SZMIY v Minister for Immigration

[2008] FMCA 1647

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIY v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1647

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no procedural unfairness established – no breach of s.91R(3) arising from references to conduct in Australia – no other jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424AA, 425

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
SZGDJ v Minister for Immigration & Citizenship [2008] HCASL 479
SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515
SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270
SZMDC v Minister for Immigration (2008) 104 ALD 426
SZMDJ v Minister for Immigration [2008] FMCA 1298

Applicant: SZMIY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1440 of 2008

Judgment of: Smith FM

Hearing date: 1 December 2008

Delivered at: Sydney

Delivered on: 1 December 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1440 of 2008

SZMIY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in September 2007, and on 19 October she applied for a protection visa.  A brief typed statement attached to the visa application explained why she claimed to fear to return to the Peoples Republic of China. 

2. She said she had been a Falun Gong practitioner, and “in November 2001 I was put into jail for three months just because I was reported to the police that I practised Falun Gong”.  She suffered “torment at the brainwashing class in the jail”, which caused a heart disease for which she was sent to hospital.  After she was released, “the policemen kept close surveillance on me.  In 2003 I was fired by the employer where I worked for 22 years.  I was so depressed, I could not find a job afterwards”.  She claimed that in Australia she had joined Falun Gong practitioners in practice sessions. 

3. No further details nor supporting evidence of these claims was given to the Department of Immigration, and the applicant did not attend an interview with the delegate to which she was invited.  The delegate refused the application on 11 December 2007. 

4. On appeal, the applicant did not present any supporting evidence, but attended a hearing on 20 February 2008.  A transcript of the hearing is not in evidence, although the applicant has been given that opportunity.  The Tribunal’s statement of reasons includes a description of the evidence given by the applicant, but does not detail a procedure which it followed at the end of the hearing.  It said only:

   At the hearing the Tribunal gave particulars to the applicant pursuant to s.424AA of the Act.  The Tribunal asked the applicant if she wanted further time to respond or comment to the information. The applicant stated that she seeks a protection visa and does not want to be persecuted and needed further time. The Tribunal allowed the applicant 7 days to provide further evidence including medical evidence.

5. Earlier in the hearing, the applicant told the Tribunal that she started practising Falun Gong in 1998, but it was only after she was arrested in October 2001 that she found out that what she had been doing was practising Falun Gong, and she had not known that it was illegal.  She had not read any of the books or literature of Falun Gong, and after her release she claimed not to have practised regularly.  She told the Tribunal “occasionally she practised the first set of exercises but she hardly practised the second to the fifth exercises since her release”. 

6. The applicant told the Tribunal about her employment which, in fact, had continued in various places on a casual basis after she lost a job in 2003.  The applicant also told the Tribunal about travel to Hong Kong and Singapore which she had made in 2007. The applicant claimed that she feared that her life would be in danger if she returned to China because she had been practising Falun Gong in Australia. 

7. The applicant did not forward anything further to the Tribunal after the hearing, notwithstanding that several months elapsed before it handed down its decision.  There is evidence that during that time the applicant sought advice from at least one migration agent. 

8. The Tribunal handed down its decision on 6 May 2008, and affirmed the delegate's decision.  The Tribunal did not accept as true, that the applicant was a genuine Falun Gong practitioner and had practised Falun Gong in either China or Australia as she claimed.  It gave many reasons for concluding this. 

9. These included the absence of knowledge by the applicant of some “basic information about Falun Gong”, and the absence of witnesses to corroborate that she was a Falun Gong practitioner in Australia.  The Tribunal also said that the applicant's claimed history of practising Falun Gong and her arrest and detention was not credible in the light of country information. 

10. The Tribunal also considered her failure to attend the interview with the delegate.  The applicant had given the explanation to the Tribunal in the course of the hearing, that she had been distracted by attending a learner car licence course and that the interview had “slipped her mind”.  However, the Tribunal thought that “her failure to attend the interview confirms to the Tribunal that the applicant does not have a subjective fear of being persecuted in China”. 

11. The Tribunal thought that the applicant's evidence about her employment was contradictory, and that it was not true, as claimed in her original visa statement, that she had been unable to find work after 2003.  The Tribunal thought that her ability and willingness to travel overseas using her passport showed that she was not of adverse interest to the authorities, and that she did not have a subjective fear of being persecuted in China in February 2007 and subsequently. 

12. The Tribunal made an express finding in relation to the applicant's claimed attendances in Australia at a Falun Gong practice site five or six times over five months that, “the Tribunal does not accept that the applicant has attended Falun Gong practice sites in Australia and finds that the applicant is not a genuine Falun Gong practitioner”.  The Tribunal, therefore, did not accept any of the applicant's claimed history in China or in Australia. 

13. The Tribunal referred to the applicant's claim that her health had been affected by a claimed detention, and that she had received treatment in Australia.  It noted that she had been invited to provide medical evidence, but had not done so.  It therefore did not accept that her health had been adversely affected as claimed. 

14. The Tribunal was not satisfied that there was a real chance that the applicant would face serious harm if she returned to China, and did not accept she had a well founded fear of persecution within the meaning of the Convention. 

