SZNNG v Minister for Immigration
[2009] FMCA 1002
•2 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1002 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as Falun Gong practitioner – claims disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.91R |
| Minister for Immigration & Citizenship v SZJGV & Anor [2009] HCA 40 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZNNG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 977 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 2 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 977 of 2009
| SZNNG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in October 2008, and on 4 November 2008 he applied for a protection visa assisted by a person who said they were not a migration agent. His application was supported by a typed history, in which the applicant claimed to have been introduced to Falun Gong by a schoolmate, Mr Z, and to have started practising with that person and two other people in his home in a discreet manner in 2006. The applicant claimed that they had practised continually, and in June 2008 the four were taken into detention when “five police suddenly came to my home”. The four were held in detention, and the applicant was questioned and mistreated. He was not released until 20 days later, after his wife arranged his release. He said:
After I was released, I could do nothing. This was because my wife gave the undertaking to the police that if I continued my Falun Gong practice, I would be sent to labour camp. Under this circumstance, my family made the decision to send me overseas.
The applicant also presented to the Department three short statements in Chinese with translations, purportedly by the three people with whom he claimed to have practised Falun Gong in China. He also submitted a copy of an official document with a translation, purporting to be a certificate of release of the applicant “after being dealt with (according to law)” in June 2008 “for Falun Gong activities”.
The applicant was invited by a delegate of the Minister to attend an interview, but he did not attend. The delegate made a decision on 17 December 2008, refusing the visa application. The delegate said that the absence of the applicant from the interview left him not satisfied that the applicant had substantiated his claims.
The applicant appealed to the Tribunal, and attended a hearing of the Tribunal on 18 February 2009. He did not submit further corroboration of events in China, but submitted a number of witness statements as to his attending Falun Gong practices and demonstrations in Australia. He also submitted three photographs showing the latter.
The Tribunal set out a detailed description of the hearing in its statement of reasons, and I would accept that description. The applicant was given the recording at the end of the hearing, and has been given further opportunities to submit a transcript to this Court, but he has not done so.
According to the Tribunal, the applicant was questioned about his involvement in Falun Gong in China and in Australia, and about his documents and how they had been obtained. The hearing appears to have lasted for some time, and at the end the Tribunal put to the applicant very precisely a series of concerns which the Tribunal had about the applicant’s evidence, both documentary and oral.
Some, but not all, of these concerns were relied upon in the Tribunal’s findings and reasons for deciding that the delegate’s decision should be affirmed. The Tribunal made a decision to that effect on 31 March 2009.
The Tribunal’s reasons are carefully written and, in my opinion, show a genuine, rational and reasonable consideration of the evidence. I consider that its findings were open to it on the evidence, insofar as it is now before me.
The Tribunal formed the opinion that the applicant’s responses to questioning about his practice and understanding of Falun Gong showed some knowledge, but were “otherwise very vague and general”. In particular, the Tribunal gave weight to the absence of any reference by the applicant to the cultivation of ‘xinxing’ as part of his practice of Falun Gong, based upon general information that this formed a significant part of the practice of Falun Gong. The Tribunal considered the applicant’s explanations for his not referring to the cultivation of xinxing, and gave rational reasons for not being persuaded by that explanation.
The Tribunal considered new evidence which the applicant gave the Tribunal, but which was not in his visa statement, claiming that he had also engaged in Falun Gong activities outside his home in China, such as putting up posters and handing out pamphlets. The Tribunal did not accept the applicant’s explanation as to why this had been omitted from the visa statement, and drew the conclusion that “the fact he did not (mention them in his written statement) suggests that they were recently invented claims”.
The Tribunal then considered the evidence about the three witness statements from China, and how they were obtained. It referred to evidence of the applicant about this, which was inconsistent with the appearance on the documents of the dates that they were made and the dates when the translator certified the translation of the originals. The Tribunal also pointed out that the witness statement of Mr Z was dated at a time when he was still allegedly in a labour camp, and contained a contact telephone number which was difficult to understand, if indeed, he was in a labour camp. The Tribunal said that “the Tribunal finds that the applicant has been untruthful about the alleged witness statements from Mr Z, Mr L and Mr D, and finds they are not genuine. The Tribunal has thus given them no weight”. It continued:
In light of the above the Tribunal finds that the applicant was not credible. The Tribunal thus gives no weight to the Certificate of Release submitted by the applicant. The Tribunal thus finds that the applicant was not a Falun Gong practitioner in China as he claims, he did not practise Falun Gong in China or engage in any Falun Gong activities in China such as putting up posters or distributing pamphlets. Further, the Tribunal does not accept that the applicant was detained for any involvement in Falun Gong practice or activities or association with any Falun Gong practitioners nor does the Tribunal accept that he was mistreated by the Chinese authorities or experienced any problems with the Chinese authorities due to any association with Falun Gong.
