SZMMA v Minister for Immigration
[2008] FMCA 1601
•19 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1601 |
| MIGRATION – Review of decision of RRT – where applicant alleges failure to comply with s.424A Migration Act 1958. |
| Migration Act 1958, s.424A |
| SZBYR v Minister for Immigration [2007] HCA 26 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 |
| Applicant: | SZMMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1680 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 November 2008 |
| Date of Last Submission: | 19 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 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 $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1680 of 2008
| SZMMA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. She arrived in Australia on 23 September 2007 and on 31 October 2007 applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 8 January 2008 a delegate of the Minister refused to grant a protection visa and on 15 January 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal. On 24 April 2008 the applicant attended before the Tribunal and gave evidence. On 5 May 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 27 May. The ground upon which the applicant claims she was a person to whom Australia owed protection obligations was that she was a Falun Gong practitioner who had been persecuted in China for her adherence to that sect. In her application for a protection visa she explained how she had a shop selling meat and a customer gave her a book to read in about 1998:
“He then invited me to practise Falun Gong together with him at a park in Xin Hui.” [CB 62]
She claims in that statement that after the Falun Gong movement was banned in 1999 the police visited her and took her away and required her to attend classes:
“To wash our brains so that we could totally stop practising Falun Gong.” [CB 62]
She claimed that she was once detained by the police and suffered mental and physical torture. When she saw that she would suffer further persecution because of her belief she came to visit her son who was studying in Australia and applied for protection.
At the Tribunal hearing the applicant told that her introduction to Falun Gong came from a woman called "Aunty Wong" who was a customer of her shop. She was suffering from fatigue at the time and Aunty Wong told her that this would help. She saw lots of people practising Falun Gong in a park. She was invited to join them by Aunty Wong but she said that she just did some meditation and sitting down exercises but she would tell her customers about Falun Gong and advise them to attend practice gatherings. The applicant said that she personally stopped going to the park in about 2001. She also said that in about July 1999 she was accused by the authorities of encouraging people to practise Falun Gong and that people were accusing her of being the leader. The applicant told the Tribunal that she was constantly under surveillance and on about 20 July 1999 she was in the park when the police surrounded her group and took them all to the police station. She told how she was required to spend the night in the police station and paid RMB 10,000 yuan to secure her release.
The Tribunal questioned the applicant about her story and about some inconsistencies in her evidence, in particular, her evidence concerning her ownership of the butcher's shop which, in her protection visa application, she claimed she had owned until 2006 but before the Tribunal she said that she had given up the butcher's shop in about 1999 and started a new job in marketing in about 2000. The Tribunal asked the applicant about certain dates, which it appeared she was vague about, and the Tribunal took up with her its concern that she claimed to have replaced the previous branch head and become a senior branch member at her branch of the Falun Gong when she was at the same time telling the Tribunal that she hardly knew anything about the sect or its exercises.
The applicant was questioned about her practice of Falun Gong in Australia, which she said she only undertook at home because she did not dare go out. She then said that she was receiving help from Falun Gong members and that she was practising with them.
At [CB 67] the Tribunal told the applicant that it was of the view that she was not a Falun Gong practitioner and that her evidence had not convinced the Tribunal that she had been targeted by Chinese authorities because she was suspected of being one. The Tribunal offered the applicant an opportunity to comment on its views either orally or in writing. The applicant said that she would prefer to reply orally.
In its findings and reasons, which commence at [CB 68] the Tribunal concluded that it could not find that the applicant was credible on many key aspects of her claims. It set out at [CB 67] and [68], a series of inconsistencies, contradictions and implausibilities that led it to conclude that the applicant was not a reliable witness. It dealt with the inconsistency relating to her evidence concerning her ownership of the meat shop. The Tribunal noted the difference between a statement in her application for a protection visa, when it would appear that a male person gave her the Falun Gong book, and her evidence before the Tribunal when she said that it was Aunty Wong. The Tribunal noted that the applicant had claimed that she had continued to practise Falun Gong for quite a considerable time but knew very little about it and admitted that she only knew one sitting down exercise. The Tribunal reminded itself that it had told the applicant that it could not understand how she was imputed to be a senior member of an organisation she knew so little about. The Tribunal also noted that although the applicant had said that she was coming to Australia because of her ability to practise Falun Gong here her evidence was that she had only practised it privately at home and pointed out the inconsistencies in her evidence concerning that relationship with other Falun Gong practitioners. Finally, the Tribunal noted that the applicant had received a passport in 2003 but had not availed herself of her ability to travel until September 2007. As she had travelled unhindered on her own passport this would indicate that she was not a person of any interest to the Chinese authorities.
