SZMBU v Minister for Immigration
[2008] FMCA 752
•3 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 752 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution for reason of belief in Falun Gong – jurisdictional error – whether Tribunal failed to consider applicant's claim to practice Falon Gong in Australia – whether Tribunal failed to invite the applicant to comment of adverse information as required by Migration Act 1958 (Cth) s. 424A(1) – credibility issues – factual finding subsumed in a finding of greater generality – allegation of bias – no evidence of bias – merits review – where applicant claimed to have suffered from a headache for several days prior to the Tribunal hearing. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 referred to SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; 81 ALJR 1190 followed SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 referred to Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 cited |
| Applicant: | SZMBU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 686 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 May 2008 |
| Date of Last Submission: | 26 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Ms McWilliams |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,500.00.
The applicant is to pay the setting down fee of $419.00 to the Registry of the Court within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 686 of 2008
| SZMBU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, who is a citizen of China, asks the court to set aside a decision of the Refugee Review Tribunal made on 12th February 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant asks the court to issue:
(1)A writ of certiorari quashing the decision; and
(2)A writ of mandamus “compelling the Tribunal to rehear and redetermine the matter according to law”.
He also seeks an order for costs, although he appears to have been unrepresented throughout the proceedings.
The applicant relies on three Grounds for review, claiming that:
(a)The RRT decision was affected by jurisdictional error when it considered his claim that he is a genuine Falun Gong practitioner and was persecuted by the Chinese Government when he was in China.
(b)The Tribunal failed to consider properly his claim that he has strong interests in Falun Gong in Australia and practices regularly.
(c)The Tribunal failed to invite him to comment on adverse information as required by s 424A of the Migration Act 1958 (Cth) and failed to invite him to comment on inconsistencies in his response to a letter sent to him under the provisions of s 424A and his oral evidence at a hearing before the Tribunal.
Background
The applicant arrived in Australia on 19th May 2007. He applied for a Protection (Class XA) visa on 27th June 2007. In a statement accompanying his application he claimed to have been a Falun Gong practitioner in China since 1995. After the Chinese government declared Falun Gong to be an illegal organisation 1999, the applicant claimed that the police approached him and other practitioners. He was obliged to sign a confession and declare that he would never practice Falun Gong again. The applicant claimed that he continued to practice Falun Gong until the police went to his home in June or July 2001.
He was then required to attend “re-education” sessions at the local police station for a week.
The applicant claimed that he was laid off from his job and was unable to obtain a licence to open a shop because he was known to be a Falun Gong practitioner. He ran an unlicensed game machine shop until he was assaulted by two customers in August 2006. The police would not act on his complaints but closed his business and confiscated his machines. As a result, he applied for a passport and visas to enter Malaysia and Australia. He left China and came to Australia, where he met up with other Falun Gong practitioners.
A delegate of the Minister for Immigration and Citizenship refused the applicant’s application for a protection visa on 24th September 2007. The delegate noted that the applicant appeared to have had no difficulty in obtaining a Chinese passport and had no documentary evidence to support his claims that he had been involved with Falun Gong since 1995. These facts were seen to “throw doubts on the applicant’s claim to have an objective fear of persecution”[1]. The delegate did not accept the applicant’s claim to have lost his means of livelihood in august 2006, noting that he had managed to satisfy the requirements for the grant of a visitor’s visa to Australia. The delegate also did not accept the applicant’s claim to have lived in Anhui until May 2007, noting that his passport showed that he visited Singapore on 28th February 2007.
[1] See delegate’s decision at Court Book page 47
Finally, the delegate did not accept the applicant’s claim that he had lived in the special zone of Shenzhen without any difficulty if he were in fact a Falun Gong practitioner. The delegate referred to independent country information about controls imposed on people living in Shenzhen and concluded:
While the introduction of some of the above measures may predate the period of time that the applicant lived in Shenzhen, the indications are that it would be impossible for any Falungong practitioner (let alone one that had attracted adverse attention) to settle in Shenzhen. Country information indicates that the Chinese authorities have stringent controls on everyone. In the circumstances, I find that in order to move to Shenzhen, the applicant changed his Hukou to the special zone of Shenzhen[2]
[2] Court Book page 48
The delegate refused the application for a visa on 24th September 2007.
