SZMNJ v Minister for Immigration

[2008] FMCA 1666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1666

MIGRATION – Review of decision of RRT – where applicant claimed persecution as an adherent of Falun Gong – where Tribunal sent s.424A letter – where applicant failed to provide transcript of Tribunal hearing – whether Tribunal exhibited apprehended bias in its questioning – whether claims credible.

Migration Act 1958, s.424A

SZBEL v Minister for Immigration [2006] HCA 63

Applicant: SZMNJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1820 of 2008

Judgment of: Raphael FM

Hearing date: 1 December 2008

Date of Last Submission: 1 December 2008

Delivered at: Sydney

Delivered on: 1 December 2008

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1820 of 2008

SZMNJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 14 April 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 6 July 2007 a delegate of the Minister refused to grant a protection visa. On 7 August 2007 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended on 9 October 2007 and on 2 April 2008 the Tribunal wrote to the applicant a letter pursuant to the provisions of s.424A of the Migration Act 1958 (the “Act”) inviting him to comment on or respond to information that the Tribunal considered would, subject to any comments or responses, be the reason or part of the reason for affirming the decision under review. The applicant responded to that letter on 8 May 2008, although the letter was dated 28 April 2008. The letter he sent included two additional pieces of information being translations of notices allegedly issued by the PSB. On 27 May 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 17 June 2008.

2. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was religion/political/imputed political opinion arising out of his adherence to the Falun Gong movement. The applicant claimed that he commenced practice of Falun Gong in about 1998. In June 1999 he claimed that he was detained, having been asked to attend the police station and questioned about his practice. Whilst at the police station he was required to watch official television programs and films about Falun Gong which depicted it as an evil cult. He was not prepared to watch the programs quietly and protested. The police then interviewed him and did not allow him to sleep. He was asked the names of other practitioners. He did not disclose these and he was deprived of sleep for approximately three days.

3. He was eventually released after being beaten on the arm and hit with a knife but they did not allow him any medical treatment.  In order to obtain his release he wrote down all the crimes of Falun Gong and promised not to exercise in the future.  After his release he had to have re-education in the factory at which he worked but he said that he was not allowed to actually do any work after his arrest. 

4. He left his home town and moved to Shenzhen where he was working for a firm that did business with Malaysia. There seems to be some confusion as to whether he was actually working for a firm or whether he owned the firm himself, in any event he obtained a passport and a visa for Malaysia but he did not visit that country. He later arranged for a tourist visa into Australia, paid a substantial amount of money to a travel agent and came to this country in April 2007. He intended to look around the country for three months but decided that he should apply for a protection visa. The applicant went to work in Brisbane as a Chinese masseur, a technique that he was expert in having been at a Chinese medical college.

5. The Tribunal questioned the applicant about a number of matters including his knowledge of Falun Gong practices. The applicant was asked what the "Fa" was. The applicant gave responses [CB 92] which indicated that he thought it ought to be in the lower side of the belly, having previously said that it meant "sky eye". He was asked again and gave a different response that it was connected with the wheel turning below the universe. The applicant was asked some other questions about Master Li which he appeared to answer correctly and then was asked about the exercises that he undertook. The Tribunal asked him to demonstrate the third exercise but the applicant told it that because of the length of time since he had been practising in public he had forgotten that exercise and asked to demonstrate the first exercise.

6. The s.424A letter sent by the Tribunal pointed out to the applicant that the Tribunal had concerns about his knowledge of Falun Gong activities and practice and referred to the conversation about the "Fa" suggesting that a genuine practitioner would know what was being spoken of. The letter referred to the failure to be able to demonstrate the third exercise and then mentioned that the applicant had not appeared to recognise the significance of the date of July 1999 in relation to the practice of Falun Gong in the PRC. The Tribunal then referred to some inconsistencies in the applicant's evidence concerning the dates upon which he was detained and then indicated that evidence of his detention seemed to be inconsistent with the fact that he had managed to move to Shenzhen, not have any problems with the PSB since 1999 and remained in the same address and been in secure employment which would indicate that he was not a person of interest to the authorities.

7. The Tribunal made reference to other matters including the applicant's lack of practice of Falun Gong since he had arrived in Australia and the independent country information concerning the ability of persons who were of interest to the PSB and their ability to leave the country without difficulty. The applicant responded to this letter [CB 67] and dealt with the Tribunal's concerns about his knowledge of "Fa" and the dates upon which the government had cracked down on Falun Gong. It made reference to the exercises and indicated that he had gone to Shenzhen with a false name and had never told anybody that he had been a Falun Gong practitioner. The applicant produced the two PSB documents that I have previously referred to.

8. In its findings and reasons which commence at [CB 101] the Tribunal came to the view that it could not be satisfied that the applicant was a genuine Falun Gong practitioner because it could not find that he was a truthful and credible witness. The Tribunal noted the inconsistencies in his evidence and his rudimentary knowledge of the theory and practice of Falun Gong. The matters discussed earlier in these reasons were raised again. The Tribunal dealt with the documents in the following way at [CB 104 - 108]:

   “[108]  The Tribunal notes the documents provided with the applicant's letter of 8 May 2008 and that they refer to dates of June 2000 which appear to be associated with his detention.  The applicant did not refer to the documents in his letter.  The Tribunal makes no findings in relation to the authenticity of the documents, in relation to the subject matter contained in the documents or in relation to date specified in the documents and has not taken them into consideration as evidence upon which it bases its findings.  The Tribunal does not place weight on the documents as their authenticity is difficult to determine and the Tribunal prefers to place greater weight on the evidence provided by the applicant at the hearing.”

