SZMDC v Minister for Immigration & Anor - [2008] FMCA 1282

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDC v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1282

MIGRATION – RRT decision – Chinese applicant claiming persecution as Falun Gong practitioner – disbelieved by Tribunal – findings based on failure to practise in Australia – evidence given under questioning by Tribunal – whether ‘conduct in Australia’ within s.91R(3) – effect of Federal Court authorities – whether implicit finding under s.91R(3)(b) – no jurisdictional error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b), 425, 425(1), 425A, 425A(1), 425A(2), 425A(3), 425A(4), 426A, 441A, 441A(4), 441C(4)

Migration Regulations 1994 (Cth), reg.4.35D

SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91
SZGQK v Minister for Immigration & Anor [2008] FMCA 982
SZHAY v Minister for Immigration & Anor (2006) 199 FLR 148, [2006] FMCA 261
SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 648
SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451, [2008] FCAFC 105
SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211
SZLQX v Minister for Immigration & Citizenship [2008] FCA 1286
SZMAI v Minister for Immigration & Anor [2008] FMCA 1158
SZMCH v Minister for Immigration & Anor [2008] FMCA 1181

Applicant:

SZMDC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 867 of 2008

Judgment of:

Smith FM

Hearing date:

1 September 2008

Delivered at:

Sydney

Delivered on:

