SZMWN v Minister for Immigration

[2009] FMCA 1088

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1088

MIGRATION – Review of decision of RRT – where applicant claims lack of procedural fairness because the Tribunal failed to provide him with a copy of his sister’s PVA.

PRACTICE & PROCEDURE – Where applicant is advised to present all his arguments initially and fails to do so – where applicant holds submissions in reserve until after respondent has replied – whether to permit submissions to be made.

Migration Act 1958, ss.91R(3), 424A

VEAL v Minister for Immigration (2005) 225 CLR 88
SZGZQ v Minister for Immigration [2007] FCA 62
Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
SZIFB v Minister for Immigration [2007] FCA 1727
NAST v Minister for Immigration [2004] FCA 86
SZHVL v Minister for Immigration [2008] FCA 356
Minister for Immigration v MZXPA [2008] FCA 185
WAKS v Minister for Immigration [2006] FCAFC 32

Applicant: SZMWN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1380 of 2009

Judgment of: Raphael FM

Hearing date: 21 October 2009

Date of Last Submission: 21 October 2009

Delivered at: Sydney

Delivered on: 21 October 2009

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Ms S Sirtes

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1380 of 2009

SZMWN

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 14 March 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 25 March 2008. On 11 June 2008 a delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal. On 17 September 2008 a first Tribunal affirmed the delegate’s decision but that Tribunal’s decision was set aside by this court by consent and the matter was remitted to the Tribunal to be determined according to law. A new Tribunal was constituted and heard the applicant together with a number of witnesses who he had advised the Tribunal he wished to call. Following the hearing the Tribunal wrote to the applicant pursuant to s.424A Migration Act 1958 (the “Act”).  That detailed letter was responded to by the applicant’s advisors, Refugee Advice & Casework Service “(RACS).  On 13 May 2009 the Tribunal determined to affirm the delegate’s decision and handed that determination down on 14 May.

2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was the convention reason of religion/membership of a particular social group, he being an adherent of Falun Gong.  He claimed that he began to practise Falun Gong for his health in early 1998 and he used to practice in a local park for an hour every morning before work.  He said that on the morning of 7 July 1999 he and a group were confronted by police while they were practising.  When one member of the group tried to reason with the police they were kicked and beaten.  The applicant was struck on his foot.  He lost consciousness and was taken to hospital for treatment.  Following the Chinese Government’s nationwide campaign against Falun Gong, which commenced on 20 July 1999, he ceased practising in public and put away his books.  He and his group continued to practise in private.  He told that in October 1999 he was dismissed from his workplace because of his Falun Gong associations.  He was forced to do “small business work” to make a living.  On 20 May 2004, while he and another were practising Falun Gong at home, a security officer from the neighbourhood committee discovered them, the police were called and they were taken into custody.  He was detained by the PSB for 15 days, subjected to physical and verbal abuse and was forced to sign a pledge renouncing the practice.  He was fined 5000 RMB Yuan and released on bail with a requirement to report to the police each week.  Because the applicant refused to give up his Falun Gong beliefs he made every effort to obtain a visa that would allow him to travel to a safe country.

3. In the application which was made on behalf of the applicant for his visitor’s visa into Australia he had indicated that he was the freight manager of a Tianjin cargo transport agency whereas the applicant had told that he was a self employed electrician and/or a salesman of small goods. The applicant also provided to the department some letters of support from other Falun Gong practitioners and photographs of him demonstrating in Sydney.

4. In the Tribunal’s reasons for decision it reproduces the statement of the applicant’s evidence before the first Tribunal.  The Tribunal had heard the hearing tape of the first Tribunal and was satisfied that it represented an accurate summary of what was said.  When the applicant appeared before the first Tribunal he brought with him his sister a “Ms L”, Ms L having been granted a protection visa on the grounds of her adherence to Falun Gong.  She was questioned about her knowledge of his Falun Gong practices and was also questioned about the fact that in her own PVA she had not mentioned that she had been introduced to Falun Gong by her brother whereas he now gave evidence of that fact.

