SZMSE v Minister for Immigration

[2009] FMCA 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSE v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 484

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

Migration Act 1958 (Cth), ss.91R, 422B

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZCOS v Minister for Immigration & Citizenship [2008] FCA 570

Applicant: SZMSE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2285 of 2008

Judgment of: Barnes FM

Hearing date: 6 May 2009

Delivered at: Sydney

Delivered on: 6 May 2009

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2285 of 2008

SZMSE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 16 July 2008 and handed down on 7 August 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, a citizen of People's Republic of China, arrived in Australia in December 2007 and applied for a protection visa in January 2008. 

2. In connection with his application the applicant provided a written statement claiming to fear persecution in China for reasons of his involvement in Falun Gong.  He claimed to have commenced practising Falun Gong in 2005, to have introduced his employer to Falun Gong and to have been arrested in 2007, mistreated and required to pay a fine.  He claimed that he was beaten by the authorities and that if he returned to China he would be detained and persecuted as the practice of Falun Gong was banned.  He claimed he had been able to come to Australia on a temporary business visa using his own passport after paying a bribe to have his police record destroyed.  He attended a Departmental interview at which he discussed his claimed practice of Falun Gong in China and Australia.  The application was refused by a delegate of the first respondent who found that the applicant had gained his knowledge of Falun Gong in Australia. 

3. The applicant sought review by the Tribunal.  He attended a Tribunal hearing.  In its reasons for decision the Tribunal summarised the claims made by the applicant in connection with his protection visa application, the claims that he had made in the interview conducted by the delegate of the first respondent and the evidence given at the Tribunal hearing, including the applicant's claims in relation to his practice of Falun Gong and participation in protest activities in Sydney.  It referred to photographs he had provided to the Tribunal in relation to these activities.  It described concerns about his claims it raised with the applicant at the hearing. 

4. The Tribunal summarised the applicant's claim as a claim to fear persecution from Chinese authorities because he was a Falun Gong practitioner and wished to continue to practise Falun Gong, his claim that he was arrested and mistreated in September 2007 after being discovered practising Falun Gong exercises in his room and that he was released from detention and left China without difficulty in December 2000 but that if he returned and practiced Falun Gong he would face persecution from the authorities.

5. The Tribunal did not accept that the applicant practised Falun Gong in China or the claims that flowed from that claim, in particular that he became a practitioner in 2005 and continued to practise until September 2007.  It made this finding notwithstanding that it accepted that the applicant had a reasonably good knowledge of Falun Gong practice and belief, on the basis that it found his evidence (discussed in more detail in the account of the hearing) to be rehearsed and contrived.  It did not accept his claims that he taught his employer Falun Gong exercises and that they exercised together for a year, that the police found out and arrested, questioned and mistreated him because his employer's wife informed on them.  The Tribunal found this explanation for their alleged discovery to be implausible. 

6. The Tribunal did not accept that the applicant was released from detention after payment of a fine and found his claim that a school friend happened to have an uncle in a police station who helped him have his records destroyed so he could leave China without difficulty to be an implausible and contrived explanation for the ease of his departure from China.  It did not accept this claim or that he had to pay a bribe.  It considered he had fabricated this evidence to explain how he was able to leave China without being questioned or restricted from leaving.  The Tribunal stated generally that it found the applicant’s account of events to be implausible, rehearsed and contrived and did not find him to be a witness of truth. 

7. The Tribunal took into account the applicant's evidence at the hearing that he had obtained a Chinese passport in February 2007 because he intended travelling to the United Kingdom to find work because he did not have a good job in China and his evidence that he did not pursue an application for a visa to the United Kingdom because the cost of arrangements was too high.  The Tribunal considered that this indicated that the applicant had an intention to leave China and work elsewhere to improve his financial circumstances.  It considered that he arranged to travel to Australia for the purposes of obtaining a better job in Australia and improving his family's financial circumstances.  It referred to his evidence about obtaining a temporary business visa on the basis of false information and that he was advised after his arrival in Australia that he had to apply for a protection visa so he could obtain permission to work.  On all the evidence the Tribunal considered that the applicant had fabricated his claims of Falun Gong practice in China to support his application for a protection visa.  As it did not consider that the applicant was a Falun Gong practitioner or had experienced the events he claimed in China, it did not accept he faced a real chance of persecution for a Convention reason should he return to China.

8. The Tribunal then addressed the applicant's evidence in relation to his claims that he had practised Falun Gong at home and in public since he arrived in Australia, that he had been involved in Falun Gong street demonstrations and protest activities and the photographs he provided.  The Tribunal considered the applicant was not a Falun Gong practitioner in China and that he came to Australia for economic reasons.  It accepted that he had taken part in some public activities in Australia protesting the treatment of Falun Gong practitioners in China and had attended some lessons and public practice sessions.  However it considered that he had engaged in this conduct for the purpose of strengthening his claims for refugee status and for no other reason and therefore disregarded this conduct in determining his refugee claims.  The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations.

9. The applicant sought review of the Tribunal decision by application filed in this Court on 3 September 2008.  The application contains one generally expressed ground which to a large extent takes issue with the merits of the Tribunal decision.  It claims that the applicant started practising Falun Gong because of his backache and a bulging disc and was being taught by his uncle in 2005.  It claims that in September 2007 he was arrested, questioned, beaten and woke up in a hospital and that he paid $10,000 and signed a guarantee that he would give up the practice of Falun Gong and was then released.  It also claims that after the applicant arrived in Australia he continued his activities involving Falun Gong and joined a demonstration against persecution of Falun Gong practitioners by the Chinese authorities.  He claimed he would be persecuted if he returned to China. 

10. Although this is expressed as an application for review of the Tribunal decision, the ground continues “I can't understand why delegate of the Immigration Department didn't accept the facts I experienced.  I think the delegate of the Immigration Department has bias towards me in deciding his decision.  Therefore I believe that his decision is not fair”. 

11. As indicated, this is an application for review of the Tribunal decision and I take this ground to relate to the Tribunal.  Apart from merits review which is not available in this Court, in essence this ground amounts to a contention of actual or apprehended bias.  It is well established that it is a rare and exceptional case in which actual bias would be established on the Tribunal reasons for decision alone (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). There is no transcript of the Tribunal hearing before the Court and, indeed, the applicant does not take issue with the conduct of the hearing but rather with the Tribunal conclusions. The material before the Court (including the Tribunal’s account of the applicant’s evidence and issues it raised with him at the hearing) is not such as to establish that the Tribunal was biased or indeed that an apprehension of bias would be established from the perspective of the appropriately informed lay observer.

12. More generally, insofar as the applicant contends that the decision was not fair, I note the operation of s.422B of the Migration Act. There is no suggestion or any indication that the Tribunal failed to comply with the procedures under the Migration Act 1958 (Cth).

13. Counsel for the first respondent addressed the issue of s.91R(3) in light of the fact that claims were made in relation to the applicant's conduct in Australia. It is apparent from the Tribunal reasons for decision that the Tribunal disregarded the applicant's Falun Gong practice and activities in Australia pursuant to s.91R(3) of the Migration Act. No jurisdictional error is apparent in that respect.

14. More generally Tribunal findings in relation to credibility are a matter for the Tribunal par excellence.  Its reasons were open to it on the material before it for the reasons which it gave (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]).

15. Insofar as it might be said that the Tribunal had regard to the applicant's demeanour in coming to a decision about his credit, it has been said that it is open to a Tribunal to do so (see SZCOS v Minister for Immigration & Citizenship [2008] FCA 570). In any event the Tribunal gave reasons for its findings, relating not only to the rehearsed and contrived nature of the applicant’s evidence but also to the implausibility of explanations which it did not accept, the fact that it found certain explanations to be fabricated and the evidence that the applicant himself gave in relation to the circumstances in which and reasons for which he obtained a passport, his intention to travel to the United Kingdom and what occurred after he came to Australia. The fact that the Tribunal did not accept the applicant's claims does not establish bias or other jurisdictional error and I note that there is no jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]). As no jurisdictional error has been established the application must be dismissed.

    RECORDED  :  NOT TRANSCRIBED

16. The applicant has been unsuccessful and there is nothing in the circumstances to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  25 May 2009