SZMOQ v Minister for Immigration
[2009] FMCA 1086
•30 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMOQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1086 |
| MIGRATION – Review of RRT decision – applicant a citizen of China who claimed protection on the basis of his adherence to Falun Gong – where grounds for review not particularised and essentially seeking merits review – where other grounds related to earlier Tribunal hearings – whether Tribunal biased. |
| Migration Act 1958 (Cth), ss.91R(3) |
| A165 of 2003 v Minister for Immigration [2002] FCA 877 |
| Applicant: | SZMOQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1492 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 October 2009 |
| Date of Last Submission: | 30 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2009 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
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 1492 of 2009
| SZMOQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 25 March 2006. He applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 10 April 2006. On 15 May 2006 a delegate of the Minister refused to grant a protection visa. On 4 September 2006 the Refugee Review Tribunal affirmed the decision not to grant a protection visa in the absence of the applicant.
On 6 February 2008, by consent, that decision was set aside and the matter was remitted to the Tribunal to be heard and determined according to law. A second Tribunal was constituted. That Tribunal held a hearing, which the applicant attended. On 12 June 2008, the Tribunal confirmed the decision not to grant the applicant a protection visa. The decision of this second Tribunal was also remitted by consent and a third Tribunal was constituted. The applicant appeared before that Tribunal which, on 23 May 2009, also determined to affirm the decision not to grant the applicant a protection visa. That decision was handed down on 25 May 2009.
The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was that he was a practitioner and adherent of Falun Gong. He claimed that he had commenced practising prior to the crackdown in 1999 and that he had not stopped practising thereafter. He said that, in the middle of 2005, he had to stop group exercise with the leader of his group because the neighbourhood committee had issued him with a warning. Thereafter, he continued to practice privately at home but, in mid July 2005, four police officers had searched his home and found books, tapes and clothes as well as some videos. He said that he had been detained at the police station for two nights and not been given food or even water. He was forced to sign a letter, guaranteeing that he would never practice Falun Gong again and threatened that if he was discovered doing so he would be sent to a labour camp.
In his original application, the applicant said that a few days after he was released, he applied for a passport and then, some months thereafter, his leader, Mr See, had asked him if he wished to go to Australia. He said that he did and he placed his passport and affairs in the hands of Mr See, who arranged for a visa for him to travel to this country.
When the applicant appeared before the third Tribunal, he was questioned about his knowledge and practice of Falun Gong both in China and in this country. There was also put to him a number of inconsistencies between his evidence in the various hearings that he had gone to. The Tribunal explained to the applicant the basis of s.91R(3) of the Migration Act1958 (Cth) (the “Act”) and questioned him about his practice of Falun Gong since he had arrived in Australia. The details of the Tribunal’s discussions with the applicant and the concerns that it had raised with him about inconsistencies are found in the claims and evidence section.
In its findings and reasons, which commence [CB 147], the Tribunal indicates that it believes there are good reasons for rejecting the applicant’s evidence regarding his claimed involvement in practising Falun Gong in China. However, it also notes that the applicant’s claimed involvement commenced between 1997 and 1999 and that the applicant had made it clear that his recollection might be faulty and that there might have been some inconsistencies between what he had said previously and to the final Tribunal. The applicant pointed out to the Tribunal that he was under considerable pressure and that he might have problems with his memory as a result:
“However, the applicant was able, for example, to give a very coherent account of his employment history at the hearing before me. It is in relation to matters such as when he started practising Falun Gong, whether he continued practising Falun Gong after he claims he was detained in July 2005 and when he applied for his passport that he has given inconsistent evidence.” [71] [CB 148]
At [72] [CB 148], the Tribunal commences a series of paragraphs in which it sets out the reasons why it did not accept that the applicant was involved in practising Falun Gong in China as he claims. At [72] the Tribunal notes the inconsistency between him telling this Tribunal that he commenced practice in 1997 though he told the second Tribunal he commenced practice only after the ban in 1999. The Tribunal criticises the applicant’s attempt to reconcile these two versions of events and did not accept his claimed inability to recall.
At [73] the Tribunal noted that, before the second Tribunal, the applicant had said that in the 12 months before he had left China, he had practised Falun Gong on Monday and Wednesday evenings but that he had subsequently said, and had repeated at the current hearing, that he had not practised Falun Gong after he claimed he had been arrested in 2005. Again, the Tribunal was unable to accept the applicant’s claimed difficulty in recollection when he had been able to recollect other matters of importance without any difficulty.