5. At the second Tribunal the applicant was asked about the circumstances leading to his completing his PVA.  He told that a fellow Falun Gong practitioner had been found by his sister who was going to help and that another person also was involved, an issue that arose was the fact that the applicant seemed to be very vague about the full names of these people.  The applicant was questioned about his own introduction to Falun Gong and he was also asked why:

   “If her own brother had been a Falun Gong practitioner who had injured by the police, sacked by his employer, detained and mistreated for fifteen days and then placed under surveillance, these important things would have been omitted from her evidence.  He said that the had still be in China when his sister lodged her protection visa and she had been worried about him.” [CB 257]

6. The applicant was asked about the inconsistency between his claims to have been dismissed from his position as an electrician and his subsequent self employment and what appeared in the application for the entry visa which had been completed on his behalf by the tour group.  It seems that in the usual manner some checks were made of his employer and these appeared to confirm that he was indeed employed by that company and the applicant was questioned closely about this.  The Tribunal questioned the applicant about a letter which he received from his wife making it clear to the applicant that the Tribunal considered that the letter had been written for the purposes of enhancing his claims rather than out of genuine concern for the applicant as the phraseology just did not ring true.  He was questioned about a medical certificate and a dismissal certificate that he had produced to the Tribunal which the Tribunal noted had both been prepared on a personal computer.  The Tribunal told the applicant that fraudulent documents could easily be obtained in China. The Tribunal pointed out to the applicant that the last indication of any physical persecution of him appeared to have occurred in 2004 yet he did not obtain a passport until 2007 and did not leave China until 2008.

7. The applicant’s sister gave evidence:

   “She confirmed she was granted protection as a Falun Gong practitioner.  She also confirmed that she had known when she was still in China that her brother was a practitioner.  Asked why she had made no mention of the applicant’s Falun Gong practice in making her own protection visa application she said she had not dared mention his name as he was still in China at the time.  I noted that she had a migration agent at the time who would have made it clear that her evidence has been given in confidence.  She said she realised this but had still not dared to mention his name.   Noting that she had mentioned the name of another Falun Gong practitioner in China I asked if she had not been worried that something might happen to her.  She said this person was old and had not been in detention before.  I asked if these circumstances made it acceptable to mention her name.  She said this was part of it.  Also this person had practised with her.  I asked how this lessened the risk of mentioning her name.  She said she thought it would be safer to mention her name rather than that of her brother.” [CB 264]

8. The s.424A letter [CB 220 - 224] is a lengthy document which sets out each of the Tribunal’s concerns about the applicant’s evidence. It is not necessary for me to rehearse this document because there is only one ground of application and thus many of the matters raised there are not relevant. The one matter that is relevant related to the evidence of the sister and her failure to make mention of having first learned Falun Gong from the applicant in her own PVA. It appears that at the Tribunal hearing and later in the response to the s.424A letter the applicant’s representative raised which it called a “natural justice question” being the apparent refusal of the Tribunal to provide the applicant with a copy of the sister’s PVA. In fact the Tribunal agreed that it would provide the PVA if the sister consented but she had consistently refused to do so, although at one stage she said would do so if it would be of assistance. The Tribunal deals with this matter in its findings and reasons at [CB 282]:

   “[115]There is an element of artificiality about Ms L’s apparent refusal to authorise the Tribunal to release her protection visa application to her brother for use in pursuing his own application for protection.  She has appeared as a witness on his behalf at two Tribunal hearings and provided a statutory declaration in his support.  She provided evidence about her own Falun Gong practice.  She also produced evidence about the applicant’s alleged practice and the harm he had suffered as well as her reasons for not mentioning these things in the course of her own application for a protection visa.  As noted, it is these aspects of her evidence which raised doubts about the credibility of the applicant’s claimed Falun Gong involvement and, having freely given evidence about them, it is by no means clear why she should be reluctant to take the further step of allowing her application to be made available to her brother and his advisor. Nor is it clear that she does, in fact, object to the release:  the advisor stated that she did not know what Ms L’s current position was on the matter and the applicant said he believed she would agree to the release if it was necessary. 

   [116]In any event, the matters relevant to the applicant’s sister’s evidence were fully explored with the applicant and his sister at the second Tribunal hearing and were subsequently put to him in writing.  His sister confirmed her claim to have known of his alleged Falun Gong practice in China but to have made no mention of it in her own application for protection, and she offered explanations for a failure to do so.  I am not satisfied that the applicant or his advisor were disadvantaged in any way by a lack of access to her protection visa application, or that the requirements of natural justice are breached if the Tribunal proceeds to place weight on these aspects of evidence if such access is not available.”

9. In its findings and reasons the Tribunal sets out in detail its views about the applicant’s evidence and those matters which lead it to believe that he was not a credible witness. The findings and reasons clearly show that the Tribunal has considered all of the applicant’s previous evidence and the responses made by his advisors to the s.424A letter. In each case the Tribunal explains why it does not accept those responses as negating the concerns that it had raised. The Tribunal then goes on to deal with the applicant’s practice of Falun Gong in Australia and comes to the view that it cannot be satisfied as required by s.91R(3) that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee and so it has ignored that activity. The Tribunal concluded:

   “In the light of all the information before the Tribunal I am not satisfied that the applicant was ever a Falun Gong practitioner in China or that he had any involvement with the Falun Gong faith there.  I am not satisfied that he was ever harmed by the police, dismissed from his employment, arrested and detained or that he suffered any other form of harm for such a reason nor am I satisfied that there is a real chance he would suffer serious harm for this reason in future.  The only other reason suggested by the applicant as to why he might be harmed by the Chinese authorities is his action in obtaining a’ false identity’ by which he appears to mean that he falsified the details of his employment in order to gain an Australian tourist visa.  Even if such actions were any concern of the Chinese Government, however, I am not satisfied that the applicant did, in fact, falsify his employment details.  The applicant does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal” . [CB 286]

10. On 10 June 2009 the applicant filed an application for review with this court. There is only one ground. It alleges that the Tribunal did not comply with s.424A of the Act because it did not provide the applicant with details of the PVA that his sister had completed. The applicant has not filed an amended application. As should be clear from these reasons, and most certainly will be clear from a reading of the Tribunal decision, the Tribunal put both to the applicant and to his sister the concerns which it had about her failure to make reference in her PVA to having learnt Falun Gong from the applicant. It did not only do this, but it repeated the concerns in the s.424A letter. As has been noted, the Tribunal was not able to provide the applicant with a copy of the PVA because the sister had not provided the Tribunal with her consent.

11. The ground of review to which I have referred repeats the matters in paragraph (3) of the applicant’s response to the s.424A letter. So this very issue was considered by the Tribunal. I am not satisfied that there was any duty upon the Tribunal to provide the applicant with the actual document; VEAL v Minister for Immigration (2005) 225 CLR 88. The High Court, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ, dealt with a case where a “dob-in” letter had been sent to the Tribunal making allegations against the appellant. The Tribunal did not tell the appellant that it had received the letter and it did not tell him that the allegations made in the letter had been made nor ask him about the substance of any of the allegations made in the letter.

    At [7] the court says:

    “It was right for the Tribunal not to have provided a copy of the letter to the appellant and not to have disclosed to the appellant any information that may have revealed the identity of its author. Before reaching its decision, however, the Tribunal should have told the appellant the substance of the allegations made in the letter.”

    At [27] the court said:

    “It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter.”

    And at [29]:

    “It by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. … That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations.”

12. In the instant case, there can be no doubt that the applicant was made fully aware of what the important omissions in the PVA were and the reason why those omissions caused the Tribunal to have doubts about the applicant’s credibility.  They were not only revealed to him; they were revealed to the PVA applicant herself.  It would appear to me that everything that was required by VEAL was done by the Tribunal in this case.

