SZMNL v Minister for Immigration - [2009] FMCA 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 296

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

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

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZGUW v Minister for Immigration & Citizenship [2008] FCA 91
SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451
SZJYA v Minister for Immigration and Citizenship (No 2) and Another (2008) 102 ALD 598
SZLXI v Minister for Immigration and Citizenship and Another (2008) 103 ALD 589
SZMNI v Minister for Immigration & Anor [2008] FMCA 1494

Applicant:

SZMNL

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1829 of 2008

Judgment of:

Barnes FM

Hearing date:

30 March 2009

Delivered at:

Sydney

Delivered on:

30 March 2009

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1829 of 2008

SZMNL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal signed on 24 May 2008 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 2007 and applied for a protection visa. Accompanying the protection visa application was a statement of the basis for his claims. He claimed to fear persecution on the basis that he was a Falun Gong practitioner in China, claiming that: “One morning, while I was practicing (sic) Falun Gong, many policemen came to the practicing (sic) places to arrest us”, but that he had escaped with the help of a friend. He claimed that in December 2004 several policemen came to his home, that he was arrested and jailed for three months and that he came to Australia in October 2007.
The applicant was invited to attend an interview before a delegate of the first respondent. He did not attend the interview and the application was refused by the delegate.
The applicant sought review by application lodged with the Tribunal on 6 March 2008. He did not make any further claims in connection with his review application. He was invited to and attended a Tribunal hearing in the course of which he provided the Tribunal with documents including a copy of his passport and some Chinese language documents.
In its reasons for decision the Tribunal set out the applicant’s original claims and his evidence at the Tribunal hearing, including setting out in detail that the Tribunal had put to the applicant certain information which it considered would be reason or part of the reason for affirming the decision under review, the applicant’s comments in that respect and the fact that the applicant, when given the opportunity, had indicated that he had nothing further to say and did not seek additional time to comment.
The Tribunal in its findings and reasons rejected the applicant’s claims due to inconsistencies and a perceived lack of knowledge of Falun Gong. The Tribunal concluded that the applicant was not telling the truth about his involvement in Falun Gong and the persecution he claimed to have suffered as a result. The Tribunal referred to the fact that when asked to demonstrate the second set of exercises at the Tribunal hearing, the movements the applicant made bore no relationship to the movements involved in the second set of exercises. The Tribunal considered that if he had been practising Falun Gong since 1998 as claimed, the exercises would have been second nature to him.
The Tribunal referred to independent country information, including evidence from a named expert on Falun Gong, Dr Penny, that all practitioners should be able to demonstrate the five sets of exercises without hesitation. It referred to the applicant’s explanation in this respect, which it recorded as that he had said that he was nervous, that he had a headache and that he was confused. However given that he only raised these problems after he had tried and failed to demonstrate the second set of exercises, the Tribunal did not accept the applicant’s explanation.
The Tribunal also had regard to the fact that, as it put to the applicant, he seemed unclear when asked where the Falun was located in his body. It recorded that he said it was turning in the body but that he appeared vague as to where it was located, suggesting with his hands that it was somewhere in his chest but then saying that it was lower. The Tribunal recorded that the applicant subsequently said that it was turning in the heart, contrary to independent country information put to him that it was located in the lower abdomen.
The Tribunal also referred to the two small cards the applicant had produced, which he said were to promote Falun Gong and had been secretly passed to him. He claimed that if he had not been practising Falun Gong in China he would not have had these cards. The Tribunal found that however the applicant came by those cards it did not accept in light of his lack of knowledge of Falun Gong that he was a genuine Falun Gong practitioner as claimed.
The Tribunal also had regard to the fact that the claims the applicant made at the hearing differed from the claims he made in his original application. Again it raised this matter at the hearing. It referred to the fact that in the statement accompanying his original application the applicant said one morning when he had been practising Falun Gong some policemen had come to the practising place to arrest the practitioners, that many practitioners had been put in cars and sent to prison, but that he had fortunately escaped, but that in December 2004 several policemen had come to his home and he had been arrested. However at the hearing he said he had been arrested at the practising place. Initially the applicant denied that he had said in his statement that he had escaped and claimed that he had been detained and had been released with the help of a friend. He had subsequently said that he had not been arrested at the practising place, but at his home, that the police had heard that he sometimes practised Falun Gong and that they had come to take him. The Tribunal observed that when it noted that this was not what the applicant had told it earlier, the applicant repeated that he was very nervous and confused.
