SZMCL v Minister for Immigration

[2008] FMCA 796

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCL v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 796

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.65, 91R, 424A, 424AA

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration v SGLB (2004) 78 ALJR 992
NAHI v Minister for Immigration [2004] FCAFC 10
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZATG v Minister for Immigration [2004] FCA 1595
SZBYR v Minister for Immigration (2007) 235 ALJR 609
VTAG v Minister for Immigration [2005] FCAFC 91

Applicant: SZMCL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 758 of 2008

Judgment of: Driver FM

Hearing date: 16 June 2008

Delivered at: Sydney

Delivered on: 16 June 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr P Snell
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 758 of 2008

SZMCL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 13 March 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from China and had made claims for persecution based upon her practice of Falun Gong.  Background facts relating to the applicant's protection visa claims and the Tribunal decision on them, as well as the decision of the Minister's delegate, are conveniently summarised in the Minister's outline of submissions filed on 6 June 2008.  I adopt as background for the purposes of this judgment paragraphs 2 through to 8 of those written submissions:

   The applicant, a citizen of the People’s Republic of China (“PRC”), submitted written claims to be a refugee which were set out in her protection visa application (“PVA”): court book (“CB”) 27.  The applicant claimed to fear persecution from the Chinese authorities on religious grounds because of her belief, practice and promotion of Falun Gong. The applicant alleged that in 1999 she was sent by her employer to government run ‘brain washing’ classes because of her practice of Falun Gong in her workplace. She further alleged that in 2004 she was detained for two days and tortured by Chinese authorities as she was suspected to be practising Falun Gong practitioner. 

   In a decision dated 23 October 2007, the delegate of the Minister refused to grant the applicant a protection visa: CB 31-39.  The delegate accepted that genuine Falun Gong practitioners may face persecution in the PRC, however, he did not accept that the applicant was a genuine practitioner given the findings that her claims were not credible: CB 38.5.  The delegate considered that if the applicant had been practising and promoting Falun Gong at work she would not have been allowed to continue working and would have faced dismissal. Further the delegate noted that that applicant had provided no details about her alleged detention in 2004 and that she was able to depart the PRC legally on her own passport: CB 39.8.

   On 26 November 2007, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 40-43.

   By a letter dated 6 December 2007, the Tribunal validly invited the applicant to attend a hearing on 15 January 2008 to give oral evidence and present arguments in support of her case: CB 46-47.

   The applicant accepted the invitation to hearing (CB 48) and attended the hearing on 15 January 2008: CB 50-51. The applicant provided a copy of her passport to the Tribunal: CB 53-59.

   The Tribunal handed down its decision on 13 March 2008. The Tribunal was not satisfied that the applicant was a Falun Gong practitioner and found that she was not a credible witness and that she had fabricated her claims: CB 77.8. The Tribunal considered the applicant’s evidence to be “inconsistent and unconvincing” (CB 75.4) given the numerous inconsistencies it found between her written claims in her PVA and her oral evidence to the Tribunal: CB 75.5-76.5. The Tribunal noted that the applicant had been practising Falun Gong for nine years, however, it found that “in answering the Tribunal’s questions, the applicant demonstrated a lack of knowledge of Falun Gong beliefs”: CB 76.7. The Tribunal also noted independent country information (ICI) relating to exiting the PRC and noted that the applicant’s claim to have departed the PRC legally on her own passport even though she was to be arrested conflicted with the ICI: CB 76.9-77.5.

   As a result of these findings the Tribunal was not satisfied that the applicant faced a real chance of suffering serious harm in the reasonably foreseeable future for a Convention reason. Accordingly, she was not a person towards whom Australia owed protection obligations: CB 70.9-80.1.

3. These proceedings began with a show cause application filed on 1 April 2008. The applicant now relies upon an amended application filed on 29 May 2008. That amended application asserts that the Tribunal relied upon irrelevant independent information and that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant continues to rely upon her affidavit filed with her original application in which she also alleges bias. I received a further affidavit from the applicant filed on 28 May 2008 which annexes a purported transcript of the Tribunal hearing. The transcript has not been verified but it appears to have been professionally prepared and I am willing to accept it as an accurate record of the Tribunal hearing. I also have before me as evidence the Court book filed on 30 April 2008.

4. I invited the applicant to make oral submissions in relation to her application including the allegation of bias. She was unable to support the allegation of bias except by reference to generalised assertions of breaches of ss.91R and 424A of the Migration Act. She asserted confusion and mental difficulties at the Tribunal hearing but I see no support for any allegation of procedural unfairness arising from that hearing, based upon the transcript. Where the applicant complained to the Tribunal of nervousness, for example at page 10 of the transcript, in relation to her son's birthday, she was given the opportunity to correct herself. The applicant asserted before me that she was affected by mental difficulties as a result of brainwashing, but she appeared lucid and coherent both before me and, on the basis of the transcript, before the Tribunal. I reject the allegation of bias.

