SZMAC v Minister for Immigration - [2008] FMCA 1123

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMAC v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1123

MIGRATION – Review of decision of RRT – where applicant failed to respond to detailed letters from Tribunal.

Migration Act 1958, s.424A

Applicant:

SZMAC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 499 of 2008

Judgment of:

Raphael FM

Hearing date:

31 July 2008

Date of Last Submission:

31 July 2008

Delivered at:

Sydney

Delivered on:

31 July 2008

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 499 of 2008

SZMAC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 10 June 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 22 June 2007. On 23 July 2003 the delegate of the Minister declined to grant a protection visa and on 28 August 2007 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal invited the applicant to attend a hearing on 24 October 2007, later postponed until 13 November 2007. The applicant did attend and provided information to the Tribunal. Following the hearing the Tribunal wrote to the applicant on 20 November 2007 explaining that a number of issues were raised with him before the end of the hearing and the relevance of those issues were explained as were the consequences of those issues to his claims:
“In the interests of being fair and just, the Tribunal provides the following summary of relevant evidence from the hearing as a reminder, to aid you in preparing any written comment or response.”
The Tribunal then set out under six dot points matters of concern which it had already raised with the applicant and asked him to respond to the Tribunal by 13 December 2007. The letter continued with an invitation to comment pursuant to s.424A of the Migration Act 1958 (the “Act”) in respect of which two dot points were set out [CB 66 - 69]. Finally, the letter provided the applicant with an invitation to comment on or respond to information in writing generally and in respect of this four matters were raised.
On the same day another letter was written to the applicant requesting information pursuant to s.424 of the Act. The information requested related to the applicant's passport which the applicant had indicated was not his own. The Tribunal asked to inspect the passport and gave him until 13 December 2007 to provide it to the Tribunal. On 8 January 2008 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 29 January 2008.
The applicant's ground for claiming to be a person to whom Australia owed protection obligations was his association with and adherence to the Falun Gong movement. The applicant claimed in a statement annexed to his application for a visa [CB 27 - 28] that he had started practising Falun Gong at the end of 1998 and that he had gone to Beijing to appeal for Falun Gong several times and had gone to the Harbin Local Government building to appeal. He said that in January 2003 he had been arrested by Harbin officials without any valid reason and was sentenced to three months of hard labour. In prison he had been subjected to bad treatment from other prisoners and was tortured. He left prison in April 2003 but it was suggested to him by his friends that he should go abroad.
The Tribunal questioned the applicant about his statement and about a number of other matters. There was at some stage a possibility that the applicant had not put his correct residential address into his application but the Tribunal later determined that it was unable to say that this had occurred and accepted the address given as the applicant's residential address. The Tribunal questioned the applicant about his knowledge of the Falun Gong movement and, in particular, his practise in China:
“He said that he did not ever practise Falun Gong. He again referred to the occasion that he got a Falun Gong book and read this book and left it on his bed and then the police found it, leading to his imprisonment. The Tribunal asked when this event occurred and he said 1999. He said that, since that time he had been in hiding. The Tribunal asked the applicant how it was that the police had found the book on his bed in 1999 but he was not arrested until 2003. He first said that the Communist Party were not being that harsh on Falun Gong at that time but were more so in late 2003. He then said that the book was found in January 2003 and that in 1999 the police were just investigating.”
The Tribunal asked questions about the applicant going to demonstrations and received what it later considered to be confusing and inadequate answers.
The Tribunal questioned the applicant about his travels because his passport had indicated that he had gone to Russia and Switzerland.

The applicant stated that the passport was not his and that he had paid a bribe in order to obtain and utilise it. He gave the Tribunal what he claimed to be his real name. The Tribunal asked the applicant to let it have the passport so that it could be analysed for photo substitution but the applicant said that he needed it to go to the bank and to obtain a driver's licence. It will be recalled that the Tribunal later wrote to the applicant asking him to deposit the passport with it; but this was not done.
The letters from the Tribunal to the applicant which I have previously referred to set out in some considerable detail the areas of concern which the Tribunal had about the applicant's evidence. It indicated a number of areas in which his responses to questions about Falun Gong had suggested that he might not be a genuine practitioner because the Tribunal would have expected a genuine practitioner to know the answers to what appeared to be fairly simple questions. The Tribunal was concerned that the applicant had not taken up the practice of Falun Gong in Australia, notwithstanding that this was available, and was not impressed by his explanations.
The Tribunal pointed out the inconsistency between the applicant's original statement that he had been arrested in 2003 and a later statement that he was found with the book which caused his arrest in 1999 and the Tribunal also expressed concern about the evidence relating to his attendances at Beijing or Harbin demonstrations which appeared inconsistent.
In its findings and reasons the Tribunal dealt with the question of the passport. As the applicant had not provided the passport to the Tribunal for a further examination the Tribunal determined that it should deal with the contention of its falsity on the basis of the evidence that had been before it, namely, the Tribunal's own examination of the passport. The Tribunal concluded that the passport did not show any obvious signs of tampering and expected that the Department would have looked into this issue at an earlier time if there had been such signs. The Tribunal concluded that the passport was genuine and had not been tampered with and that the applicant's correct name, date of birth and place of birth were as stated in the passport and in his protection visa application.
Not surprisingly, given the applicant's failure to respond to the detailed letters sent by it, the Tribunal concluded that it could not be satisfied that the applicant was a genuine Falun Gong adherent or that he had a genuine interest in Falun Gong or was a genuine practitioner. It noted that it had serious doubts as to the evidence of the applicant and doubts as to his credibility:
“The Tribunal considered that much of the applicant's evidence had the air of improvisation which in the Tribunal's view explains his evasiveness and vagueness and the identified inconsistencies and implausabilities. In the Tribunal's view, the only possible explanation for the applicant's evidence is that he is being untruthful and claiming Falun Gong belief and interest merely in an attempt to characterise himself as a person to whom Australia has protection obligations, when he is not such a person.
The Tribunal does not therefore believe the applicant has ever in the past had an interest in, or practised, Falun Gong or that he will in future. The Tribunal does not accept that there was or is any interest by Chinese security authorities in the applicant arising from his claimed practice of Falun Gong or reading of any Falun Gong materials. The Tribunal does not accept that he was arrested, detained or tortured for his interest and involvement in Falun Gong.”
The Tribunal recognised that there may be a well-founded fear of persecution for most, if not all, genuine Falun Gong practitioners returning to China but it did not consider that the applicant was one of these. In those circumstances the Tribunal concluded that he was not a person to whom Australia owed protection obligations.
The applicant filed an application with this court on 29 February 2008 seeking a review of the decision of the Tribunal. There were two grounds of the application. The first was:
“The Refugee Review Tribunal has not taken or adequately taken into consideration the applicant's claim that he would face a risk of being prosecuted by Chinese Government if returned to China.”
The Tribunal's duty was to determine whether or not the claim made by the applicant was genuine. If it considered that it was genuine then it should have taken into consideration whether or not he would face a risk of being prosecuted if he returned. However, in this case the Tribunal could not conclude that the claim was genuine. In those circumstances there was no necessity to take into consideration his claim that he would face a risk of being prosecuted.
The second matter raised by the applicant was that:
“The second respondent did not comply with its obligation to put adverse information relied upon it as part of the reason for the decision.”
The manner in which the Tribunal dealt with the inconsistencies and concerns that it had in the applicant's evidence is exemplary. A series of letters were sent to the applicant making it quite clear what was required from him and what the problems with his evidence were. I am quite satisfied that all the provisions of s.424A, old and new, were complied with by the Tribunal. In these circumstances I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: