SZNUS v Minister for Immigration

[2009] FMCA 1081

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUS v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1081

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China due to a land dispute and as a Falun Gong practitioner – applicant not believed having regard to prior false claims – Minister permitting a fresh protection visa application notwithstanding prior false claims – no reviewable error found – application dismissed – observations on the risk of a miscarriage of the decision making process following the exercise of discretion by the Minister under s.48B of the Migration Act 1958 (Cth).

Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.48B, 91R(3), 424A, 425

Minister for Immigration v SZJGV [2009] HCA 50
Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
SZJGV v Minister for Immigration [2008] FCAFC 105

Applicant: SZNUS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1856 of 2009

Judgment of: Driver FM

Hearing date: 3 November 2009

Delivered at: Sydney

Delivered on: 3 November 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Buchanan
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1856 of 2009

SZNUS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 30 June 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his practice of Falun Gong and a land dispute.  Background facts relating to the applicant’s claims and the Tribunal decision on them are set out in the Minister’s outline of submissions filed on 26 October 2009.  I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 3 through to 6 of those written submissions:

   The applicant has a complex migration history involving multiple applications and aliases.[1]  The applicant has relevantly claimed to be a citizen of the People's Republic of China who entered Australia on 24 January 1996.[2] 

   On 18 November 2008, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship.[3]  In brief, the applicant claimed that he had left China because of a dispute with corrupt local officials, and that, since arriving in Australia, he had become involved with Falun Gong.[4]

   On 23 January 2009, a delegate of the Minister refused to grant the applicant a visa.[5]  On 20 February 2009, the applicant lodged an application for review of the delegate's decision with the Tribunal.[6]  The Tribunal invited the applicant to appear at a hearing,[7] which he attended on 6 April 2009.[8]  That hearing was adjourned, and the applicant attended a resumed hearing on 4 May 2009.[9]  On 4 May 2009, the Tribunal wrote to the applicant's migration agent, inviting the applicant to comment on information relating to his previous applications.[10]  The applicant's agent responded on his behalf on 20 May 2009.[11]  On 1 June 2009, the Tribunal again wrote to the applicant's migration agent, inviting the applicant to comment on the inconsistencies within the information he had provided with his previous applications.[12]  No reply was received by the Tribunal.[13]

   The Tribunal made its decision on 30 June 2009.[14] The Tribunal found that the applicant was not credible, because of his history of "making false claims, using false identities, and omitting information".[15] The Tribunal did not accept that any of the events that the applicant described in China which went to his claims had actually occurred.[16] The Tribunal found that the applicant had become involved with Falun Gong in Australia in order to establish further grounds for a protection visa application, and accordingly disregarded that involvement purportedly pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).[17] As such, the Tribunal was not satisfied that the applicant held a well-founded fear of persecution for a Convention-related reason.[18]

   [1] See Relevant Documents (“RD”) 94-97

   [2] RD 10

   [3] RD 8-32

   [4] RD 46-47

   [5] RD 86-107

   [6] RD 108-111

   [7] RD 134-137

   [8] RD 172-173

   [9] RD 191-192

   [10] RD 196-289

   [11] RD 290-295

   [12] RD 300-306

   [13] RD 307-308

   [14] RD 317

   [15] RD 350 at [159]

   [16] RD 355 at [183]

   [17] RD 356 at [186]

   [18] RD 356

2. These proceedings began with a show cause application filed on 4 August 2009. The applicant continues to rely upon that application. It was supported by a short affidavit, for some reason filed twice. I accepted paragraph 1 of the affidavit as evidence and paragraph 2 as a submission.