9. The Tribunal reiterated the concerns that it had expressed in the s.424A letter about the applicant's credibility and then noted the claims that were made in the letter of 8 May that had not been made at hearing or in his protection visa application. These are discussed at [CB 105]. The Tribunal did not accept the claims and noted that the applicant had not explained why he had provided information in the letter which was contradictory to the information in his protection visa application and to the evidence he gave at the hearing.

10. Finally the Tribunal noted the evidence given about the passport and concluded from the ability of the applicant to obtain two passports and visas to travel to Malaysia and Australia that the applicant was of no interest to the authorities.  The Tribunal considered that as the applicant was not a genuine practitioner of Falun Gong he would not have been imputed by the Chinese authorities with having any association with that sect and that he would therefore not face arrest or other serious harm at the hands of the Chinese authorities if he returned to the PRC in the reasonably foreseeable future.

11. In the application which was filed with this court on 15 July 2008 the applicant says that the decision was affected by jurisdictional error in that the Tribunal failed to invite him to comment on adverse information, thus breaching s.424A. The information is defined as:

    “The Tribunal doubts the truthfulness of his evidence because the applicant did not indicate why these claims were not made earlier or why they contradicted previous written and oral evidence.  The Tribunal failed to put this information before the applicant and invite the applicant to comment on it.”

12. This ground of application is unsustainable in the light of the decision of the High Court in SZBEL v Minister for Immigration [2006] HCA 63 [47 and 48]. Before me the applicant expressed concern at three of the questions that the Tribunal had asked him. The first related to the explanation of "Fa". The applicant told me that this word had many meanings and that the Tribunal had a specific mind-set about what it meant and did not understand that he was questioning the Tribunal's reference to this word which was why his answers appeared to be a bit contradictory.

13. Unfortunately I do not have a transcript of the Tribunal hearing although I can understand that the real meaning of this word might possibly be understood differently by different people. Unfortunately for the applicant evidence about the meaning of the word and normal understanding of a question relating to it would have to be the subject of expert evidence which is not before me. In any event, there is no doubt that the applicant provided several different explanations, both orally and in writing, and the Tribunal could well have been permitted to conclude that these different explanations might indicate a lack of knowledge.

14. The applicant also complains about the Tribunal's conclusions concerning his knowledge of what happened in July 1999. Again I have no transcript but I do note as the applicant told me, and in his application for a protection visa [CB 27], he says:

    “In 1999 Falun Gong was banned and Master Hongzhi Li was wanted by Chinese government.”

15. So it is possible that he was, as he says, confused by the question because he assumed that the Tribunal had read the document and was aware that he knew when the prohibition on Falun Gong occurred.  It seems to me that even if the Tribunal was mistaken in coming to the conclusions which it did concerning the applicant's knowledge of this date, the mistake it made was one within jurisdiction rather than being a jurisdictional error and a close reading of the Tribunal's decision would indicate that it certainly had some grounds for saying that the applicant's evidence concerning the time of his arrest and the importance of the date was confused if not totally inconsistent.

16. Finally, the applicant told me that the Tribunal did not understand the way he did the exercises. He felt that the Tribunal did not take into account that exercises might be done in different ways and they were not necessarily wrong. To my mind the gravamen of the Tribunal's finding concerning the exercises was that the applicant did not know the third exercise and could only demonstrate the first one. That was what caused it not to be satisfied that he was a genuine practitioner rather than any mistakes that the applicant may have made in the demonstration.

17. Mr Smith, who appeared on behalf of the first respondent, submitted that the applicant's complaints amounted to one of bias or reasonably apprehended bias but submitted that the questions the applicant complained of did not establish pre-judgment, quite the contrary.  They show that the Tribunal was giving the applicant an opportunity to satisfy it that he was a genuine practitioner.  He reminded the court that these were matters taken up with the applicant orally and were made the subject of the 424A letter and that the Tribunal's decision show that it had acted on the applicant's evidence rather than on some pre-formed notion of what he might know as a Falun Gong practitioner.  There is considerable force in the arguments put forward by Mr Smith.

18. The applicant addressed me again and indicated that he did not follow what had been said in court, a situation that I regret. It is always difficult when dealing with persons who are representing themselves to adequately explain the nature of a jurisdictional error, a legal concept that has taxed the resources of the High Court as well as the intermediate appellate courts down to the one hearing this application. In his lengthy submissions the applicant went mostly to the question of his being a person to whom Australia owed protection obligations rather than the manner in which the Tribunal made its decision.  He did say that he thought that the three hour hearing was too short but, with respect to him, it would seem to me from the Tribunal's decision letter that his situation was very thoroughly investigated.

19. In all these circumstances I am unable to see any ground upon which the applicant can claim successfully that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order the applicant pay the First Respondent’s costs which I assess in the sum of $4,250.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: