SZMTY v Minister for Immigration

[2009] FMCA 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTY v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 271

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424AA, 424A, 425, 91R(3)

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZJGV & Ors v Minister for Immigration & Citizenship [2008] 170 FCR 515
SZLQD v Minister for Immigration & Citizenship [2008] FCA 739
SZLXI v Minister for Immigration & Citizenship (2008) 103 ALD 589
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178

Applicant: SZMTY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2468 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 5 February 2009

Delivered at: Sydney

Delivered on: 6 April 2009

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Ms B. Griffin (solicitor)

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 23 September 2008 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2468 of 2008

SZMTY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant is a 53 year old married woman from Tianjin, the People’s Republic of China.  She has two children who remain in China and she has owned a business since 1989.  The applicant claims protection because she was “restrained and threatened” for her Falun Gong practice.

2. The applicant commenced her practice to treat her stress related insomnia in 1998.  This was on the recommendation of a friend.  She says that she stopped her practice in 1999 when the Chinese government began persecuting Falun Gong practitioners.  When the applicant visited Singapore and Malaysia in May 2005, she was shocked by information she saw that showed persecution of Falun Gong practitioners by the Chinese government.  She told her friends this and they asked her to bring back copies when she was next overseas.

3. The applicant brought a book entitled “The Nine Commentaries of the Chinese Communist Party” back to China when she went to Japan on holiday in September 2006.  She gave the book to one of the friends who had asked for them.

4. The applicant claims that on 28 September 2007 the police visited her home and alleged that she had been practicing Falun Gong.  They searched her home and took her to the Public Security Bureau.  She was released with a warning and that she would have to report to the police if called.  The applicant was fearful based on the information she had seen overseas about torture of Falun Gong practitioners and came to Australia with the help of a friend.

5. The applicant arrived in Australia on 14 December 2007 and applied to the Department of Immigration for a Protection (Class XA) visa on 23 January 2008.  A delegate of the Minister for Immigration refused to grant the visa on 21 April 2008 and the applicant was notified of this on the same date.  On 15 May 2008, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 13 August 2008.  It is the Tribunal decision of Mila Foster (reference number 0802989) which is the subject of these proceedings.

6. A Court Book (“CB”) was prepared and filed by the respondents’ solicitors on 21 October 2008 and is marked Exhibit “A”.  This document was read into evidence.

Tribunal decision

1. The delegate for the Minister was not satisfied that Chinese authorities would consider the applicant a threat because she was able to leave China legally in 2005 and 2006 even though she claimed that she sourced material for publication concerning the Falun Gong activities in China.  The delegate was also not satisfied that the applicant would be persecuted if Chinese authorities discovered that she had applied for a protection visa. 

2. On 15 May 2008 the applicant applied to the Tribunal for review of the delegate’s decision.  The Tribunal invited the applicant to attend a hearing on 9 July 2008, where it questioned her on the Falun Gong movement and aspects of her claim.  The Tribunal also invited her comment on inconsistencies in her evidence, its doubts about her explanation for these inconsistencies, her return to China in 2005 and 2006 and her failure to practice Falun Gong in Australia. 

3. The Tribunal identified a number of internal inconsistencies in the applicant’s claims and against independent country information.  It did not accept her explanation for them and concluded that she was not a witness of truth.  The Tribunal therefore did not accept that the applicant had ever practiced Falun Gong in China or Australia, that she had brought Falun Gong material to China from overseas or that she had been visited by the police.  The Tribunal concluded that the applicant did not have a well-founded fear of persecution and affirmed the delegate’s decision under review.

Consideration

Ground one

The RRT decision was affected by jurisdictional error in that the Tribunal failed to give me sufficient time to respond to information relevant to my application.  I was asked to respond to adverse information during the hearing.  Sometimes I had difficulty understanding the Tribunal’s question and therefore could not give a complete response.  If the Tribunal give me more time to respond to the information after the hearing, I believe I could have been able to provide my response in a better way.

1. Ms Griffin, for the respondents, submits that the Tribunal’s obligation to accord the applicant procedural fairness was limited to compliance with the requirements of Pt 7, Div 4 of the Migration Act 1958 (Cth) (“the Act”) as specified in s.422B. She submits that the applicant appears to be asserting that the Tribunal breached either s.424A(2)(a), s.424AA(b)(iii) or s.424AA(b)(iv) of the Act (although this was not specifically alleged). These sections only operate if a Tribunal has information before it that, in its terms, constitute a rejection, denial or undermining of the applicant’s claim.