3. I also have before me as evidence the book of relevant documents filed on 7 September 2009. 

4. The applicant acknowledged receipt of the Minister’s written submissions and had them read to him by the interpreter before I came on the bench. The applicant has not taken up the opportunity I afforded him to file and serve an amended application or written submissions. He did take the opportunity to make oral submissions. In those submissions he expressed some mystification about the Tribunal decision. He expressed an inability to understand why he was afforded a further opportunity to pursue claims if he was not to be believed on the basis of his migration history. He admitted making false claims previously and of using false names but he asserted that his most recent claims are true. He put the blame for the previous false claims and identities on his previous migration agents.

5. The applicant was assisted before the Tribunal on the most recent occasion by a migration agent who was registered and declared her involvement. She appears to have taken some trouble to attempt to assist the applicant. Nevertheless, the applicant is also dissatisfied with her services. The applicant denied knowledge of the invitation to comment issued on 1 June 2009 pursuant to s.424A of the Migration Act and addressed to his migration agent as his authorised recipient. The applicant told me from the bar table that he was in dispute with his migration agent at the time over money and that the migration agent did not tell him about the invitation to comment. That was his explanation for his failure to respond to that invitation to comment. The applicant asked me what action he could take against his migration agent. I referred him to the possibility of making a complaint to the Migration Agent’s Registration Authority. He indicated an unwillingness to pursue that option.

6. The sole ground in the application is set out in paragraph 9 of the Minister’s submissions:

   At para 184 of the Decision the Tribunal failed to establish that the applicant was not a member of the social group namely "people whose land had been unlawfully and unreasonably confiscated by the Chinese authorities.

7. At paragraph 184 of its decision the Tribunal states[19]:

   Regarding the representative’s submission in relation to the two particular social groups; people who think Falun Gong is a special belief, but are not religious and they are persecuted by the Chinese authorities; and people whose land has been unlawfully and unreasonably confiscated by the Chinese authorities; the Tribunal finds that even if these particular social groups were accepted, the applicant is not a member.

   [19] RD 355

8. I accept the Minister’s submission that the ground advanced by the applicant is misconceived.  Under the Refugees Convention it was for the applicant to satisfy the Tribunal that he falls within the definition of a refugee for the purposes of Article 1A(2) of that Convention.  Where the Tribunal is unable to be satisfied on that issue, the review application must fail[20]. 

   [20] see Minister for Immigration v VSAF of 2003 [2005] FCAFC 73

9. I also agree with the Minister’s submissions that the Tribunal, in any event, did make a positive finding that the applicant was not a member of the particular social groups that he had advanced because it found that the events he asserted happened in China did not occur[21]:

   The Tribunal finds that the applicant is not a credible witness.  The Tribunal has considered all of the applicant’s claims, both individually and cumulatively, and does not accept any of the events described in the PRC going to his claims, in fact occurred as claimed.

   [21] RD 355, paragraph 183

10. I accept the Minister’s submission that the Tribunal’s conclusion was open to it on the material before it given the applicant’s unfortunate immigration history and the Tribunal’s conclusions as to his credibility. 

11. Further, I am inclined to accept the Minister’s submission, especially in relation to the Falun Gong claim that the particular social group advanced could not be an acceptable social group for the purposes of the Refugees Convention as its binding characteristic is a fear of the harm asserted. 

12. The applicant has had the benefit of advice of counsel pursuant to the Minister’s Panel Advice Scheme. Because he is unrepresented, however, I have considered myself whether there is any other issue in the Tribunal’s decision or its process that might point to a jurisdictional error.

13. One issue concerns s.91R(3) of the Migration Act. The Tribunal disregarded the applicant’s conduct in Australia on the basis that that conduct was not engaged in for any reason other than to enhance the applicant’s protection visa claims[22]. The Tribunal’s approach was consistent with the decision of the Full Federal Court in SZJGV v Minister for Immigration[23]. However, following the High Court’s decision on appeal in the Minister for Immigration v SZJGV[24], it was open to the Tribunal to take into account the applicant’s conduct in Australia, even though only engaged in for the purposes of enhancing his protection visa claims, if the Tribunal considered that the conduct did not achieve its intended purpose. There is, however, no obligation to take into account conduct in Australia in such circumstances. In any event, if the Tribunal had taken the conduct into account, the outcome would have been the same.