The Tribunal concluded that the applicant was not a genuine Falun Gong practitioner and that it was not satisfied that the authorities suspected her of being involved in any capacity with Falun Gong practitioners or that she practised Falun Gong herself. It did not accept that she was detained, arrested, or had to pay bribes as claimed, or had suffered any serious harm:
“The Tribunal finds that there is no credible evidence on which it could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if she returns to China.” [CB 70]
The applicant filed an application for review of the Tribunal's decision with this court on 1 July 2008. On 8 September 2008 she filed an amended application. This amended application contained two grounds, the first was that the Tribunal failed to consider the fact that she had been practising Falun Gong in Australia and that her activities here may cause further persecution to her on her return to China:
“The Tribunal referred to wrong independent information.”
There is no doubt that the Tribunal did consider the applicant's practice of Falun Gong in Australia and dealt with it at some length in its decision record. It noted that her practice of Falun Gong in Australia was in private and one can infer that it did not consider that practice in private would cause her any problems should she return to China. Of course this assessment assumes that the Tribunal accepted that she did practise Falun Gong in private; but the Tribunal did not accept that. It did not believe that the applicant practised Falun Gong at all and therefore the question of what might happen to her should she return to China was moot. The second sentence of this ground of application refers to independent information. I have carefully perused the Tribunal's decision and the other documents contained in the court book and I can find no reference to independent country information.
The second ground raised by the applicant is that the Tribunal failed to notify her in writing the reason or part of the reasons for affirming the decision and therefore failed to apply the provisions of s.424A of the Migration Act 1958 (the “Act”). This is a familiar complaint of applicants who come from civil law countries and it indicates a misunderstanding of the manner in which decisions are reached under the common law. It also indicates a misunderstanding of the provisions of s.424A as elucidated by the High Court in SZBYR v Ministerfor Immigration [2007] HCA 26 where at [18] their Honours Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ, said:
“If the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].
"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
Before me today the applicant said that the member could not understand what she was saying and therefore he was biased against her. I note that the applicant had the benefit of a Cantonese interpreter who she had specifically requested in her response to the hearing invitation. She has not produced any evidence that the interpretation was inadequate. It is clear that an applicant must establish to a very high standard the inadequacy of any interpretation SZJZE v Minister for Immigration [2007] FCA 1653 at [21] and the authorities there referred to; WALN v Minister for Immigration [2006] FCAFC 131 at [29] and the authorities there referred to. This test can only be passed by the bringing of evidence and here none has been brought. In any event a failure of interpretation is not an indicator of bias or apprehended bias. The applicant then read out from a document written in Mandarin or Cantonese which made further allegations of bias without any particulars and claimed that the Tribunal did not judge her application in accordance with the Act and refused her application without any evidence or material. Of course, it is up to the applicant to establish her own claim, the Tribunal is not a contradictor, Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187], SZATG v Minister for Immigration [2004] FCA 1595 per Hely J at [36], Dranichnikov v Minister for Immigration (2003) 197 ALR 389 per Kirby J at [78].
The applicant repeated her claim that the Tribunal had not complied with s.424A by informing her in writing of the reasons it proposed to dismiss her claim and said that she had thereby lost the opportunity to explain relevant issues. In her particular case the Tribunal actually told her of its doubts about her story and gave her an opportunity to deal with the matter in a manner that may well have complied with s.424AA. She chose not to take advantage of any opportunity to rebut those concerns in writing or request an adjournment but informed the Tribunal that she would deal with the matters there and then.
Finally, the applicant made some submissions which appeared to me to be indicating that the Tribunal had not properly considered her claim as one of imputed political opinion. She appeared to be saying that her lack of knowledge of Falun Gong was quite consistent with her claims because other people had told the authorities that she was a leader. In my view a reading of the Tribunal's decision as a whole indicates that the Tribunal did take this into account and it found that it was illogical that she should be so considered or such political opinion should be imputed to her given her lack of knowledge or of practising the Falun Gong philosophy or exercises. In the circumstances I am unable to find any ground upon which the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case.
I dismiss the application. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,500.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
6
1