At [CB 74] the Tribunal made reference to the inconsistency about the time when the applicant applied for his passport. Before the second Tribunal he said that he had done this three or four months after he had been released but subsequently said, and repeated before the third Tribunal, that he had applied only a few days after he had been released:
“The applicant responded that what he remembered was that the second Tribunal had asked him when he had applied for his passport and his answer had been he had applied for the passport not long after he had been released but that after three or four months he had made a decision to come to Australia. However I do not accept there was any misunderstanding or misinterpretation of what the applicant said as the applicant appears to be suggesting. Not only did he initially say that he applied for his passport three or four months after he had been released but he also confirmed later that it had taken him a long time to consider Mr See’s suggestion that he should go to Australia before he obtained his passport. It was only after the Tribunal put to him that his passport had been issued in August 2005 that the applicant revised his evidence, referring once again to his thinking process being bad because of the mental pressure he was under. Once again I do not accept that the applicant would have difficulty recalling that he had applied for his passport only a few days after he had been released if he was telling the truth about his involvement in Falun Gong and his arrest in July 2005 for practising Falun Gong.” [74] [CB 149]
The Tribunal also expressed doubt about the detention, given that the passport was issued in August 2005, based upon independent country information relating to the issue of passports to people who had been involved in this type of activity.
Finally, at [76] [CB 149] the Tribunal expresses its doubts about the applicant’s knowledge of Falun Gong, considering that his account of the key concepts underpinning the philosophy were confused and muddled. The Tribunal accepted that the applicant had undertaken some practice of Falun Gong whilst in Australia but came to the view that, as it could not be satisfied that he was an adherent in China, his practice in Australia had been undertaken otherwise than for the purpose of strengthening his claim to be a refugee.
On 24 June 2009 the applicant filed an application with this Court seeking review of the decision of the third Tribunal. There were three grounds. The first was:
“The RRT failed to consider my claims that I experienced persecution in China due to my Falun Gong practice.”
It will be clear from my précis of the Tribunal’s decision and the extracted sections that a claim such as this, without any particulars, cannot possibly succeed. Perhaps the applicant meant that the Tribunal failed to accept that he had experienced persecution in China. That would certainly be correct but it would not be correct because the Tribunal had failed to consider his evidence. This was something the Tribunal did in great detail.
The second ground was:
“The RRT failed to give sufficient consideration to my Falun Gong practice in Australia.”
The applicant does not assist the Court with his understanding of what “sufficient consideration” might be. There can be no doubt that the Tribunal did consider the matter and, for the reasons given, rejected it as providing the basis for a “sur place” claim, because of the provisions of s.91R(3) of the Act. I am unable to say that the consideration given by the Tribunal to this aspect of the matter was less than sufficient.
The third ground was:
“I fear that if I return to China I will be persecuted by the Chinese Government.”
It is not for this Court to make any comment upon the genuineness of that statement. Suffice to say, it does not constitute a ground of judicial review.
On 8 October 2009 the applicant filed an affidavit with this Court, seeking to add a new ground.
“At paragraph 54 of the finding of the decisions, a sentence appears as follows: “In evidence which I find highly significant, he stated that he had no moral difficulty with making an untrue undertaking to secure his release from detention and in this context appeared to be unaware of these principles…”
This applied and (sic) incorrect test of my genuine beliefs in Falun Gong and it is submitted that I was by it denied a fair and just hearing as required by section 422B(3) of the Act.”
I explained to the applicant at hearing that this ground, which he accepted had been suggested by a “friend,” related to paragraph 54 of the previous Tribunal’s decision and was therefore not a matter upon which any claim could be made at this hearing, that decision having already been remitted.
Before me today, the applicant said that the RRT was biased. It was not entirely clear what he was saying but he appeared to be taking the matter back to the decision of the original Tribunal not to allow him to appear. To the extent that that decision was wrong, the matter had already been remitted. If he was saying that thereafter the Tribunal had a bias against him because he had obtained a remission, he has not articulated that clearly and he has certainly not pleaded it nor provided the Court with any evidence to prove it.
As Lander J said in A165 of 2003 v Minister for Immigration [2002] FCA 877 at [59];
“Actual bias is not easily proved. It requires proof that the decision-maker was biased and that the decision-maker approached his or her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision-maker, the decision-maker’s pre-determined decision would not vary. It would be very rare indeed for bias to be established only from the Tribunal’s written reasons and the fact that the Tribunal has not accepted the applicant’s claim is not evidence in itself of bias.”
The applicant then addressed me concerning the timing of the issue of the passport. He claimed that the questions were not clearly put to him and he thought that he was being asked when he had decided to come to Australia. He also complained about the interpretation but in that regard he provided no evidence by way of recording or transcript. He just said that the interpreter had spoken in a very low voice and that his left ear was hard of hearing. It seems to me, however, that the question of the inconsistency between what the applicant had originally said about applying for a passport (and it is clear that in his PVA he did say that this was a few days after his detention [CB 28]) was exhaustively dealt with by both the second and the third tribunals) and the applicant’s explanation for the inconsistency was considered and rejected. I do not think that the applicant has established any ground of jurisdictional error in this regard.
The applicant told me that the Tribunal did not understand the feeling in relation to his mood but, once again, I think that the Tribunal did clearly understand his position and noted the concerns he raised about his ability to recollect and his nervousness. The Tribunal gave a reason, based upon available evidence, to reject the applicant’s claimed lack of memory and for this Court to interfere further would be to provide the applicant with impermissible merits review.
It follows from what I have said above that I am unable to find any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it reached the decision in this applicant’s case. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,500.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 6 November 2009
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