    [22] See the Tribunal’s reasons at paragraphs 185 and 186, RD 355-356

    [23] [2008] FCAFC 105

    [24] [2009] HCA 50

14. I have also considered the decision of the Tribunal more broadly. Several things are apparent. The first is that the applicant failed before the Tribunal because he was not believed. The second is that the applicant was not believed because of his prior history of making false claims using false identities. At paragraph 159 of its reasons[25], the Tribunal said:

    The Tribunal finds that the applicant is not a credible witness because he has a consistent and long history of making false claims, using false identities, and omitting information.  In this regard the applicant, through his migration agent, has admitted to making false claims and submitting wrong statements in his previous applications (undated letter received from the migration agent received on 20 May 2009). 

    [25] RD 350

15. The Tribunal then elaborates on that reasoning.  At paragraph 164 of its reasons[26] the Tribunal notes that the applicant did not mention his first protection visa application in 1999 in his successful approach to the Minister in 2008 wherein the Minister exercised his discretion pursuant to s.48B of the Migration Act to permit a further protection visa application. He also initially failed to mention that first protection visa application in his most recent protection visa application.

    [26] RD 351

16. The applicant obviously faced a very substantial credibility hurdle, given his history of making false claims and using false identities. Nevertheless, the Minister, having exercised his discretion in the applicant’s favour to permit a further application, there was an obligation both on the delegate and the Tribunal to consider that application on its merits, otherwise there was no point to the process permitted by the Minister. In my view, it would be a miscarriage of the decision-making process, and a constructive failure of jurisdiction, to reject the applicant’s claims simply on the basis of his prior inconsistent claims, if the Minister had exercised his power under s.48B of the Migration Act to permit a further protection visa application in the knowledge of and notwithstanding those prior claims. A significant factor here is that the Tribunal found that the applicant had not made full and frank disclosure to the Minister prior to that exercise of discretion.

17. I have considered whether the Tribunal exhibited a closed mind in addressing the applicant’s claims. Any decision maker placed in the position of the Tribunal might possibly come with a jaundiced view, given the applicant’s history. One is reminded of the children’s story concerning the little boy who cried wolf. Viewed objectively and overall, however, I am satisfied that the Tribunal gave the applicant a fair opportunity to persuade it that he should be believed, notwithstanding his history.

18. The hearing opportunity afforded the applicant pursuant to s.425 of the Migration Act was a fair one. The applicant was left in no doubt of the need for him to persuade the Tribunal that his most recent claims were true. The applicant had a further opportunity when invited to respond to the invitation to comment issued on 1 June 2009. He denies receipt of that letter but it was his choice to identify his migration agent as his authorised recipient for correspondence. There is no evidence of any fraud on the Tribunal by the migration agent.

19. Viewed overall, I am satisfied that this is a case where the Tribunal was simply unable to be satisfied that the most recent claims advanced by the applicant were true. The Tribunal took into account psychological evidence advanced on behalf of the applicant in an attempt to explain his prior history of untruthfulness. The Tribunal, however, was not persuaded that that psychological evidence was a sufficient explanation.

20. Further, while the applicant sought to put the blame for his troubles on migration agents, the Tribunal formed the view that the applicant had himself been an active participant in the prior pursuit of false claims.  In my view, the conclusions reached by the Tribunal were open to it and, while it might be a challenge for any decision maker in such circumstances to maintain an open mind, the available material does not establish that the Tribunal’s mind was closed. 

21. I find that the decision of the Tribunal is free from any jurisdictional error.  The decision is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

22. The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the sum of $3,700. That is less than the amount prescribed under the court scale in the Federal Magistrates Court Rules 2001 (Cth). The applicant asserted impecuniosity but that is not a reason for the Court to refrain from a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,700.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  5 November 2009