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. He enlisted the services of a migration agent to help him and the agent lodged his application on 23rd October 2007.
No documentary evidence was lodged with the application for review.
The Refugee Review Tribunal acknowledged receipt of the application in a letter dated 23rd October 2007. The Tribunal wrote again to the applicant on 1st November 2007, inviting him to attend a hearing scheduled to take place on 4th December.
The applicant attended the hearing on the morning of 4th December 2007 and gave evidence with the assistance of an interpreter in the Mandarin language. He produced a copy of his passport to the Tribunal, along with his NSW Learner Driver Licence as identification.
On 20th December 2007 the Tribunal wrote to the applicant, inviting him to comment on or respond to information in writing. The letter sent out information that the Tribunal told the applicant it considered would, subject to any comments or response that he made, be the reason, or a part of the reason for affirming the decision under review. The letter was clearly intended to comply with the requirements of s 424A(1) of the Migration Act 1958.
The letter was quite lengthy, covering some seven pages[3] of the Court Book. The information referred to was set out under these headings:
[3] the letter is set out in full on pages 70 to 76 of the Court Book
·Passport
·Visitor visa
·Inconsistencies between claims in your statement to the Department and your claims at the hearing
·Claims made at the hearing that were not made in your protection visa application
·Exit from China
·Country information
·Lack of knowledge of Falun Gong
·Zhuan Falun
·Falun Gong exercises
In each case, the letter set out what the Tribunal considered was the relevance of each piece of information.
The Tribunal’s letter asked the applicant to comment on writing by 3rd January 2008. The applicant’s migration agent sought an extension of that time due to the Christmas/New Year break and the Tribunal extended the time for reply until 4th February 2008.
The applicant’s migration agent replied to the letter, providing the applicant’s comments, by a faxed letter dated 29th January 2008.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 7th February 2008. The decision was handed down on 21st February 2008, affirming the decision not to grant the applicant a Protection (Class XA) visa. A copy of the Tribunal Decision Record can be found at pages 86 to 108 of the Court Book.
In its decision, the Tribunal considered the applicant’s claims and evidence, taken from the material provided with the application for a protection visa, a summary of the applicant’s evidence given at the Tribunal hearing, the section 424A letter of 20th December 2007 and the applicant’s reply dated 29th January 2008. The Tribunal also set out Independent Evidence about the doctrines and practice of Falun Gong, taken from a publication by the United Kingdom Home Office – The UK Home Office: China Country Report (Country Information and Policy Unit, Immigration and Nationality Directorate, Home Office, United Kingdom, April 2005)[4]. The Tribunal also considered material given to it by Dr Benjamin Penny of the Centre for Cross-Cultural Research at the Australian National University in 2003 and by the Falun Dafa Association of Australia in 2001.
[4] See Court Book at 100-101
The Tribunal’s Findings and Reasons
The Tribunal’s Findings and Reasons are set out on pages 104 to 107 of the Court Book. The Tribunal accepted that the applicant was a national of the People’s Republic of China and assessed his claims against that country.
The Tribunal considered the applicant’s claim that he feared returning to China because he is a Falun Gong practitioner. The Tribunal did not find the applicant to be a credible or truthful witness, because his evidence at the hearing indicated a lack of knowledge of the basic principles and practice of Falun Gong. The Tribunal proceeded to give a number of examples of the applicant’s lack of knowledge[5].
[5] at Court Book 104 – 106.
