SZNUC v Minister for Immigration - [2009] FMCA 1172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUC v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1172

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

Migration Act 1958 (Cth), ss.424A, 424AA, 425

Minister for Immigration & Citizenship v SZKTI [2009] HCA 30
Ministerfor Immigration & Citizenship v SZLFX [2009] HCA 31
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

Applicant:

SZNUC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1800 of 2009

Judgment of:

Smith FM

Hearing date:

18 November 2009

Delivered at:

Sydney

Delivered on:

18 November 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1800 of 2009

SZNUC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in November 2008, and on 24 December 2008 he applied for a protection visa. This was about one month after he arrived. A statement in English translated from Chinese was attached to his application, and explained why he claimed to fear persecution if he returned to the People’s Republic of China.
The applicant said that he came from a family which had been persecuted during the Cultural Revolution, and that in 2005 his father commenced practising Falun Gong exercises to assist his health. The applicant did not claim himself to have commenced to practice Falun Gong, but said:
I printed some reference in my company to appreciate Falun Gong. At July of 2006, I read a book named as ‘comments about China Communist Party’, from which it is revealed the disadvantage and weakness of China Communist Party. Therefore, I printed and spread China Communist Party’s suppression of Falun Gong to the general public. At December of 2007, because of ignorance, I was arrested in the police security bureau.
The applicant said that he was held in detention for 10 days, and was released after the payment of money. He said:
After 2008 Olympic Games, I was informed that China Communist Party would suppress Falun Gong and I would be arrested again. Afterwards, I contacted with some Falun Gong learner to get rid of control under China Communist Party. Therefore, I arrived in Australia with wonderful views and freedom to look for the truthness of Falun Gong. Please grant me the refugee protection visa.
No corroborative support for these claims was ever presented to the Department of Immigration nor to the Refugee Review Tribunal on appeal.
The applicant attended an interview with the delegate on 10 March 2009, and the delegate refused the visa application on 24 March 2009. In his statement of reasons, the delegate said that he was not satisfied that the applicant was involved in Falun Gong, nor that he had a profile which the authorities would consider adverse. The delegate disbelieved the applicant’s claims to have been printing and distributing material about mistreatment of Falun Gong practitioners, because he was unable to give any details about “what the material was about”. The delegate thought that it was incongruous that he said that he did not practice Falun Gong in private for fear of being found out by the authorities, but claimed to have distributed political material in public. The delegate also detected conflicting information given by the applicant about his employment in China and about his places of residence. The delegate referred to the applicant travelling to Australia on a passport issued to him in his own name, and thought that it indicated that the authorities were not interested in him.
On appeal, the applicant attended a hearing of the Tribunal on 17 June 2009. The applicant has not tended a transcript of what was said at the hearing, and I accept the description of the applicant’s evidence given by the Tribunal in its statement of reasons. The Tribunal did not give a narrative of the hearing, but indicated under headings what the applicant had said in relation to those topics at the hearing, and comparing it with what was said on them at the interview with the delegate. This included how the applicant’s family were introduced to Falun Gong, what the applicant’s involvement was in relation to printing or copying and distributing of material, what happened to the applicant after he was released from detention, and what arrangements the applicant made to come to Australia. According to the Tribunal, it discussed with the applicant various concerns, some of which the Tribunal later identified as its particular reasons for its decision.
The Tribunal made a decision on 25 June 2009 affirming the delegate’s decision. In its findings and reasons, the Tribunal explained its reasons for finding that he was “not a truthful witness and his statements both to the Department and to the Tribunal lacked credibility”. Based on that general finding, the Tribunal disbelieved all the elements in the applicant’s claims to have suffered persecution, and to fear persecution if he returned.
The Tribunal thought that, putting aside his claimed history, the applicant’s general concerns about living in China did not establish that he had a well-founded fear of persecution. The Tribunal concluded:
[78]In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in his country, PRC because of his political opinion, his imputed political opinion, his membership of a particular social group, his religion or his imputed religion, or for any other Convention reason. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to PRC. Having regard to the above, the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well founded fear of persecution for a Convention reason if he returns to PRC in the foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal for further consideration. I have power to make these orders only 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 should be believed, nor whether he qualifies for any permission to stay in Australia.
