SZNLL v Minister for Immigration

[2009] FMCA 758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLL v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 758

MIGRATION – RRT decision – Chinese applicant claiming persecution for importing Falun Gong literature – disbelieved by Tribunal – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), s.91R(3)

M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant: SZNLL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG861 of 2009

Judgment of: Smith FM

Hearing date: 30 July 2009

Delivered at: Sydney

Delivered on: 30 July 2009

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms K Dunn

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $3,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG861 of 2009

SZNLL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant arrived in Australia on a visitor’s visa in July 2008.  On 19 August 2008, she applied for a protection visa assisted by a registered migration agent, Ms Weiming Qian.  The application was accompanied by a statement signed by the applicant, but no other documents. 

2. In the statement, the applicant referred to starting work as a cosmetologist with a beauty salon in 2002.  She became a good friend of a customer who was a “secret Falun Gong practitioner”.  The applicant was sent by the beauty salon to Hong Kong and Singapore to attend training several times, and she claimed on one of these trips to have “collected some brochures that some Falun Gong practitioners handed out”, and to have taken them back to show her friend. 

3. On her last trip in January 2008, while staying in a hotel at the Hong Kong airport, she said: “I met some Falun Gong practitioners handing out brochures.  I collected some and put into my bag, ready to bring them back to Mainland”.  When she was checking out, the documents were discovered by customs officers, and she was detained and interrogated by policemen.  They did not believe her denials that she was a Falun Gong practitioner, and she was given to the Public Security Bureau in her home district, where she was detained in a detention house.  She said: “I was released 2 months later”, after her husband paid a sum of money, but she was required to report to the police station every week.  The applicant’s statement said that another friend helped her to escape to a different district, and she hid at her home.  She then obtained a visitor’s visa to come to Australia with the assistance of another friend.  Her statement said: 

   I had never practiced Falun Gong in China but was labelled “Falun Gong practitioner” by the Chinese government only for bringing back some pro‑Falun Gong brochures.  It’s so ridiculous.  Since I arrived in Australia, I have known some Falun Gong practitioners.  With their guidance, I have begun to practice Falun Gong. 

4. The applicant was invited to an interview by the delegate, and she attended on 31 October 2008. The delegate gave a decision on 17 November 2008, refusing the visa application. According to the delegate, at the interview “she was unable to provide credible details or convincible reasons in support of her claims”. The delegate said she was “unable to provide any credible explanation for her actions” in bringing back Falun Gong literature, nor to provide “plausible details” of her detention or interrogation. The delegate said: 

   I find her reluctance to provide these details raises strong doubts whether the applicant genuinely fears persecution in the PRC due to her claimed association with Falun Gong/Falun Dafa. 

   The delegate referred to the applicant’s ability to leave China legally on her passport, and was not satisfied that she was a refugee. 

5. There was on the file of the Department when it came to the Tribunal, four documents, three of which are now in the Court Book before the Court.  The delegate does not refer to any of these documents, and has either overlooked them or they were provided to the Department after he had made his decision.  According to the Tribunal, although this is not shown by anything in the evidence before the Court, “all these documents were translated on 31 October 2008, after the application was made”.  That date was also the date of the interview by the delegate.  According to the Tribunal, the applicant told the Tribunal that she had given the documents to the Department “at her interview”. 

6. It is unnecessary for me to arrive at conclusions on exactly how and when the documents reached the Department’s file, and it is immaterial whether the delegate, in fact, overlooked them.  This is because it is clear that the Tribunal took them into account, after discussing with the applicant their contents and the implications of their not being presented to the Department with the visa application. 

7. The documents consisted of a beauty college diploma, which I assume would not have advanced the applicant’s case, although a copy of it is not in the Court Book.  There were also three documents purporting to corroborate the applicant’s detention.  The first purported to be a document of a police station in the [City] Public Security Bureau, reciting that the applicant was found carrying Falun Gong publications and was given a fine and “3‑months’ education through labor”.  That document has a signature purporting to be that of the applicant, although there is an annotation raising some doubt about this.  The other two corroborative documents purported to be witness statements by friends of the applicant.  Without any details, they refer to the applicant collecting Falun Gong publications before being arrested, and to her later hiding at the home of a friend. 

8. The applicant lodged an appeal to the Tribunal, which was not accompanied by any other further documents nor other evidence or information concerning the applicant’s refugee claims.  She attended a hearing held by the Tribunal on 25 February 2009.  The records show that the Tribunal provided a NAATI Level 3 interpreter in Mandarin.  It set out in its statement of reasons a description of the hearing which suggests that there were no difficulties in the interpretation of the applicant’s evidence.  Although this is now challenged by the applicant, she has not presented any evidence to the Court by way of transcript or other evidence which would cause me to doubt the Tribunal’s description of the hearing in its statement of reasons. 