The Tribunal also found that there were “other problems with the applicant’s evidence”[6]. The Tribunal referred to inconsistencies between the applicant’s claims to the Department of Immigration and Citizenship and the claims he made at the Tribunal hearing. These inconsistencies were specifically to the applicant in the Tribunal’s s 424A letter of the 20th December 2007. The applicant provided a written response to the Tribunal, but the Tribunal did not accept his explanation for the inconsistencies in his evidence. Although the applicant claimed that he was nervous at the hearing, the Tribunal did not accept that explanation, saying:
The Tribunal is of the view that the significant inconsistencies in the applicant’s claims cannot be explained by the fact that the applicant may have been nervous. The Tribunal is of the view that the inconsistencies between the claims the applicant made in his statement to the Department and his claims at the hearing indicate that he is not a witness of truth and his claim that he is a Falun Gong practitioner who was detained by the police is not true[7]
[6] Court Book 106
[7] Court Book 106
The Tribunal considered the information that the application provided when he applied for a visitor visa, indicating that he was the Vice General Manager of an industrial company. In his application for a protection visa and his evidence to the Tribunal hearing the applicant claimed that he had been the owner of a game machine shop. The applicant had claimed at the hearing, when asked about the inconsistency, that all of the documents submitted to the Australian Embassy had been prepared by a friend. He also made other claims at the hearing that were inconsistent with the response he gave to the section 424A letter. The Tribunal had this to say:
The applicant’s response to the s. 424A letter is inconsistent with the evidence the applicant gave at the hearing and further indicates to the Tribunal that the applicant is not a witness of truth. The Tribunal is also of the view that the fact that the applicant was prepared to provide what ever information he thought may be necessary to obtain his visitor visa also indicates that he may be prepared to provide whatever information he thought may be necessary to obtain his protection visa.
Taking into account all of the above evidence the Tribunal finds that the applicant is not a witness of truth and it rejects all of the applicant’s claims[8].
[8] Court Book at 107
The Tribunal found that there was no real chance that the applicant would face persecution if he were to return to China due to his religion, membership of a particular social group or any other Convention reason and affirmed the decision not to grant him a protection visa.
Application for Judicial Review
The applicant relies on three grounds of review. In Ground 1, he claims that:
1. The RRT decision was affected by jurisdictional error.
The applicant claims that he is a genuine Falun Gong practitioner and was persecuted by the Chinese Government when he was in China. The applicant fears that if he returns to China, he will again be persecuted. The applicant provided his written claims to the Department and also gave oral evidence before the Tribunal. The Tribunal found inconsistencies among his own evidence and therefore found the applicant is not a credible witness.
The applicant claims he was nervous when attending the hearing and therefore he was unable to respond to the Tribunal’s questions clearly.
In the applicant’s Ground 2, he claims:
2. The applicant claims that he has strong interests in Falun gong now in Australia. He practices in Australia regularly. The RRT failed to consider this claim properly.
The applicant’s Ground 3 claims:
The applicant claims that the Tribunal failed to invite him to comment on adverse information as required by s 424A of the Act. The Tribunal found inconsistencies in his response to s 424A letter and his oral response in the hearing in relation to information that the Department verified his employment details when assessing his visitor visa application (see page 22 of the decision record). The RRT failed to comment on such inconsistencies.
The applicant did not file a written outline of submissions. He attended court and made oral submissions, with the assistance of an interpreter in the Mandarin language. He told the court that the Tribunal decision was unfair and he was treated unfairly. He said that because he was nervous at the hearing and had been suffering from “a terrible headache” he was not able to respond to the questions properly.
The applicant told the court that when he attended the hearing he was not able to state his case because the Tribunal member interrupted him and said that all that he was saying had been fabricated by his migration agent. He claimed to have been treated unfairly from the outset and accused the Tribunal of bias. As a result, this treatment seriously affected his emotions and he felt that whatever he said was useless. The unfair way that he was treated had a significant effect on the whole case before the Tribunal.
The applicant told the court that he practised Falun Gong for his health and had to escape from China.
When counsel for the Minister, Ms McWilliam, raised the point in her oral submission that the applicant had not previously claimed to have suffered from a headache at the hearing, the applicant agreed that he had not previously raised that issue. However, he claimed that he had suffered from headaches for a long time, ever since he was beaten by the Chinese police. He said that he had been suffering from a headache for three days prior to the Tribunal hearing.
In reply to a point made by Ms McWilliam that he had not provided to the court a transcript of the tape of the hearing in support of his claim that the Tribunal Member had treated him unfairly, the applicant said that his migration agent had not told him about that, not had anyone mentioned that point when he was at the Tribunal hearing.
The first respondent, the Minister for Immigration and Citizenship submits that the application should be dismissed. Ground 1, it is submitted, does not assert any jurisdictional error and the applicant appears to be explaining the inconsistencies, which is, in effect, an attempt to re-agitate his case.