The applicant’s arguments are found in his original application and an amended application. He was unable to develop these arguments in the course of his oral submissions today and raised no new points. His original application said:
I argue that the Tribunal, in the course of finding that “Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now, or in the reasonably foreseeable future if he return to PRC” [No. 78 of its decision] made no reference in its decision to the promptness with which I applied for a protection visa following I arrival in Australia. I argue that, in the circumstance, the Tribunal failed to take into account a consideration, or evidence which it was required to take into account, giving rise to jurisdictional error. The Tribunal failed to consider my application according to S.91R of the Migration Act 1958.
The difficulty with this argument is that it does not appear to me that the applicant ever drew particular attention to the fact that he applied for a protection visa about one month after his arrival, nor does it appear that he made any submissions to the Tribunal that this fact lent support to the truth of his claims. In that situation, no particular inferences should be drawn whether the timing of the applicant’s protection visa application was overlooked by the Tribunal. The Tribunal was aware of the facts, since it referred to the relevant dates in its decision. Prima facie, the speed of visa application might appear to be neutral in its probative force, particularly when the Tribunal disbelieved the claims for other reasons. I am therefore not prepared to infer that any material evidence was overlooked.
Ultimately, in my opinion, the weight to be given to the speed with which the applicant applied for protection after arriving in Australia went only to questions of fact, which were for the Tribunal to decide. I am not persuaded that the absence of discussion of this point in the Tribunal’s reasons reveals any jurisdictional error.
The applicant’s amended application contends:
1.The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise jurisdiction, by reason that it failed to comply with the Migration Act, s.424A(1)
Particulars
a)The RRT failed to comply with the Migration Act, s.424AA(a) in that it failed to give clear particulars of oral information that the Applicant had given to the Department of Immigration at interview. In particular, it did not provide the Applicant with a copy of the interview tape relating to that interview and/or a copy of the transcript of that interview, the RRT preferring to “paraphrase for the applicant what he stated at the interview”, the Applicant having denied making the alleged statements at interview and referring to possible “verbal mistakes by the interpreter”. CB pages 91-93, paragraphs 61-68, CB page 94, paragraphs 73-74.
b)The RRT failed to comply with the Migration Act, s.424AA(b)(iii). CB page 93, paragraph 70.
c)The RRT, in view of the above failure to comply with the Migration Act, s.424AA, at no time complied with its procedural obligations under s.424A(1) and (2).
It is correct, as the applicant pointed out at today’s hearing, that he did not receive a letter from the Tribunal, in his words, “listing the questions intended to be asked by the Tribunal at the hearing”. However, the applicant did not have a general right to receive advanced warning of the Tribunal’s questions.
Section 425 of the Migration Act requires only that the Tribunal should give him an opportunity at the hearing to attend, and “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Although an applicant is entitled to receive advanced warning of any new issues perceived by the Tribunal which might not have been reasonably anticipated from the delegate’s decision, as explained by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 and Minister for Immigration & Citizenship v SZKTI [2009] HCA 30 at [51]), this principle does not extend to require the Tribunal to give warnings about how it might assess evidence relevant to issues which would have been apparent to the applicant. In the present case, it must have been apparent to the applicant from the delegates decision that the general credibility of all his claims was in issue in the review, and that the Tribunal might be assessing his credibility by testing his evidence given to the delegate and to it for consistency.
On now established law, in my opinion, it is clear that no obligations arose under ss.424A and 424AA in relation to the Tribunal’s concerns about the applicant’s inconsistent evidence given to the delegate and to it, concerning the nature of the Falun Gong material he had copied. This issue had been put to the applicant at the hearing (see paragraph [67] of the statement of reasons), and no issues of procedural fairness arise generally in relation to this element of the Tribunal’s reasoning.
In relation to section 424A(1), as interpreted by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 and Ministerfor Immigration & Citizenship v SZLFX [2009] HCA 31 at [22], the Tribunal’s reference to what had been said by the applicant to the delegate did not involve it locating “information” as a reason for affirming the delegates decision, which was required to be put to the applicant in writing. The consequence is that the Tribunal also had no obligations in relation to the alternative procedures under s.424AA (see s.424A(2A) and SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415).
For all these reasons, I do not accept that the grounds contended in the amended application establish any jurisdictional error affecting the Tribunal’s decision.
Although invited by the applicant to consider for myself whether any other jurisdictional error appears in the material before me, I have been unable to identify any. The consequence is that the Tribunal’s decision is a privative clause decision, and I must therefore dismiss the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 1 December 2009