SZMTN v Minister for Immigration

[2009] FMCA 109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 109

MIGRATION – Application for review of RRT decision – where applicant does not particularise grounds of application.

Migration Act 1958 (Cth), s.424AA

SZATG v Ministerfor Immigration [2004] FCA 1595
SZGYM v Ministerfor Immigration [2007] FCA 1923
M175 of 2002 v Ministerfor Immigration [2007] FCA 1212
SZJZE v Ministerfor Immigration [2007] FCA 1653
Perera v Ministerfor Immigration [1999] FCA 507

Applicant: SZMTN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2415 of 2008

Judgment of: Raphael FM

Hearing date: 12 February 2009

Date of Last Submission: 12 February 2009

Delivered at: Sydney

Delivered on: 12 February 2009

REPRESENTATION

For the Applicant: In Person

Counsel for the First Respondent: Ms Nolan

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2415 of 2008

SZMTN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 20 December 2007.  On 17 January 2008 she applied to the Department of Immigration & Citizenship for a protection (Class XA) visa.  On 20 March 2008 a delegate of the Minister, who had held an interview with the applicant, declined to grant the protection visa.  On 29 April 2008 the applicant applied for review of that decision by the Refugee Review Tribunal.  The Tribunal held a hearing on 25 June 2008 which the applicant attended, with the aid of an interpreter.  On 30 July 2008 the Tribunal determined to affirm the decision not to grant her a protection visa and handed that decision down on 19 August 2008. 

2. The grounds upon which the applicant claims she was a person to whom Australia owed protection obligations arose out of her adherence to and practice of Falun Gong.  The applicant told how she had been introduced to this philosophy in about 2004 by her mother, who herself had been introduced to it in order to relieve back pain by her friend, Aunty “S”.  At the time the applicant had been introduced to Falun Gong, she had recently resigned from a job with a television network because of her concerns that the Publishing Commission of the China National Council censored news reports with which she was involved. 

3. When the applicant arrived in Australia, she came into contact with other Falun Gong practitioners.  She also told the delegate in her interview with him that between June 2005 and June 2007 she made a number of postings on the internet within China of the Nine Commentaries on the Communist Party, which is a well-known criticism of the ruling party, instigated by persons involved in the practice of Falun Gong.  The applicant said that she had not identified herself on these postings.

4. The Tribunal listened to the tape-recording of the interview with the delegate and then asked its own questions of the applicant.  In particular, it questioned her about the Falun Gong movement and her understanding of its philosophy and practice.  It also asked the applicant questions about her posting of the Nine Commentaries on the Internet. 

5. It would appear from the Tribunal’s reasons that, at an appropriate time, the Tribunal told her that it had information which could be the reason, or part of the reason, for affirming the decision under review and in accordance with s.424AA of the Migration Act 1958 (Cth) (the “Act”), gave her the option of commenting or responding immediately, or requesting to do so at a later time. The Tribunal reports that the applicant agreed to comment at the hearing. The Tribunal then put to her a number of inconsistencies in the evidence that she had given to the Tribunal, as compared with her evidence before the delegate, and some documentary evidence that she had submitted. The Tribunal raised concerns about the fact that the applicant had described Falun Gong as a religion, it considered that the applicant did not have sufficient knowledge of the exercises and that she did not seek to have a basic understanding of what a Falun Gong practitioner was. The matters raised by the Tribunal are adumbrated in the decision document [CB 47‑49].

6. Whilst individually one might have some concern as to whether they could really be indicative of an untruthful person who had no knowledge of the movement, it is not unreasonable to assume that the Tribunal viewed the evidence as a whole, which it is not only entitled to but almost required to do.  The Tribunal sets out at [CB 50‑52] its findings and reasons, which are essentially that the inconsistencies in the applicant's evidence and the indications of a lack of knowledge on her part meant that the Tribunal could not be satisfied, as was required, that she was a genuine Falun Gong practitioner and therefore she was not a person to whom Australia owed protection obligations.  At [CB 52] the Tribunal found:

   “As the applicant was not a Falun Gong practitioner in China and did not post excerpts of the Nine Commentaries or any other articles about Falun Gong on the internet in China, the Tribunal finds that she would not practise or wish to practice Falun Gong if she returned to China, nor would she post or want to post excerpts of the Nine Commentaries or any other articles about Falun Gong on the internet if she returned to China.  Therefore, the Tribunal finds that the applicant does not have a well‑founded fear of Convention related persecution in China.”