In relation to Ground 2, the Minister submits that the Tribunal questioned the applicant about his activities in Australia and directed its inquiries as to whether the applicant was a genuine Falun Gong practitioner. There was no evidence that the applicant ever claimed to have a strong interest in Falun Gong in Australia. In any event, the Tribunal was required to consider whether the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal made a comprehensive rejection of the entirety of the applicant’s claims. The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner.
Ms McWilliam submitted that it is readily apparent that the Tribunal did not accept that the applicant had been practising Falun Gong in Australia as it did not accept that the applicant was a genuine Falun Gong practitioner at all. This, she submitted, is “a factual finding subsumed in a finding of greater generality”, so that the Tribunal did not need to set it out specifically (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[9] ).
[9] (2003) 75 ALD 630 at 641 [47]
In relation to the applicant’s third ground, Ms McWilliam submitted that it is well-established that inconsistencies in an applicant’s evidence are not matters that must be put to the applicant for comment, as they do not constitute “information” for the purposes of s 424A of the Migration Act (see SZBYR v Minister for Immigration & Citizenship[10]).
[10] (2007) 235 ALR 609; 81 ALJR 1190 at [18]
Ms McWilliam referred the Court to the applicant’s claim, made orally at the hearing, that the Tribunal decision was affected by bias. She submitted that the Tribunal’s decision record did not disclose any evidence of bias, and it would be a rare and exceptional case where actual bias could be demonstrated solely from the Tribunal’s reasons for decision (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[11]). There was no other evidence that would lead to a finding of bias, as the applicant had not produced a transcript of the hearing. Bias, or bad faith, should be clearly alleged and clearly proved (see Minister for immigration and Multicultural and Indigenous Affairs v Jia Legeng[12] ). Thus, Ms McWilliam submitted, the claim of bias had not been made out.
[11] [2002] FCA 668
[12] (2001) 205 CLR 507
As to the applicant’s claim that he had had a headache for several days prior to the hearing, there was no evidence of that. In any case, the claim of the headache, like the applicant’s claim to have been nervous at the hearing and unable to answer questions properly, were no more than an attempt at merits review.
Conclusions
The first matter to be considered, which relates specifically to the applicant’s Ground 1, is that the Tribunal made a very strong finding that the applicant was not a credible or a truthful witness[13] and rejected the very basis of his claim for protection, that he feared persecution because he was a Falun Gong practitioner. It is well-established that a finding as to whether the applicant should be believed in his claim is a function of the primary decision-maker, the Refugee Review Tribunal. Where the Tribunal states that it does not believe a particular witness, in this case the applicant, no detailed reasons need to be given as to why that particular witness was not believed (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[14] ).
[13] Court Book at 104, 106 and 107
[14] (2000) 168 ALR 407; [2000] HCA 1 at [67]
In this case, though, the Tribunal did give detailed reasons. The Tribunal’s finding was based on:
(a)the applicant’s lack of lack of knowledge of the basic principles and practice of Falun Gong[15]; and
(b)significant inconsistencies between the information given by the applicant in:
(i)his application to the Department of Immigration and Citizenship and to the Australian Embassy for a visitor visa; and
(ii)his application to the Department of Immigration and Citizenship for a protection visa;
(c)his evidence to the Tribunal at the hearing; and
(d)the information given to the Tribunal by his migration agent on 29th January 2008 in his response to the Tribunal’s s 424A letter of 20th December 2007.
[15] Court Book 104 - 106
It was open to the Tribunal to make a credibility finding on the basis of that evidence.
The applicant also claimed in Ground 1 that he was nervous when attending the hearing and was therefore unable to respond clearly to the Tribunal’s questions. The applicant made this claim in his response to the s 424A letter, but the Tribunal rejected it as an explanation for the inconsistencies in his evidence:
The Tribunal is of the view that the significant inconsistencies in the applicant’s claims cannot be explained by the fact that the applicant may have been nervous[16].
[16] Court Book 106
The applicant has not made out any jurisdictional error in Ground 1 of his application
The applicant’s Ground 2 states that he has strong interests in Falun Gong in Australia and practices regularly. He complains that the tribunal failed to consider that claim “properly”.