5. I also reject the allegation that the Tribunal relied upon irrelevant country information.  That issue is addressed in the Minister's written submissions in paragraphs 13 to 15.  I agree with those submissions and adopt them with any necessary amendments for the purposes of this judgment:

   The Tribunal considered the applicant’s evidence at the hearing about her practice of Falun Gong in Australia and that she had attended “a few times” but had a sore back and neck: CB 71.5. However, the Tribunal, on the basis of the adverse credibility findings, did not accept that the applicant had ever practiced Falun Gong in Australia: CB 78.2. This finding was open to the Tribunal on the evidence before it.

   The additional assertion in this ground is assumed to be a reference to the ICI which the Tribunal relied on, namely the ICI relating to exit procedures from the PRC and passport information.

   The Tribunal is not obliged to refer to independent country information or search out and obtain information to support the applicant’s case.[1]  Further, the choice and assessment of country information was a factual matter for the Tribunal which had no obligation to inquire into more recent country information than was before it.[2]  It was for the applicant to put forward whatever evidence or other material she wished to have taken into account and for the Tribunal to decide whether the claim was made out.[3]  The Tribunal is not under any duty to enquire nor is it obliged to accept a claim merely because positive evidence to the contrary is absent.[4] No jurisdictional error is revealed because the facts advanced by the applicant did not enable the Tribunal to be satisfied that the applicable criteria under s.65 of the Migration Act had been met.

   [1] Minister for Immigration v SGLB (2004) 78 ALJR 992 at [43]; SZATG v Minister for Immigration [2004] FCA 1595 at [22]–[26] per Hely J.

   [2] Citing in support: NAHI vMinister for Immigration [2004] FCAFC 10 at [11-13]; VTAG v Minister for Immigration [2005] FCAFC 91 at [41]

   [3] Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437, especially at [57] per Gummow and Heydon JJ (Gleeson CJ relevantly agreeing at [1]); Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ

   [4] SZATG v Minister for Immigration [2004] FCA 1595 at [36] per Hely J

6. The Tribunal was entitled to have regard to country information about the practice of Falun Gong in China and the Chinese government's attitude to it.  There is no arguable case that the Tribunal's decision is vitiated on the basis of reliance upon irrelevant material.

7. The applicant asserts that the Tribunal failed to comply with s.424A of the Migration Act. It is plain from the Tribunal decision that the Tribunal made an adverse credibility finding against the applicant, based upon inconsistencies between and within her written and oral claims, with particular reference to internal inconsistencies in her oral evidence at the Tribunal hearing.

8. The Minister relies upon the decision of the High Court in SZBYR v Minister for Immigration (2007) 235 ALJR 609 at page 616, paragraph 18, in support of the proposition that inconsistencies, gaps and other deficiencies in the applicant's evidence were not “information” for the purposes of s.424A. Even if that be wrong and there was an obligation of disclosure of the Tribunal's concerns about inconsistencies in the applicant's claims and evidence, it was open to the Tribunal to make that disclosure orally pursuant to s.424A(2A) of the Migration Act. That is what the Tribunal did, possibly out of an abundance of caution. At CB 71, the presiding member records:

   At the end of the hearing, the Tribunal gave the applicant clear particulars of her inconsistent evidence, her lack of knowledge about Falun Gong, and independent information about passports and exit procedures from China which was at odds with her claims in this regard.  The Tribunal explained these particulars could lead the Tribunal to conclude that she was not telling the truth in her claims, that she was not a genuine Falun Gong practitioner and she did not fear persecution in China as she claimed.  The Tribunal explained that if it did come to these conclusions it could decide to affirm the decision to refuse her the protection visa.  The Tribunal invited the applicant to comment on or respond to those particulars of information which it had set out to her.  The applicant accepted and requested time to do so.  The Tribunal allowed until 5 February 2008.  The Tribunal also informed the applicant that she could request a copy of the audio record of the hearing. 

   The applicant had not responded or provided comments at the date of the decision.

9. The transcript between pages 31 and 35 confirms that the Tribunal embarked upon a course of oral disclosure pursuant to s 424AA of the Migration Act. To the extent that that section was engaged, which the Minister does not concede, I am satisfied that the Tribunal met its obligations under s.424AA(b)(i),(ii),(iii) and (iv). By complying with its obligations under s.424AA to the extent that those obligations were engaged, the Tribunal also met its obligations under s.424A(2A) so as to relieve itself of any obligation to make disclosure in writing. I find that there is no arguable case that the Tribunal breached s.424A.

10. I conclude that none of the grounds advanced by the applicant are arguable.  Neither is any arguable case of jurisdictional error apparent from my own reading of the material. 

11. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules).

12. Costs should follow the event in this case. The Minister seeks scale costs of $2500. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

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

Associate: 

Date:  17 June 2008