9. According to the Tribunal, the applicant’s evidence revealed a number of inconsistencies between the documents lodged with her visa application and the other documents.  These included some relatively minor details about her address and work history and family structure.  The applicant’s evidence also displayed at least one very significant area of inconsistency, being the period of time when the applicant was held in detention.  As I have indicated, there was an inconsistency in this respect between both the written visa statement of the applicant and the later presented PSB document, and the applicant herself told the Tribunal that she was held for 20 days before her husband paid a fine and she was released. 

10. The Tribunal drew these inconsistencies to the applicant’s attention, and discussed her explanations which sought to reconcile her evidence or blame the agent for any inaccuracies.  The Tribunal said that it also discussed the documents she had presented to the Department, and its concern that they had not been provided at the time of the visa application.  The Tribunal also discussed with the applicant her activities in relation to Falun Gong in Australia. 

11. The Tribunal made a decision on 16 March 2009, which affirmed the delegate’s decision.  In its “Findings and Reasons”, the Tribunal said that it could not be satisfied that the applicant was a witness of truth, based upon “the information that was put to the applicant at hearing”.  The Tribunal referred to the inconsistencies between her oral evidence and the written information she had provided, particularly concerning the period of her claimed detention.  The Tribunal expressly considered the applicant’s claim that there was a mistranslation at the hearing.  It said: 

    61.In her statement, and in the document she provided from “[City] Public Security Bureau”, it stated that she “is to be transferred” to the [Location] Detention Centre from [A] Police Station.  This is significantly different to her evidence at the hearing, which is that she was held at the [City] police station for the entire period of her detention.  She later changed this evidence, citing a misunderstanding of the Tribunal question.  The Tribunal formed the view that the applicant is an intelligent, sophisticated and educated person and that she had no difficulty understanding the proceedings at the hearing.  She gave no indication that there was any problem with the interpreter.  The Tribunal therefore does not accept that the discrepancy in her evidence was due to a misunderstanding of the Tribunal’s question. 

12. The Tribunal then considered the supporting evidence presented by the applicant.  In relation to the PSB document, the Tribunal thought it “extremely unlikely that an agent would fail to ascertain whether the applicant had evidence to support a significant claim, such as being held in detention”, and for that reason had “very serious reservations as to the authenticity of this document”.  In relation to the two witness statements, the Tribunal referred to their lack of details, and said in relation to each of them that it was “not prepared to accept the letter as evidence supporting the applicant’s claims which is sufficient to overcome the Tribunal’s finding as to the applicant’s lack of credibility”. 

13. The Tribunal concluded that given the applicant’s lack of credibility and of detailed supporting evidence to overcome it, it was not satisfied that she had obtained Falun Gong material and taken it back to China for her friend, nor that she had been arrested and detained, nor that she had been made to report to police.  The Tribunal thought that the applicant’s ability to leave China without difficulty suggested that she was not of interest to the Chinese authorities at the time of her departure.  The Tribunal said it was not satisfied that the authorities in China “believe that the applicant is Falun Gong”. 

14. The Tribunal considered the applicant’s evidence that after coming to Australia she had been reading Falun Gong books, and on some occasions had attended a Falun Gong exercise group.  The Tribunal thought that there was a “lack of significant involvement”, and that her involvement was “only for the purpose of strengthening her claim to be a refugee within the meaning of the Convention”. It therefore disregarded that evidence pursuant to s.91R(3) of the Migration Act 1958 (Cth).

15. The Tribunal concluded that the applicant would not practise Falun Gong if she returned to China, and was not satisfied that she had a well‑founded fear of persecution in China for a Convention reason. 

16. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I can only make these orders if the Tribunal’s decision was affected by a jurisdictional error.  I do not have power myself to decide whether the applicant should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia. 

17. The applicant’s application contains grounds framed as follows: 

    1.I can not go back to China, I will be persecuted by Chinese government. 

    2.Jurisdictional error has been made.  RRT considered my case unfairly. 

    3.Procedural Fairness has been denied by RRT. 

    No amended application or written submissions or evidence in support of these grounds has been filed by the applicant. 

18. Ground 1 amounts to no more than an assertion of the applicant’s refugee claim, but it is not the function of the Court to determine whether she is a refugee.  

19. The contentions of jurisdictional error and denial of procedural fairness in Grounds 2 and 3 of the application are not explained in the application, and have not been explained to me by the applicant. 

20. In her oral submissions today, the applicant maintained that the Tribunal had not fairly assessed her case, and that it should have accepted her documents and the truth of her claims.  However, in my opinion, the Tribunal’s adverse finding of the applicant’s credibility was open to it on the evidence before it, and it has given rational reasons for arriving at its adverse conclusion. 

21. The Tribunal’s consideration of the corroborative documents was, in my opinion, in accordance with authority (see WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70] and Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [59]‑[68], [74]).

22. The applicant also again claimed that there had not been an exact interpretation at the hearing of the Tribunal. However, there is manifestly insufficient evidence before me to allow me to find that jurisdictional error has been established in relation to this in accordance with authorities including Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723, and M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212.

23. Taking into account all that the applicant said to me today, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error.  I must therefore dismiss the application. 

I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  11 August 2009