15. The applicant now asks the Court to set aside the Tribunal's decision, and to send the matter back to the Tribunal.  I can only make these orders if 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 she is entitled to a protection visa or any other permission to stay in Australia. 

16. The applicant has presented grounds in her original application and an amended application, but has not made any written submissions nor tendered any additional evidence to that which is in the Green Book. 

17. The original application makes unparticularised assertions that “jurisdictional error has been made” and “procedural fairness has been denied”.  However, these are unexplained by the applicant, and I have not been able to give them any meaningful content. 

18. The amended application presents an argument that there was a breach of procedures under s.424AA of the Migration Act. The argument contends:

    Where, as in this case, the Tribunal put the information to the applicant, required a response during the hearing and, only at the end of the hearing, advised the applicant that she could seek additional time to respond, the Tribunal has failed to give the applicant the opportunity required by s.424AA to consider the information before responding.

19. However, the argument does not indicate the particular information in respect of which it is argued that s.424AA was not complied with. Even if the Tribunal was under an obligation under the procedure set out in that section, it would be difficult for me to find any defect in the absence of a transcript of the hearing to show how the Tribunal “gave particulars to the applicant pursuant to s.424AA”, as claimed by it in its statement of reasons.   The contention of a defect in the procedure is, therefore, unsupported by the evidence. 

20. Moreover, I accept the submissions of the Minister's counsel that the Tribunal was under no jurisdictional obligations to follow the procedure in s.424AA. On my reading of the Tribunal's decision, there was no “information” which it relied upon as a reason for affirming the delegate's decision, and which would have given rise to a breach of its obligations under s.424A(1) if the Tribunal did not follow the procedures in s.424AA so as to cause s.424A(2A) to apply. Recent judgments in this Court have followed the judgment of Cowdroy J in SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270, to hold that s.424AA operates only as a adjunct to s.424A(1) (see SZMDJ v Minister for Immigration [2008] FMCA 1298 at [21] and [22]). I am, therefore, not persuaded that there is any jurisdictional error made by the Tribunal in relation to s.424AA.

21. Nor am I persuaded by the applicant's submissions today that the Tribunal should have allowed her more time to present evidence to establish the truth of her claims. The applicant had been given many warnings in the correspondence sent to her before the hearing that she should present all the evidence upon which she relied prior to or at the hearing. In these circumstances, I am not persuaded that the Tribunal was acting contrary to any procedural obligation of the Tribunal under the Migration Act or otherwise, when it allowed the applicant only seven days to provide some corroborative medical or other evidence. Moreover, she in fact had a much longer period to present evidence before the Tribunal gave its decision, and she did not make use of this.

22. I am not persuaded that the applicant's complaint that “she was very nervous at the hearing” identifies any jurisdictional error on the part of the Tribunal. There is no evidence before me that, by reason of any serious incapacity, she was denied the opportunity to present her evidence and submissions at the hearing as is required by s.425 of the Migration Act as interpreted in the Federal Court, in particular, in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553.

23. At a show-cause hearing in this matter I identified a further issue upon which I invited submissions from the parties. This was whether the Tribunal's references to the applicant's conduct in Australia conformed with the requirements of s.91R(3) of the Migration Act as interpreted by the Full Court in SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515. The Minister's submissions have addressed this, but the applicant has not presented any submissions.

24. I accept the Minister's submissions. In my opinion, the Tribunal's reference to the applicant's failure to attend an interview with the delegate, when determining whether she had a well founded fear of persecution, did not make use of evidence about “conduct in Australia” within s.91R(3) as interpreted by the Full Court. At [22] of SZJGV, their Honours held that the section could only be applied after “primary findings of fact have been made”, and they also suggested that the history of the visa application in the Department of Immigration and the Tribunal was not part of the relevant conduct which is addressed by the section.  In my opinion, the Tribunal's conclusions, based on the applicant's non attendance at an interview, concerned such conduct. 

25. The Tribunal also addressed the applicant's sur place claim in relation to her attendances at Falun Gong sites in Australia.  However, it disbelieved her evidence about that conduct.  It did not make "primary findings of fact" which would then have given rise to obligations under 91R(3)(b) in relation to that conduct. 

26. I also consider that authorities in the Federal Court which I discussed in SZMDC v Minister for Immigration (2008) 104 ALD 426 would apply in relation to the Tribunal's conclusions based on its findings about the applicant's activities in Australia. The weight of authority binding on this Court is that s.91R(3) does not concern evidence of conduct in Australia which was not relied upon by an applicant as part of her refugee claims. That opinion appears to have gained the support of the High Court subsequent to SZJGV, in the course of a special leave determination (see SZGDJ v Minister for Immigration & Citizenship [2008] HCASL 479 at [5]).

27. For all these reasons I am not satisfied that jurisdictional error occurred by reference to s.91R(3).

28. The applicant today, as well as making the points which I've addressed above, claimed that she had told the truth to the Tribunal and that she would have evidence to prove it.  However, as I have explained to the applicant, her proceeding in this Court is not an occasion where she can establish afresh her refugee claims. 

29. For the above reasons, I am not satisfied that the Tribunal's decision was affected by any jurisdictional error.  I must, therefore, dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM.

Associate:  Michael Abood

Date:  15 December 2008