SZOIZ v Minister for Immigration
[2010] FMCA 552
•27 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIZ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 552 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A |
| Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZIRS v Minister for Immigration [2008] FCA 798 |
| Applicant: | SZOIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 845 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 27 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Dinihan Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 845 of 2010
| SZOIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 26 March 2010. 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 her practice of Falun Gong. The following statement of background facts is derived from the Minister’s outline of submissions filed on 12 July 2010.
The applicant first arrived in Australia on 12 August 2009 travelling on a false passport. She applied for a protection (Class XA) visa on 3 September 2009 (Court Book (CB) 1-26). On 16 November 2009 the delegate refused to grant the applicant a protection visa (CB 68).
On 24 November 2009 the applicant applied to the Tribunal for review of the delegate's decision (CB 85-88). By letter dated 9 December 2009 the Tribunal invited the applicant to appear before it to give evidence and present arguments (CB 90-94). The applicant attended the hearing. At the hearing the applicant asserted memory problems due to brain surgery.
Pursuant to s.424A of the Migration Act1958 (Cth) (“the Migration Act”), on 14 January 2010 the Tribunal sent the applicant's migration agent a letter inviting the applicant to comment on or respond to information in writing (CB 112-113). The applicant did not respond to this invitation.
By letter dated 26 March 2010 the Tribunal notified the applicant of its decision to affirm the decision of the delegate (CB 114-138).
Applicant's claims
The applicant's claims for protection were based on religious persecution and can be summarised as follows:
a)she is a citizen of China who lived in Liaoning;
b)while she lived in China she and her husband were Falun Gong practitioners;
c)on 26 July 2008 she, her husband and their cook at the restaurant owned by her and her husband, began practising their Falun Gong exercises when a group of police arrested them. The applicant claims that they were then taken to the police station and her husband was beaten to the point that he had a heart attack and died;
d)the applicant claims that she complained to a number of government authorities in relation to the circumstances surrounding her husband's death but that her grievances would not be heard as they were Falun Gong related;
e)the applicant fears that if she returns to China she will face persecution because of her religious practices and because of the complaints made by her to the authorities; and
f)the applicant claims that she practices Falun Gong in Australia.
Tribunal's findings and reasons
The Tribunal found the applicant to lack credibility in relation to some key aspects of her claims (see paragraphs [88]-[89] of the Tribunal's decision - CB 135-136).
Specifically, the Tribunal found that:
a)the applicant was not involved in the practice of Falun Gong in China. The applicant's response to questions about Falun Gong indicated that her knowledge was not consistent with a person who had been practicing Falun Gong for the length of time that the applicant claimed and the Tribunal did not accept the applicant's claim that she could not remember because she had a “brain problem” and did not know what she was being asked;
b)the applicant had not complained constantly to the Chinese authorities in relation to her husband's death. The Tribunal was of the view that had she complained in this way, the Chinese authorities would not have tolerated such behaviour had they in fact warned her to discontinue such behaviour. The Tribunal reached this conclusion having regard to its concern about the applicant's credibility as well as country information regarding the Chinese government's documented hostility towards anyone believed to be a Falun Gong practitioner; and
c)the applicant had not participated in Falun Gong activities in Australia otherwise than for the purpose of strengthening her claim for a protection visa. The Tribunal's decision to disregard such activities accorded with s.91R(3) of the Migration Act.
The Tribunal found that there was no real chance of persecution for the reason of religion or any other Convention reason arising from the applicant's past conduct in China, if she was to return to China now or in the reasonably foreseeable future.
The application
These proceedings began with a show cause application filed on 16 April 2010. The applicant continues to rely upon that application. There are two grounds advanced in the application:
1.The Tribunal is not satisfied that there is a real chance that I will suffer serious harm for reasons of my being a Falun Gong practitioner or for any other convention reason. The Tribunal made error in this finding; (Ground 1)
2.The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under Refugees Convention. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty. (Ground 2)
The application was accompanied by a short affidavit which I accepted as a submission. I have before me as evidence the court book filed on 14 May 2010.
Consideration
The application suffers from the defect that the grounds in it are not particularised. I gave the applicant the opportunity, in procedural orders made on 12 May 2010, to provide additional evidence or an amended application but she has not taken up that opportunity. I agree with the Minister’s submissions dealing with the grounds as put in the application:
Ground 1
This ground appears to seek a merits review. However, the Tribunal rejected the applicant's claims on the basis of an adverse credibility finding. It is trite law that credibility findings are a matter for the Tribunal "par excellence": Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67].
The Tribunal based its credibility finding primarily on:
a)inconsistencies between the applicant's claims in her protection visa application, her evidence given during the Departmental interview and her oral evidence given at the Tribunal hearing; and
b)the applicant's inability to evidence an understanding of the basic teachings of Falun Gong despite her claim of having been a Falun Gong practitioner for a number of years.
I accept that the Tribunal's rejection of the applicant's credibility was "open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility": Kopalapillai v Minister for Immigration (1998) 86 FCR 547.