The Tribunal also had regard to different accounts given by the applicant as to how long he was detained. In the course of the hearing he had claimed that he had only been detained for five days, whereas in the statement accompanying his original application he said he had been put in jail for three months. The Tribunal referred to the applicant’s explanation that on one occasion he had been detained for five days and another for two months or so, but had regard to the fact that the applicant had earlier stated that after the occasion on which he claimed he had been detained for five days he had not had further problems with the authorities. The Tribunal did not accept that his explanation that he was nervous or confused would have led him to give such different accounts in his statement and at the hearing with regard to the one occasion in which he had claimed in the statement to have been detained.
In light of these inconsistencies in the applicant’s evidence and his lack of knowledge of Falun Gong, the Tribunal did not accept that he was telling the truth in relation to his claims for refugee status. It did not accept that he was involved in Falun Gong in China, nor that he was persecuted for that reason in China. It did not accept his explanation that inconsistencies were because of his headache and confusion. Since it did not accept that the applicant was telling the truth about his involvement in Falun Gong, it did not accept that there was a real chance that he would have any desire to be involved in Falun Gong if he returns to China and since it did not accept that the applicant was a genuine Falun Gong practitioner, it did not accept that there was a real chance he would be persecuted by being prevented from practising Falun Gong if he returned to China now or in the reasonably foreseeable future.
The Tribunal concluded that since, for the reasons above, it did not accept the applicant’s claims regarding his involvement in Falun Gong, it did not accept that there would be a real chance that he would be persecuted for reasons of any real or perceived involvement in Falun Gong regarded as coming under any Convention ground if he returned to China now or in the reasonably foreseeable future. Hence it affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 16 July 2008. He filed an amended application on 18 March 2009. He has not filed written submissions, but was given the opportunity to make submissions in the hearing today.
It is convenient to deal first with his oral submissions, which for the first time raised in these proceedings a suggestion about a concern with the interpreting or interpreter at the Tribunal hearing. This is not a matter that was raised either in the original application or in the amended application that was prepared after the original date scheduled for hearing of this matter was adjourned to enable counsel who was to provide advice under the Court’s advice scheme to provide such advice and prepare the amended application.
The applicant told the Court that at the Tribunal hearing he was required to do some exercises in Falun Gong and that due to the interpreter problem he did not hear clearly which sets he should do and that he did two movements. He later clarified that he just heard the interpreter say you do one or two Falun Gong movements and so he did and claimed that the interpreter did not interpret which sets he was to do. He also took issue with the fact that the Tribunal had asked where the Falun was located, indicating that he had said somewhere in his tummy, but perhaps his explanation was not clear enough but at least he pointed to his lower tummy.
Dealing with the latter point first, as set out above the Tribunal recognised that the applicant suggested with his hands that the Falun was somewhere in his chest, but then said that it was lower. The concern referred to in the Tribunal reasons for decision was the lack of clarity when the applicant was asked where the Falun was, not only that he appeared vague as to where it was located, but also that he subsequently said it was turning in the heart when independent information suggested that it was located in the lower abdomen. The complainant that the applicant now raises in relation to the Tribunal’s approach in the hearing in relation to the issue of where the Falun was located in his body is not such as to either establish jurisdictional error or as to raise any concern about the conduct of the Tribunal hearing.
In relation to the other issues raised by the applicant, there is no transcript of the Tribunal hearing before the Court. The applicant attended a directions hearing on 7 August 2008 with the assistance of a Mandarin interpreter and consented to orders including filing and serving any transcript of the Tribunal hearing on which it was proposed to rely on or before 20 September 2008.
The applicant did not seek an adjournment of this hearing, but if his concern were to be taken as an application for an adjournment, what he said today is not such as to establish that it is in the interests of the parties or the administration of justice that there be such an adjournment.
In particular I note the lack of clarity in the applicant’s contention as to whether there was a difficulty with the interpreter or just some confusion on his part and that, according to the Tribunal account of what occurred in the Tribunal hearing and its findings and reasons, the applicant raised with it his confusion as well as his claim about nervousness. The Tribunal considered this, but did not accept that it was an explanation for his inability to demonstrate the second set of exercises. I also note that the Tribunal’s account of the Tribunal hearing is that it not only asked the applicant to demonstrate the second set of exercises, but recorded that he named that exercise correctly, although the movements he made bore no relationship to the movements involved in the second set of exercises. Moreover it then put to the applicant that the movements he had performed bore no relationship to the movements involved in the second set of exercises, at which time the applicant claimed that he had a headache and that he was nervous.
In those circumstances, the contentions that the applicant now makes do not establish that the Tribunal failed to accord the applicant the requisite opportunity of a hearing under s.425 and do not establish that there was any difficulty with the interpreter or interpretation such that the opportunity accorded was not a meaningful opportunity. Nor in this particular case, are these contentions such as to warrant any adjournment to enable the applicant (had he sought to do so) to file a transcript of the Tribunal hearing including a translation of the Mandarin used in the Tribunal hearing. I do not consider that the issue that he raises is such that the court of its own volition should afford the applicant a further opportunity to put evidence before the court. These claims do not establish jurisdictional error.
