also said that he was nervous at the Tribunal hearing. I note that the Tribunal gave the applicants the opportunity to respond in writing to concerns expressed by the Tribunal at the Tribunal hearing about the applicants' claims. The first applicant took up that opportunity at CB 76. In that response he referred to a lack of sleep and nervousness.
There appears to have been a fairly extensive discussion between the presiding member and the first applicant at the Tribunal hearing. I refer to the Tribunal's record of what occurred at the hearing appearing at CB 85 to 92. Given that apparently extensive discussion, the first applicant's virtual complete silence today is odd. I have received no notice that the applicant has any medical condition, and apart from extreme unresponsiveness, he does not appear to be unwell.
There are two grounds in the application. The first is an allegation that the Tribunal erred by failing to put to the applicant the issue of authenticity of documentary evidence that the applicant submitted to the Tribunal in the course of its review. The Tribunal in its reasons dealt with a purported arrest warrant which the first applicant presented to the Tribunal and which is reproduced at CB 73. There is no English translation of that document but at CB 88 the Tribunal records that the document was read at the hearing by the interpreter. The Tribunal records that the arrest warrant did not state the reason for the purported arrest. This was confirmed at the hearing today by the Mandarin interpreter who was assisting the applicant. In its reasons at CB 100 the Tribunal said:
The Tribunal refers to the documentary evidence provided by the applicant that he was arrested in 2004. The interpreter read this document to the Tribunal in English. While it properly identified the applicant, it did not say what the basis for his arrest was. Even if the Tribunal accepts that it is a genuine Chinese arrest document, given its doubts as to the credibility of the applicant, it does not accept his or his wife's evidence that it was issued because the applicant was a Falun Gong practitioner.
I am satisfied that the Tribunal's description of the document is accurate. In my view, no obligation of disclosure arose. There was no obligation of disclosure under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) both because the information in the document was provided by the applicant to the Tribunal for the purposes of the review and because the Tribunal's rejection of the applicant's credibility was not “information” for the purposes of that section[1]. The term "information" carries the same meaning in s.424AA as it does in s.424A[2]. It follows that, although the Tribunal embarked upon a course of disclosure pursuant to s.424AA (see CB 91 and 92), and although that disclosure did not extend to the Tribunal's concerns about the arrest warrant, there was no obligation to disclose the Tribunal's doubts about the applicant's credibility as a reason for not relying upon the arrest warrant.
[1] SZBYR v Minister for Immigration [2007] HCA 26 at [17]
[2] SZLTC v Minister for Immigration & Anor [2008] FMCA 384
Neither was there any obligation of disclosure for the purposes of s.425 of the Migration Act. The Tribunal did not rely upon the arrest warrant in order to affirm the decision under review. The Tribunal was willing to accept the possibility that the arrest warrant might be genuine. However, the Tribunal was not prepared to infer that the arrest warrant had anything to do with the applicant's asserted Falun Gong practice because for other reasons it rejected the applicant's credibility. The applicant was clearly put on notice at the Tribunal hearing about the Tribunal's credibility concerns in relation to his claims of being a Falun Gong practitioner.
I reject the first ground of review.
The second ground in the application is the assertion that it was not reasonable for the Tribunal to conclude that the first applicant was not a Falun Gong practitioner just because he did not know the names of the books of Falun Gong. The assertion is inaccurate because the applicant's lack of knowledge of the names of the two Falun Gong books was simply one element in the range of factors that led to the Tribunal's adverse credibility conclusion (see CB 98 to 100).
I am in no doubt that the Tribunal's adverse credibility finding was open to it on the material before it. The Tribunal plainly engaged in an active intellectual process in dealing with and rejecting the applicant's claims. As noted in the Minister's written submissions at paragrphs18 to 20, the Tribunal was entitled to test the applicant's knowledge of Falun Gong for the purpose of drawing a credibility conclusion (see SBCC v Minister for Immigration [2006] FCAFC 129 at [45]).
I reject the second ground of review.
The Minister's submissions also raise the question of whether there was any breach of s.91R(3) of the Migration Act. The Minister raised that issue as a model litigant, but, in my view, no issue arises. The Tribunal did not exclude from consideration any conduct of the applicant for the purposes of the review. The Tribunal was simply not satisfied that the applicant was a Falun Gong practitioner as he claimed.
Having considered the applicant's claims and the information available in the court book, I am satisfied that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs in the sum of $5,000. The applicant failed to respond to my invitation to make a submission in relation to costs. I will order that the applicants pay the first respondent's costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 April 2008
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