The fact is that the Tribunal completely rejected the applicant’s claim to be a Falun Gong practitioner at all. This rejection was based on the applicant’s lack of knowledge of the basic principles and practice of Falun Gong. For example, the Tribunal stated:
The Tribunal is of the view that the applicant should have been able to explain these basic principles even if his books had been confiscated four years after he began practicing Falun Gong. The Tribunal is of the view that the applicant’s lack of knowledge of the basic principles and practice of Falun Gong indicates that his claim that he is a Falun Gong practitioner who has been practicing Falun Gong since 1995 is not true[17].
[17] Court Book 106
This evidence provides a basis for the Tribunal’s rejection of the applicant’s claim to be a Falun Gong practitioner and, as a matter of logic, would apply at least as much to a claim to have practised Falun Gong in Australia as it would to a claim to have practised in China.
The applicant’s second ground has not been made out.
The applicant’s Ground 3 complains that the Tribunal failed to invite him to comment on adverse information as required by s 424A of the Migration Act. The claim relates specifically to the Tribunal’s finding that there were inconsistencies between the applicant’s response to the Tribunal’s s 424A letter and the applicant’s evidence at the Tribunal hearing.
The claim is misconceived. True it is, as Ms McWilliam submitted on behalf of the Minister, that inconsistencies in an applicant’s evidence are not matters that must be put to the applicant for comment as they do not constitute “information” within s 424A of the Act, relying on SZBYR v Minister for Immigration and Citizenship[18].
[18] Supra at [18]
However, whether there were inconsistencies or not, the evidence that the Tribunal considered was all information provided by the applicant to the Tribunal for the purpose of the application for review, and, as such, would be excluded from the operation of s 424A(1) by s 424A(3)(b).
The Tribunal complied with s 424A(1) of the Act. After the hearing, it wrote to the applicant a comprehensive letter dated 20th December 2007[19] in which it put to him for his comment the inconsistencies between his application for a visitor visa, his statement to the Department of Immigration and Citizenship and his evidence at the hearing. The applicant replied, through his migration agent, by a faxed letter dated 29-1-2008[20]. The contents of that document are quite clearly information “that the applicant gave for the purpose of the application for review” (s 424A(3)(b)).
[19] Court Book 70 – 76, quoted in full in the Tribunal Decision Record at Court Book 94 - 99
[20] Court Book 80
What the Tribunal did was to compare information:
(a)which had been put to the applicant for comment under subsection 424A(1) or was excluded by s 424A(3)(b); and
(b)the applicant’s reply which was itself excluded by subsection 424A(3)(b).
Whether there were inconsistencies or not, and there were, all of the information concerned was either information in respect of which there had been a compliance with subsection 424A(1) or was excluded by subsection 424A(3)(b).
Consequently, there was no failure by the Tribunal to comply with section 424A of the Migration Act and Ground 3 fails to establish any jurisdictional error.
The applicant raised the question of bias in his oral submission to the Court. He has not provided any transcript of the Tribunal hearing. He has made assertions, and no more than assertions, about the way the Tribunal Member conducted the hearing. It is well-established that the circumstances in which the Court will find that a Tribunal Member has not acted in good faith are rare and extreme, particularly where all the evidence that is available to the Court is the Tribunal’s written reasons for decision (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs[22] (to which I was referred by counsel for the first respondent); SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[23]; and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs[24] (cited in SBBF at [16]).
[21] [2002] FCAFC 358 at [16]
[22] [2002] FCA 668 at [38]
[23] [2002] FCAFC 361 at 44
[24] [2002] FCA 805 at [25]
There is no evidence of bias. This claim by the applicant must fail.
The applicant also raised at the hearing before me a claim that he had been suffering from a headache at the Tribunal hearing, having had the headache for several days beforehand. There is no evidence of this. He made no claim to have brought this matter to the attention of the Tribunal Member. It is not unknown for applicants at a hearing before the Refugee Review Tribunal to complain of feeling ill or unwell at the hearing, and Tribunal Members usually respond appropriately. However, if the applicant did not bring to the Tribunal’s attention the fact that he was suffering from a headache it is difficult to see what the Tribunal Member can do about it.
No jurisdictional error has been made out.
The applicant was not legally represented in these proceedings. My own independent examination of the Tribunal decision discloses no jurisdictional error.
In the absence of jurisdictional error, the decision of the Refugee Review Tribunal is a privative clause decision and not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s 474(1)(c)).
The application will be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 5 June 2008
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