Turning then to the grounds in the amended application. The first ground in the amended application is that: “The Tribunal failed to deal with an indice of the Applicant’s claim.” The first particular is that: “The Applicant claimed to have practised Falun Gong in Australia since his arrival in October 2007, which gave rise to a potential sur place claim.”
The applicant arrived in Australia in October 2007 and applied for a protection visa on 4 December 2007. In his protection visa application he made no claim about his activities in Australia. Nor did he make any such claim in connection with this application for review to the Tribunal. The only evidence before the Court that might be said to raise the issue of practice of Falun Gong in Australia is the Tribunal’s account of what occurred in the Tribunal hearing. After describing the applicant’s claim about what occurred in China, including his claim that he had not had problems with the authorities after his arrest in 2004, the Tribunal recorded the following: “The applicant said that he was practising Falun Gong in Australia. He said that he practised on some evenings in a small park in Campsie. He said that he did not go there every day.” The Tribunal then went on to discuss with the applicant issues about the principles of Falun Gong. There is no evidence that his practice of Falun Gong in Australia or any other aspect of his activities in Australia were discussed at any other stage in the hearing or thereafter.
In its findings and reasons the Tribunal found generally that there were good reasons for concluding that the applicant was not telling the truth about his involvement in Falun Gong. The Tribunal did not accept that he was telling the truth in relation to his claims for refugee status. It is the case that the Tribunal then went on not to accept that he was involved in Falun Gong in China nor that he was persecuted for that reason in China and did not refer specifically to Australia in that part of its findings. However the Tribunal then made general findings that since it did not accept that the applicant was telling the truth about his involvement in Falun Gong, it did not accept that there was a real chance that he would have any desire to be involved in Falun Gong if he returned to China and also that since it did not accept that the applicant was a genuine Falun Gong practitioner it did not accept there was a real chance he would be persecuted by being prevented from practising Falun Gong if he returned to China.
These findings represent a comprehensive rejection of the entirety of the applicant’s claims to fear persecution. Such comprehensive rejection may be taken to include any sur place claim that the applicant made. Having rejected the entirety of the applicant’s claims, including the truth of his claimed involvement in Falun Gong and whether he was a genuine Falun Gong practitioner by reason of inconsistencies in his evidence and lack of knowledge of Falun Gong at the hearing the Tribunal dealt, in so far as necessary, with all of the applicant’s claims including any sur place claim (if there was in fact a claim made on the basis of his activities in Australia).
However the evidence before the Court is in fact not such as to amount to a claim that the applicant feared persecution on any basis other than his practice of Falun Gong in China. There is no evidence to suggest that the applicant claimed that his occasional practice of Falun Gong in Australia gave rise to any profile in China and the Tribunal in those circumstances was not required to speculate whether that might be the case. As stated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1 (at [60]) the Tribunal is not obliged to deal with claims that are not articulated and which do not clearly arise from the materials before it.
The second particular to ground one is that the Tribunal made no finding as to whether Falun Gong practice in Australia occurred and “no findings about the potential application of section 91(R) (sic) of the Migration Act (Cth) 1958 … and no findings about whether or not, if it did happen, it gave rise to a real chance of persecution.”
The reference to “section 91(R)” in the amended application is presumably intended to be a reference to s.91R(3) of the Migration Act 1958 (Cth) and the requirements that in determining whether a person has a well-founded fear of being persecuted the decision-maker is to disregard any conduct engaged in by the person in Australia, unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. The operation of s.91R(3) has given rise to a large body of authority, in particular the decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451. However, this is not a case in which it has been established that the Tribunal failed to comply with s.91R(3) by taking into account conduct in Australia to determine whether an applicant had a well-founded fear of persecution. As the first respondent submitted, as the Tribunal did not accept the applicant was telling the truth in relation to his involvement in Falun Gong and did not accept that he was a genuine Falun Gong practitioner or his claims regarding his involvement in Falun Gong, that constituted a rejection of all his claims to practise Falun Gong, such that there was no finding of conduct which the Tribunal could consider whether to disregard pursuant to s.91R(3) of the Act. It has not been established that the Tribunal did have regard to conduct in Australia in assessing the applicant’s claims.
The concluding part of the second particular might be seen as going beyond s.91R(3) in reiterating a claim that the Tribunal failed to have regard to a claim made by the applicant. That issue has been discussed above. The Tribunal considered all of the applicant’s claims in relation to involvement in Falun Gong and to be a Falun Gong practitioner but did not accept that he was telling the truth about past persecution or more generally about his involvement in Falun Gong. Ground one is not made.