The Tribunal considered the applicant’s explanation in relation to some of the matters which were put to him, which was that that he lacked language skills. However, the Tribunal thought that there was nothing in the manner in which he gave evidence to suggest that he had difficulties expressing himself in Chinese, and said that the problems identified by the Tribunal with his evidence were not explained by a lack of proficiency in English.
The Tribunal considered the evidence concerning the applicant’s involvement in Falun Gong activities in Australia, and accepted that he had engaged in those activities. However, it said that it was not satisfied that the applicant had engaged in that conduct other than for the purpose of strengthening his claim to be a refugee. It said:
Thus, pursuant to s.91R(3) of the Act the Tribunal has disregarded that conduct in assessing the applicant’s well-founded fear of persecution in China.
The Tribunal concluded that the applicant did not have a well-founded fear of Convention related persecution in China, and that he was not a person to whom Australia had protection obligations under the Refugees Convention.
The applicant now asks the court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power only to make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee, nor whether he should be given permission to stay in Australia.
The applicant’s application contains grounds formulated in the following manner:
Since February 2006, due to my illness, my schoolmate, Mr Z introduced me to practice Falun Gong. On 20 June 2008 I was taken to the local police station with my fellow practitioners where we were all beaten and then sent to Kaifeng City Detention Centre for 20 days. I was released only after bribing the officers of the local public security authority.
The member of the Refugee Review Tribunal didn’t accept my claims. I think the Tribunal member had bias against me and failed to consider my application according to S91R of the Migration Act 1958. The Tribunal member made a jurisdictional error in making the decision.
The applicant has been given the opportunity to file an amended application, additional evidence, and written submissions, after receiving a bundle of relevant documents and a referral for free legal advice, but he has filed no additional documents.
I am unable to give any substance to the four matters alleged in the application. The failure by the Tribunal member to accept the applicant’s claims does not itself suggest any legal or jurisdictional error. This assertion appears only to challenge the merits of the Tribunal’s decision, but this is not something the court can redress. As I have indicated above, in my opinion, the Tribunal’s rejection of the applicant’s claims was open to it on the evidence, even if other conclusions were also open.
The assertion that the Tribunal member “had bias against me” has not been given any evidentiary substance, particularly in the absence of a transcript. The applicant today complained that the Tribunal’s questioning, and its failure to accept his various explanations for the points which were put to it, showed that he had been treated unfairly. However, it was the task of the Tribunal to put to the applicant fairly, matters which might go against him, and the fact that the Tribunal did this does not show that it had closed its mind at that time. I can understand the applicant being disappointed with the outcome of the case and the Tribunal’s failure to accept all his explanations. However, the ultimate outcome does not show that the Tribunal prematurely closed its mind to a proper consideration of all his evidence, including his explanations about the matters which were put to him. I can find no evidence satisfying principles of apprehended bias which were identified by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32], nor satisfying tests of actual bias (see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72]).
The applicant’s complaint referring to s.91R of the Migration Act is unexplained, including as to which subsection he relies upon, and I am unable to give it any substance. The Tribunal’s application of s.91R(3) was, in my opinion, in accordance with the terms of that provision, and reveals no jurisdictional error in relation to its application when construed in accordance with Minister for Immigration & Citizenship v SZJGV & Anor [2009] HCA 40.
The fourth complaint, that generally the Tribunal member “made a jurisdictional error”, is so general as to be meaningless as a ground of review.
The applicant’s oral submissions today criticised some particular aspects of the Tribunal’s questioning at the hearing about the detention certificate and the obtaining of the witness statement by Mr Z, and the Tribunal’s conclusion of recent invention in relation to the applicant’s activities in China. However, I do not consider that the applicant’s submissions raised any argument of jurisdictional error.
The applicant also made a submission, which I had difficulty relating to the evidence before me, that at some point in the hearing the Tribunal or the interpreter misunderstood a reference by him to a detention camp providing “education through labour” by treating such a camp as providing “reform through labour” in the context of discussing Mr Z’s witness statement. In the absence of a transcript, I can find no evidence that any such misunderstanding ever occurred. Nor can I find any evidence of a misunderstanding as to the relevant dates of Mr Z’s detention, as was also suggested. In any event, even if any such mistranslation or misunderstanding occurred, I cannot see that it could have had any material effect on the reasoning of the Tribunal when affirming the delegate’s decision.
I am therefore unpersuaded that any of the applicant’s submissions to me have identified jurisdictional error allowing me to remit his case. I am satisfied that the Tribunal’s decision is a privative clause decision, and that I must dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 12 October 2009
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