1 September 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 867 of 2008

SZMDC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in September 2007 on a passport issued by the People’s Republic of China. On 3 October 2007 he applied for a protection visa. In his application he claimed he was a Chinese citizen by birth, and attached a brief statement explaining why he feared to return to that country. He said:
I am a genuine Falun Gong practitioner. … Just because I insist on practicing Falun Gong, I was also arrested in November 2001. I was beaten and kicked by the police on the scene upon my arrest. Later, I was sent to [name] Detention Centre for two months.
His statement claimed that he had been mistreated in detention, and that his gaol term had been increased by an unidentified amount of time. He claimed that he had bribed a police officer “to wash my so‑called criminal record and issue a passport. Eventually I got a visa to come to Australia. … Here I can practice Falun Gong as long as I like”.The applicant presented no details of these claims, nor any supporting evidence, either to the Department or to the Refugee Review Tribunal.
A delegate refused the application on 18 December 2007, and the applicant appealed. He did not appoint an agent nor authorised recipient for correspondence, and gave a postal address where he requested correspondence to be sent.
The Tribunal posted to that address a letter dated 7 February 2008, inviting the applicant to attend a hearing on 7 March 2008. The applicant attended the hearing, but there is no evidence giving the details of the Tribunal’s questioning of the applicant and what he said. The applicant has not presented a transcript of the hearing, although given that opportunity.
At the end of the hearing, the Tribunal announced its decision affirming the delegate’s decision. It subsequently gave the applicant its written decision and statement of reasons.
The statement of reasons referred to the claims made by the applicant, and very briefly referred to his oral evidence:
23.I asked the applicant a number of questions about basic Falun Gong beliefs. He not only was unable to answer correctly any of the questions, but seemed not even to understand the terms used.
24.I asked whether he practiced Falun Gong in Australia. He said that he did not because he had only been here a short time. I asked where he lived. He replied that he lived in Campsie. I pointed out to him that there was a Falun Gong practice group in Campsie.
25.I noted that his passport, which was before me in hearing, had been issued in Sydney by the Chinese Consulate General and asked where was the passport on which he had entered Australia. The applicant said that it had been retained by the tour group leader.
The Tribunal explained its findings and reasons, with similar brevity:
26.I accept that the applicant is a citizen of China.
27.I do not accept any of the applicant’s other claims insofar as they relate to his claimed fear of persecution. His complete ignorance of basic Falun Gong terminology, his inability to name one of the Falun Gong exercises about which I asked him and his failure to make contact with Falun Gong practitioners in Australia or to take any other steps to start practice here persuade me that he is not and has never been a Falun Gong practitioner.
28.In these circumstances, I do not accept that he was arrested for practice of Falun Gong or that he was mistreated while in detention and made to break off from Falun Gong. Nor do I accept that there is a real chance of such things happening should he return to China.
29.In short, I do not accept that there is a real chance of the applicant being persecuted in any way should he return to China in the foreseeable future.
30.I find that the applicant does not have a well founded fear of persecution for a Convention reason.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter to the Tribunal for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant has filed one application in the Court, which contains the following two grounds:
1.The decision from Refugee Review Tribunal is affected by a jurisdictional error on the basis of a breach of its obligation pursuant to section 425A of the Migration Act 1958 to give notice of the day, time and place upon which the applicant was scheduled to appear at the hearing by one of the methods specified in section 441A and by failing to give the prescribed period of notice.
2.The Refugee Review Tribunal failed to consider that: I am a genuine Falun Gong practitioner. Since July 1999, the Chinese government outlawed Falun Gong, millions of practitioners have been sent into jail. Almost all of them are brutally tortured, causing hundreds of them died. Just because I insist on practicing Falun Gong, I was also arrested on in November 2001. I was beaten and kicked by police on the scene upon my arrest. Later, I was sent to [name] Detention Centre for two months.
The first ground is lacking in any particulars of the asserted non‑compliance with ss.425A or 441A of the Migration Act 1958 (Cth). Indeed, it appears to have been taken from an irrelevant precedent for a case where an applicant did not attend a hearing.
I am unable to identify any substance for the ground in relation to the present case, and accept the submission of counsel for the Minister:
9A notice dated 7 February 2008 was sent to the Applicant. The notice:
(a)invited the Applicant to appear before the Tribunal to give evidence and present arguments (cf s 425(1));
(b)specified the date, time and place at which the hearing was to be held (cf s 425A(1));
(c)was addressed to the mailing address that he had specified in his application for review, and there is nothing to suggest that it was not dispatched by prepaid post to this address in accordance with s 441A(4) of the Act (cf s 425A(2));
(d)provided a period of notice that was longer than the period prescribed in reg.4.35D of the Migration Regulations (cf s 425A(3)) (that period is 14 days after notification is received, with receipt deemed to occur 7 working days after the date of the notice (s 441C(4)); and
(e)contained a statement of the effect of s 426A (cf s 425A(4)).
10The invitation to attend a hearing thus complied with the relevant statutory requirements.