Ground two of the amended application is that: “The Tribunal failed to comply with s.424A or s.424AA of the Act in failing to put to the Applicant information that would be part of the reason for affirming the decision under review.”
In this case it appears from the material before the Court that the Tribunal did not purport to rely on s.424A of the Act, but did purport to rely on s.424AA during the hearing. It set out at some length that it indicated to the applicant it was going to give him information it considered would be the reason or part of the reason for affirming the decision under review. On the basis of the Tribunal’s account of what occurred in the Tribunal hearing, it appears that it met the requirements of s.424AA which arise where the Tribunal seeks to utilise the procedure in s.424AA.
The applicant does not take issue with the Tribunal’s compliance with those procedures. Rather, the first particular is that: “The Tribunal failed to put to the Applicant the view of Dr Benjamin Penny, who said in a talk to the RRT, on 29 August 2003, that “all practitioners should be able to demonstrate the view (sic) sets of exercises without hesitation”, or the source of that view.” There is a typographical error in this particular. It should refer to demonstrating the “five” sets of exercises. Associated with this contention is the next particular that: “that information (Dr Penny’s view, and the fact that it was Dr Perry’s (sic) view) formed part of the reason for the decision under review.”
The solicitor for the first respondent suggested first that on the Tribunal’s account of what occurred at the hearing, the Tribunal not only recorded that it put to the applicant that if he had been practising Falun Gong since 1998 as he claimed those exercises would have been second nature to him, but also that because in its decision it referred in brackets to the evidence of Dr Penny, the Court could infer that the Tribunal had put to the applicant that information and also the source of that information.
I note that in this Tribunal decision the Tribunal decision did not, as is sometimes the case, contain a separate heading under which it outlined independent country information. Rather, in describing the hearing at this and another place where it referred to the location of the Falun, it referred in brackets to the source of country information which was the basis of information that the Tribunal put to the applicant. I am not persuaded that the fact that the source of the information is referred to in brackets is such that I should necessarily infer that the Tribunal put to the applicant the source of the country information referred to in the brackets. However I accept the alternative submission that information of the nature of the information from Dr Penny relied on by the Tribunal is of the nature of information that is within the exception to s.424A in ss.3(a), as what is generally referred to as independent country information, being not specifically about the applicant or another person and just about a class of persons of which the applicant or other person is a member. I note that in SZMNI v Minister for Immigration & Anor [2008] FMCA 1494 the Federal Magistrates Court referred specifically to this information from Dr Penny, finding that it was independent country information.
Section.424AA provides an alternative method for the Tribunal to put to an applicant certain information in the course of a hearing. Information in s.424AA has the same meaning as in s.424A (see SZLXI v Minister for Immigration and Citizenship and Another (2008) 103 ALD 589). Cowdroy J suggested in that case (at [27] that:
However, as s 424AA is merely an alternative form of notification available to the Tribunal (see s 424A(2A)), the Court considers that the exclusions contained in s 424A(3) apply with equal force to s 424AA.
Moreover as Gilmour J pointed out in SZLWI v Minister for Immigration and Citizenship and Another (2008) 171 FCR 134 (at [19]):
Section 424AA does not impose any obligation on the Tribunal. It enables the Tribunal, if it chooses to do so, to give oral particulars of adverse information to an applicant at a hearing that may otherwise need to be given in writing under s 424A(1).
Hence, if there is a failure to comply with the requirements of s.424AA(b), the consequence is not jurisdictional error, but rather that the exception in s.424A(2)(a) is not engaged and the Tribunal is obliged to comply with s.424A. If the Tribunal is obliged to comply with s.424A then the exceptions in s.424A(3) are applicable.
Hence, on either basis, in this instance the information from Dr Penny and the fact that it was Dr Penny’s view is information within the exception in s.424A(3)(a). The failure to put particulars of the information or the source of that information to the applicant either in the hearing or in writing does not constitute a failure to comply with the procedural obligations under s.424A of the Migration Act or a jurisdictional error.
The next particular to ground two is that: “The Tribunal failed to put to the Applicant, either in writing or at the hearing, the basis for its assertions that the movement he made in performing the “second set of exercises … bore no relationship to the movements involved in the second set of exercises” and did not provide the source document for the assertion” and yet “that information formed part of the reason for the Tribunal’s decision.”