2. These sections are not activated by internal inconsistencies in an applicant’s claim or by a Tribunal’s doubts about those claims: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]; SZLXI v Minister for Immigration & Citizenship (2008) 103 ALD 589 at [25]-[28]. These sections do not apply to independent country information: VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [13]-[15]; SZLQD v Minister for Immigration & Citizenship [2008] FCA 739 at [12]. Ms Griffin submits that there was no information before the Tribunal that could trigger either s.424A or s.424AA.

3. The Tribunal decision indicates that the member informed the applicant, pursuant to s.424AA(b)(iii) of the Act, that she could respond to the adverse information it put to her at a later time. The applicant elected to respond immediately.

   The Tribunal told the applicant that it had information which could lead the Tribunal to find that she had not been truthful, find that she was not a Falun Gong practitioner and reject her claims about her treatment in China and thus could be the reason or part of the reason for affirming the decision under review.  The Tribunal told the applicant that she had the option of either commenting or responding to the information immediately or requesting an opportunity to do so at a later time.  The applicant stated that she wished to respond immediately at the hearing. (CB 77)

4. Ms Griffin submits that the issues relied upon by the Tribunal were put to the applicant in compliance with s.425 and the SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [47].

5. Ms Griffin submits that there is no evidence before the Court to support the applicant’s claim of experiencing occasional difficulties in understanding the Tribunal’s questions.  Insofar as this claim relates to the standard of interpretation at a Tribunal hearing, a perfect standard is not required: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at [29] and [45].

6. When the applicant was initially invited to make oral submissions, she declined and said she would rely upon her application.  No recent submissions were filed to advance her arguments.  When invited to reply to Ms Griffin’s submissions, the applicant made a number of general statements concerning the import of publications addressing the treatment of Falun Gong practitioners in China.  She also referred to the police visit to her home.  The applicant did not address the issues contained in ground one.

7. It is apparent that this self-represented applicant has no real understanding of the grounds she has pleaded and is relying on material prepared for her by an unidentified third party. I am satisfied that the Tribunal in its decision reproduced at [12] above clearly indicated to the applicant that it was not satisfied with the information she provided gave her an opportunity to review her claims and respond after that hearing. The applicant declined that invitation and responded immediately. This action is contrary to the claim set out in ground one. The applicant did not place a transcript of the Tribunal hearing before this Court nor has there been any request for the hearing tapes. On the evidence before the Court, I am satisfied that the Tribunal complied with the requirements of Pt 7, Div 4 of the Act and that ground one should be rejected.

Ground two

The RRT decision was affected by jurisdictional error in that the Tribunal failed to consider my claims about my practice in Australia.  In Sydney I attend public practice occasionally, and I believe my practice may have come to the attention of the Chinese government.

1. Ms Griffin submits that the Tribunal considered the applicant’s claim to have practiced Falun Gong in Australia and rejected it.  The Tribunal considered the applicant to be an untruthful witness and as such found that she was not a Falun Gong practitioner in China at any time.  As the Tribunal did not accept her to have been a Falun Gong practitioner in China, it similarly did not accept that she had engaged in any Falun Gong activities in Australia.

2. Ms Griffin submits that although there is no specific claim of a breach of s.91R(3) of the Act, ground two as pleaded does suggest such a claim. Ms Griffin submits that s.91R(3) does not apply to this matter as the Tribunal found that the asserted conduct in Australia did not occur, see SZJGV & Ors v Minister for Immigration & Citizenship [2008] 170 FCR 515 at [22]:

   Again the applicant made no specific submissions in reply to the issues raised in ground two.  The applicant made a general statement to the effect that if she was not a Falun Gong practitioner then there would be no requirement for her to seek protection status in Australia.  The main evidence of the applicant in this respect is that she had very little free time in Australia to practice Falun Gong.  No other evidence was produced to the delegate or the Tribunal documenting her participation in the practice of Falun Gong in Australia.  The contents of this claim are not reflected in the material before the Court.  I am satisfied that this claim cannot be sustained and should be rejected.

3. Again the applicant made no specific submissions in reply to the issues raised in ground two.  She made a general statement to the effect that if she was not a Falun Gong practitioner, she would not need to seek protection in Australia.  Her main evidence in this respect was that she had very little free time in Australia to practice.  The applicant did not produce any other evidence to the delegate or the Tribunal documenting her practice of Falun Gong in Australia.  This claim is not supported in the material before the Court.  I am satisfied that the second ground cannot be sustained and should be rejected.

Conclusion

1. As the applicant in these proceedings is a self-represented litigant, a review of the Court Book, and in particular the Tribunal decision, does not indicate any other issue that could be identified as a jurisdictional error on the part of the Tribunal.  In the circumstances, the application should be dismissed with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date:  6 April 2009