7. On 17 September 2008 the applicant filed an application with this Court.  She gave two grounds of the application, the first being:

   “1. The RRT decision is extremely unfair and incomplete.  The Tribunal member failed to take a thorough investigation of my real situation and my mother's dangerous situation. 

   2. I will be in a critically dangerous situation if I am sent back to China as a result of this decision.”

8. To describe a decision which covers some 18 closely-typed pages of some 111 paragraphs as “unfair and incomplete” requires, at the very least, some particularisation.  No particularisation was provided by the applicant in any written submissions, nor did she really go into that matter at the hearing today.  It should be remembered that the applicant had before her the delegate's decision and had had the advantage of an interview with the delegate.  She had written a statement [CB 5] and given much additional information to the delegate.  A reading of the Tribunal's decision would seem to indicate that all these matters were taken into account and, in fact, it was the inconsistency between the information provided by the applicant at various times that caused the Tribunal to doubt her credibility.  I would also be reluctant to accept an assertion that the Tribunal did not undertake a thorough investigation.  It seems to me that, by listening to the tape of the delegate's interview, reading the relevant papers and questioning the applicant, the Tribunal was thorough in the manner in which it carried out its investigations. 

9. The second stated ground is not a ground of review. 

10. The applicant appeared before me today.  She told me that the Tribunal had not told her that she needed to submit more information and hard evidence.  In SZATG v Ministerfor Immigration [2004] FCA 1595, Hely J said at [36]:

    “It was for the appellant to put forward the information and the materials on which he relied in support of his claims.  The RRT is not in the position of a contradictor; rather, the RRT is to consider the appellant's claims and determine if they have been made out:  Abebe v The Commonwealth (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ). The RRT is not required to engage in “an uncritical acceptance of any and all allegations” made by the applicant (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J) and it is not required to accept a claim merely because positive evidence to the contrary is absent.”

11. In reply, the applicant also said that the Tribunal member did not tell her about the procedures before the Tribunal.  Unfortunately, the applicant has not provided me with a transcript and, although she has the tape, she did not bring it with her.  I have to say that, after seven years’ experience hearing these cases, I do not believe I have ever seen one in which the Tribunal has not given some explanation of what occurs at the hearing before the hearing commences and I have seen very many transcripts and listened to very many tapes.  I would imagine that it is part of the Tribunal’s training.  In the absence of any firm evidence that this was not done on this occasion, I am unable to accept the applicant's assertion.

12. The applicant also said that she believed that the Tribunal’s attitude was not very good to her because she was 15 minutes late for the hearing.  She thought that the Tribunal considered that she had not shown proper respect for it.  This would seem to raise an allegation of apprehended bias or actual bias.  Such an allegation must be clearly made and specifically proved.  It is impossible to prove such an allegation without, at the very least, some understanding of what occurred at the hearing because the Tribunal's decision gives no indication of any unsatisfactory altercation between it and the applicant.

13. Finally, the applicant told me that the interpreter could not help her communicate very well with the Judge.  Apparently, the interpreter had told her about halfway through the hearing that she was not feeling well.  Once again I have no evidence of this, other than the applicant's statement.  If she really wished to allege that interpreting difficulties were such as to bring her within the scope of authorities such as SZGYM v Ministerfor Immigration [2007] FCA 1923, M175 of 2002 v Ministerfor Immigration [2007] FCA 1212, SZJZE v Ministerfor Immigration [2007] FCA 1653, Perera v Ministerfor Immigration [1999] FCA 507, she would have to produce some evidence. This could have been from the interpreter herself or from the hearing tape. Once again nothing was produced to me. This Court is only able to deal with matters as they come before it on the day of the hearing. The applicant did not ask for an adjournment to obtain the tape but had she done so, I would have been reluctant to grant it. The applicant has had considerable notice of this hearing.

14. For the reasons given above, I have been unable to find that the Tribunal made a jurisdictional error in the manner in which it came to its conclusions and gave its decision in this case.  The application will be dismissed.  I order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  18 February 2009