In its outline of what occurred in the hearing, the Tribunal referred to the fact that it put this information to the applicant and in brackets referred to a chapter from a document entitled “China Falun Gong”, downloaded from the internet. Again while I am not prepared to infer that the fact that this material is referred to in brackets means that it must have been put to the applicant as the source of or the basis for the Tribunal’s assertions, as discussed in relation to the information from Dr Penny, such information comes within the exception in s.424A(3)(a) of the Migration Act and if the Tribunal failed to put the source of that information to the applicant that would not constitute a breach of s.424A(1).
The final aspect of this ground claims that the Tribunal failed to put to the applicant the basis for its assertions that the Falun was located in the lower abdomen and not heart. Again the Tribunal referred (in brackets) in its account of the hearing to a document downloaded from the internet. Again such information is independent country information within s.424A(3)(a) of the Act. The Tribunal has not been shown to have failed to comply either with s.424AA or with s.424A of the Migration Act.
It is perhaps relevant to note that insofar as ground two takes issue with the underlying information, as distinct from the source of the information, contrary to the contentions of the applicant it appears that the Tribunal raised quite clearly with him the particulars of the information of concern. I note in particular that after the Tribunal explained that it was to put to the applicant information that would be the reason or part of the reason for affirming the decision under review, it expressed the view that if the applicant had been practising Falun Gong since 1998 the exercises would have been second nature to him. The Tribunal considered his explanation and also put to him that he had seemed unclear when asked where the Falun was located in his body. Thus the Tribunal raised with the applicant particulars of the information on which it assessed his responses that formed the reason or part of the reason for affirming the decision under review whether or not this was required under s.424A.
Ground three of the amended application repeats some of the particulars to ground two and says that “there was a breach of section 425 in failing to put the source material to the Application in order to give him an opportunity to respond.”
As indicated above, there is no obligation under s.424AA or s.424A for a Tribunal to put to an applicant the source of independent country information which it relies on or which forms the basis for its assertions in relation to concerns it raises about evidence provided by an applicant. The application repeats the particulars in relation to the views of Dr Penny and the basis for the assertion about the movements bearing no relationship to the movements involved in the second set of exercises and claims that that information formed part of the reason for the Tribunal’s decision.
Under s.425 of the Migration Act the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The scope of that section has been considered by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and in a number of subsequent decisions of the Federal Court.
It has not been established that there was a failure to comply with s.425 of the Act. On the contrary, as indicated above, in the course of the hearing the Tribunal raised issues of concern, including the issue of the applicant’s inability to demonstrate the movements without hesitation as it would have expected and the fact that the demonstration of the second set of exercises he provided bore no relation to the movements involved in the second set of exercises. It also raised the issue of the location of the Falun. In this way it raised with the applicant issues that it considered dispositive. I am not persuaded that it is necessary for the purposes of s.425 that the Tribunal put to the applicant the source of its concern, in so far as the source of the concern is based on independent country information, provided that it raises clearly with the applicant the nature of the its concern and the relevance of that concern. The Tribunal did so in this case. It is apparent that the applicant was put on notice by the Tribunal as to the matters in issue. More generally as to the obligation under s.425 and the Tribunal’s obligation to inform of possible adverse findings see SZJYA v Minister for Immigration and Citizenship (No 2) and Another (2008) 102 ALD 598 and SZGUW v Minister for Immigration & Citizenship [2008] FCA 91).
I note further that there is no transcript of the Tribunal hearing before the Court and, as set out above, the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. Those reasons do not support the applicant’s contentions.
Ground three is not made out.
As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the material before me to suggest that it is appropriate to depart from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Associate:

Date: 7 April 2009