The second ground essentially repeats the refugee claim originally presented to the Department and to the Tribunal, and invites the Court to consider for itself whether the applicant is a refugee. However, it has no power to do this.
On the evidence before me, there is no substance to the contention that the Tribunal failed to consider the applicant’s claims. I consider that the Tribunal has given legally sufficient reasons for not being satisfied by his claims. Although they are brief, they show that it addressed the claims made by the applicant, and explained rational reasons for rejecting the truth of the applicant’s claim to have an association with Falun Gong. I am not satisfied that its reasoning was not open to it on the evidence before it.
I therefore am not persuaded that jurisdictional error is established by either of the grounds presented by the applicant.
I would probably have dismissed this application under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) at a show‑cause hearing, if I had not identified a concern arising from the Tribunal’s reasoning in its paragraph 27, set out above, in the light of the recent decision of the Full Court in SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451, [2008] FCAFC 105. I therefore set the matter down for a final hearing today, and have had the benefit of useful submissions from counsel briefed by the Minister.
In SZJGV the Full Court construed s.91R(3) of the Migration Act as precluding a Tribunal from taking into account an applicant’s conduct in Australia as a reason for finding that he or she did not have a well‑founded fear of persecution, unless the Tribunal had first made a finding in terms of s.91R(3)(b): that he or she engaged in that conduct “otherwise than for the purpose of strengthening the person’s claim to be a refugee”. This has the consequence, that a Tribunal must ignore some conduct in Australia which would disprove the genuineness of refugee claims, as well as conduct which might support a refugee claim (see SZGQK v Minister for Immigration & Anor [2008] FMCA 982 at [22]‑[24], also SZMCH v Minister for Immigration & Anor [2008] FMCA 1181 at [44], and SZMAI v Minister for Immigration & Anor [2008] FMCA 1158 at [16]‑[21]).
It is clear that the present Tribunal assessed the applicant’s evidence about how he behaved in Australia after his arrival and, in particular, his admitted failure to engage in Falun Gong practice in the nearly six months before the hearing. The Tribunal then made a finding that there was “failure to make contact with Falun Gong practitioners in Australia or to take any other steps to start practice here”, and gave weight to that finding when deciding that the applicant did not have a well‑founded fear of persecution for a Convention reason.
Using ordinary language, this would appear to be a conclusion based on a finding concerning the applicant’s “conduct in Australia” in the sense of “personal behaviour” or “way of acting” (see the Macquarie Dictionary). In ordinary language, “conduct” includes inaction or a failure to perform actions, at least when they are within the capacity and opportunity of the person, and particularly if they can be assumed to have been within the contemplation of the person if their refugee claims were well‑founded. In legal contexts, it is also usual to construe general references in legislation to a person’s behaviour as including their voluntary omissions or failures to act.
However, whether s.91R(3) addresses a Tribunal’s reliance on findings on evidence of inaction which was elicited in the questioning of the applicant by the Tribunal, was not determined in SZJGV. In the three cases which were addressed by Spender, Edmonds and Tracey JJ, their Honours noted that all of them involved findings made about evidence that was “called by the appellant”. As their Honours said:
23In each of the present cases, the Tribunal received evidence and made findings about the appellant’s activities (or lack of them) in Australia. In each case, the evidence that led to the findings was called by the appellant. In each case, the Tribunal appreciated that s 91R(3) applied and that, unless it was satisfied that the appellant had engaged in the conduct for a purpose other than that identified in paragraph (b), it was bound to disregard that conduct. In each case, the Tribunal either declared that it was not satisfied that the appellant’s conduct was undertaken for a purpose other than that of enhancing his or her claim to be a refugee or that it was satisfied that the conduct had been engaged in to assist the claim. It further declared that the conduct must, accordingly, be disregarded. Despite these declarations, counsel for the appellants submits that, in each case, the Tribunal did have regard to the appellant’s conduct. It did so by relying on that conduct, in part, as a reason for concluding that the appellant was not a refugee.
At [26] their Honours referred to the present issue of construction of s.91R(3), and expressly avoided arriving at opinions on it. They said in relation to cases where a Tribunal’s adverse conclusion was based upon evidence about an applicant’s conduct in Australia which had come to it from other sources, and had not been presented by the applicant in support of a refugee claim:
26A second question which does not arise on these appeals and need not be resolved is whether s 91R(3) is enlivened only when an applicant seeks to rely on his or her conduct in Australia to support a claim to be a refugee. There may be cases in which the decision maker becomes aware of relevant conduct from other sources. The evidence may be prejudicial to an applicant who will not seek to rely on it. Even so, it is arguable that s 91R(3) will be engaged and will require the decision maker to disregard the evidence.
The unqualified language of s.91R(3) lends support to the difficulty their Honours appear to have with drawing distinctions as to the sources of evidence concerning an applicant’s conduct in Australia, particularly since they rejected the purposive interpretation which had been submitted by the Minister, based on the second reading speech. Once the prohibition in s.91R(3) is construed as doing more than conditioning the drawing of favourable conclusions on refugee status based on evidence of conduct in Australia, it is difficult to confine the unqualified language of the prohibition to evidence presented by the applicant when drawing unfavourable conclusions.