13. The applicant appeared before me in person.  At the commencement of his submissions, he told me that he believed the Tribunal was biased and he felt that he had been humiliated because the evidence that he had provided was dismissed by the member.  He could not see what the evidence was for the Tribunal not believing him.  He says that the Tribunal based its findings upon inferences and implications and he wanted an explanation.  On more than one occasion, during the course of the applicant’s submissions, I made it clear to him that he was obliged to give to me all his submissions at that time and that he could not hold some in reserve until after Counsel for the Minister had concluded.  His right to reply was just that and the Minister could only respond to matters that had been raised originally.  I would like to think that I explained this to the applicant in a sufficiently clear way for him to have comprehended it.  From the bundle of papers that were in front of him I suspected that he might have additional information or additional points to raise and so it proved.  After Ms Sirtes had completed her submissions the applicant started upon his, which were entirely novel.  He wanted to make reference to parts of the Tribunal hearing record.  I told him that I was not prepared to hear these submissions because they were clearly not in reply and that he was not entitled to reserve for himself the last word by withholding submissions that he could have made initially.  If I allowed him to make those submissions then I would have to hear Ms Sirtes again and then hear the applicant in reply to Ms Sirtes.  This is not the procedure which the court adopts and if my views on this matter may appear harsh to this applicant they are given not only for his benefit but “pour encourager les autres.”  I have, regrettably, noted that this practice is becoming more and more common.

14. The applicant made it plain that he found it difficult to understand the nature of a Tribunal hearing and the requirement to come to a state of satisfaction.  There are many cases on this; SZGZQ v Minister for Immigration [2007] FCA 62 [13-14] per Greenwood J; Minister for Immigration vVSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [17]; SZIFB v Minister for Immigration [2007] FCA 1727 per Jacobson J at [10] but perhaps the most lucid expression was given by Allsop J in NAST v Minister for Immigration [2004] FCA 86 at [6 - 7]:

    “My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.”

    Pursuant to the statute if the Tribunal is satisfied of all relevant things it must grant a visa.  Also, if the Tribunal is not satisfied of all relevant things it must not grant a visa.”

1. The applicant in this case appeared to be under the impression that the Tribunal was either obliged to accept his evidence or to prove for itself that his evidence was incorrect or untrue.  This of course is not the case.  It is for the applicant to make his own claims and for the Tribunal to assess whether it can reach the required state of satisfaction from them.  In regard to the claim of bias, the applicant provides the court with no particulars.  He seems to be saying that because the Tribunal did not believe either himself or his witnesses, it must be biased.  In SZHVL v Minister for Immigration [2008] FCA 356 McKerracher J said at 17:

   “It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legend (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J.

   In Minister for Immigrationv MZXPA [2008] FCA 185 Sundberg J said at [14]:

   “An informed and instructed hypothetical person would also know that the Tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo[1997] HCA 22; (1997) 191 CLR 559 at 596. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa. … The Tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the Tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425 at [30].”

   In WAKS v Minister for Immigration [2006] FCAFC 32 the Full Court, Nicholson, Lander and Siopis JJ said at [30]:

   “There is a suggestion in one paragraph of the appellant’s written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 328; (2004) 214 ALR 264 at [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT have been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.”

2. The applicant has not explained to the court exactly how he suggests that the Tribunal was biased or that there was an apprehension of bias.  He said to me, “That when a person is biased then the inferences they draw will not be reasonable and when they infer, and that is taken to be correct, there will be no truth in the earth.  Everything reasonable will become unreasonable.”  I am satisfied that the Tribunal decision in this case cannot be impugned by a claim of bias or apprehended bias.  The decision is argued appropriately.  All the matters of concern to the Tribunal were raised with the applicant in the hearing, raised again in the 424A letter and the response to that letter was considered and referred to in the decision.  The views that the Tribunal came to concerning the applicant’s credibility are views that were based upon its conclusions from the evidence presented to it.  They were open to it on that evidence. 

3. I dismiss the application.  I order that the Applicant pay the First Respondent’s costs assessed in the sum of $5,500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  5 November 2009