However, it is clear that their Honours were conscious of a contrary opinion in an earlier judgment of Jacobson J in SZHFE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 648, to which they refer at [16] and [17]. Jacobson J’s judgment was also given in the exercise of appellate jurisdiction from this Court. It included the opinion:
30The effect of the [Minister’s] submission is that section 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well‑founded fear of persecution. In my opinion this is plainly the effect of section 91R(3) and the subsection is not enlivened in the present case.
In a judgment subsequent to SZJGV, Jacobson J applied his earlier opinion, and said that the three justices in SZJGV showed “no apparent disapproval” of his earlier opinion (see SZLQX v Minister for Immigration & Citizenship [2008] FCA 1286 at [21]). As I have indicated, this is correct. However, clearly there was not the converse: an “apparent approval” of his opinion.
Jessup J in SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211 engaged in a closer analysis of SZJGV, and noted that its reasoning did not lead to a construction of s.91R(3) limited in the manner adopted by Jacobson J. He said:
17Uninstructed by authority, I would take the view that as a matter of construction, s 91R(3) of the Act is concerned with a situation in which an applicant for refugee status would have an interest in having his or her conduct taken into account, and is concerned to prevent such an applicant from so modifying what would otherwise be his or her conduct in Australia for the purpose of establishing a case for the recognition of such status, and then relying upon that conduct. I would have agreed with the views of Jacobson J, in SZHFE. It seems, however, from the reasons of the Full Court in SZJGV, that s 91R(3) is not so limited. How much wider the operation of the subsection may be was not definitively established by SZJGV, but it is clear at least that evidence advanced by an applicant, whether it has the tendency to support or to damage the applicant’s case, must be disregarded unless the decision maker reaches the state of satisfaction to which the subsection refers. The Full Court made it clear that their reasons were not to be understood as dealing with evidence or information other than that led, adduced or relied upon by the applicant in question.
Jessup J concluded that SZHFE remained good authority on the point, and followed it. He held that a Tribunal’s reliance on its findings of inaction by a refugee claimant in Australia did not engage s.91R(3), because the action which had not been taken by the applicant “was not an element of the [applicant’s] evidentiary case before the Tribunal” (see [19] of SZLDV).
In my opinion, I am bound to follow these opinions in SZHFE and SZLDV, notwithstanding some uncertainty about their consistency with the three bench decision in SZJGV (see SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91 at [42]).
In the present case, they have the consequence that the Tribunal was not obliged to make findings in terms of s.91R(3)(b) before adversely relying upon the applicant’s inactivity in relation to engaging in Falun Gong practice in Australia, because the evidence upon which its finding was based was not presented by the applicant to the Tribunal in support of his refugee claims.
There are two other reasons for concluding that there was no failure to comply with s.91R(3) in the reasoning of the present Tribunal. The first is the additional opinion of Jessup J in SZLDV at [19], that when an applicant informed the Tribunal “of something which had not happened … the circumstance of which he so informed the Tribunal [does not amount] to conduct engaged in by him within the meaning of s 91R(3) of the Act”. This appears to draw a distinction between evidence given by an applicant of active conduct and evidence of inactive conduct, and to bring within the prohibition in s.91R(3) only a Tribunal’s reliance upon the former type of evidence.
Another approach to the present Tribunal’s reasoning and one which, in my opinion, might appear better suited to an understanding of how the Tribunal actually reasoned in the case, is to understand the Tribunal’s reasoning as containing an implicit finding in terms of s.91R(3)(b). That is, that it considered that the applicant’s inactivity in relation to Falun Gong practice in Australia was conduct which clearly was not “for the purpose of strengthening the person’s claim to be a refugee”. Such an implicit finding would appear to be so obvious on the evidence before the Tribunal as not to require an express finding in terms of s.91R(3)(b). If an implicit finding was made, the Tribunal could rely upon his behaviour in Australia relating to Falun Gong practice, even if it was “conduct in Australia” coming within the prohibition in s.91R(3).

This approach does not require the drawing of subtle distinctions in the construction of s.91R(3), but requires latitude in reading the Tribunal’s reasons in the absence of an express finding in terms of s.91R(3)(b). However, it is supported by authority which I would respectfully follow. In SZJGV their Honours adverted to reasoning along these lines which had been suggested by Driver FM in SZHAY v Minister for Immigration & Anor (2006) 199 FLR 148, [2006] FMCA 261 without any disapproval (see [12] and [13] of SZJGV).
In my opinion, the present Tribunal’s reasoning is to be understood on the basis that plainly the Tribunal must have found that “his failure to make contact with the Falun Gong practitioners in Australia or to take any other steps to start practice here” was behaviour for which it could make the positive finding in s.91R(3)(b). This was so obvious as to go without saying, and in my opinion it was not necessary for the Tribunal to make that finding expressly. This conclusion provides the third reason why I would not find a breach of s.91R(3) in the present Tribunal’s reasoning.
For all the above reasons, I am not satisfied that jurisdictional error affects the present Tribunal’s decision. I must therefore dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 September 2008