Ground 2
The applicant referred to the Tribunal's failure to "... refer to any independent information". However, this ground is contrary to the facts. Country information is referred to at paragraphs [79]-[82] of the Tribunal's decision (CB 133-134) and was relied upon by the Tribunal in finding that the Applicant had not practiced Falun Gong in China. This ground cannot be upheld given the Tribunal’s express reference to country information at [89] of the Tribunal's decision (CB 136).
In any event, the Tribunal has no obligation to refer to independent country information: SZIRS v Minister for Immigration [2008] FCA 798.
Other matters
The applicant is self-represented and I have considered for myself whether there is an arguable case of jurisdictional error arising from the material.
The applicant made short oral submissions in which she asserted bias and unfairness on the part of the Tribunal. In particular, the applicant is concerned that she was not believed by the presiding member. She is especially concerned that the presiding member did not accept her explanation for memory problems. The record of the hearing conducted by the Tribunal contained in the Tribunal’s decision shows that the applicant advanced an explanation for memory problems very early in the Tribunal hearing. At [46] of its reasons (CB 127) the Tribunal records:
She told the Tribunal that she had an operation to remove a brain tumour in spring 2009 at the Medical College of the University at Shenyang. She said she could not remember when she had the operation but she thought it was in March. She said she was in hospital over 10 days, perhaps 11-12 days. The tumour proved to be benign. She said she did not have much memory and she cannot remember things. She said that she has no feeling on the top of her head. She became upset.
The Tribunal’s response at [47] is, to say the least, startling:
I mentioned to the applicant that it was the experience of the Tribunal that Falun Gong practitioners were very calm when they appeared before the Tribunal. It was the Tribunal’s experience that genuine practitioners, because of their beliefs about Falun Gong and its ability to help them mentally and physically, they were able to provide evidence about their claims and lives in a calm and relaxed manner. The applicant did not make any comment.
Members of the Tribunal are selected for their expertise and are not prohibited from drawing on their own personal experience in dealing with protection visa claims. It may be unsafe to do so, however, particularly in support of a proposition so doubtful as that advanced by the presiding member. It would seem to me to be an erroneous assumption that an applicant who becomes upset is not a genuine Falun Gong practitioner. Similarly, it would in my view be a false assumption that an applicant who remains calm during a Tribunal hearing is genuine. Taken in isolation, [47] of the Tribunal’s reasons might raise a concern about pre-judgement on the part of the Tribunal. The paragraph, however, needs to be read in context. The applicant had been disbelieved by the Minister’s delegate. The applicant was aware that she had failed to persuade the delegate and the fact that she raised her asserted memory problems virtually at the outset of the Tribunal hearing was apt to raise the presiding member’s suspicions.
Paragraph 68 of the Tribunal’s reasons (CB 131), records that when the applicant became again upset later in the hearing, the presiding member offered her an adjournment. That was appropriate. It modifies what would otherwise be an impression of callousness arising from [47] read in isolation. Further, the Tribunal discussed with the applicant her memory loss assertions later in the Tribunal hearing at [60]-[62] (CB 129). Viewed as a whole, I am satisfied that the Tribunal gave the applicant a fair opportunity to explain her asserted memory difficulties and that the presiding member did not have a closed mind.
Further, the Tribunal wrote to the applicant purportedly pursuant to s.424A of the Migration Act by letter dated 13 January 2010 to give the applicant a further opportunity to respond to the Tribunal’s concerns. Those concerns included the applicant’s explanation for not knowing much about Falun Gong (see CB 112-113). The applicant denies receipt of that letter, but I note that it was sent by registered post and there is no record of the letter having been returned. The Tribunal records that the applicant did not respond to the letter (see [77] of the Tribunal’s reasons, CB 133).
The Tribunal’s reasoning in relation to the applicant’s claims, including her claimed memory loss, is contained in the first dot point at [89] of the Tribunal’s reasons (CB 136):
During her Departmental interview the applicant was asked when she found out about Falun Gong and she stated that it was in 1997 when she practised with her husband. She stated that because she saw an improvement in her husband’s health she decided to practise also. During her evidence before the Tribunal she stated that she did not start learning Falun Gong until 2007 when she began to feel unwell. During her Departmental interview the applicant was asked questions about Falun Gong and when asked what the basic teachings were, she stated that one should be “honest, kind and do good things”. When asked if there was anything further she stated that one must be “kind, do good things, help others and suffer for others”. She told the delegate she had never read Master Li’s book ‘Zhuan Falun’ in China. She stated that she had read it many times since coming to Australia. The applicant was unable to tell the delegate how Falun Gong exercises increased the Gong and she was also unable to say what the purpose of doing exercises 1 and 3 was. The applicant’s response to the delegate’s questions about Falun Gong indicated that her knowledge was not consistent with a person who had been practising Falun Gong for the length of time she claimed to have practised it. The Tribunal is not satisfied that the applicant practised Falun Gong in China. When the Tribunal mentioned to the applicant that she did not appear to know very much about Falun Gong she said she could not remember because she had a brain problem and she did not know what she was being asked. She stated that she reads Falun Gong material in Australia but still cannot remember. The Tribunal is of the view that the applicant realised that she had not made a very good impression during her Departmental interview about her knowledge of Falun Gong and when she gave evidence before the Tribunal she provided various reasons as to why her knowledge was limited. The Tribunal does not accept that the applicant and her husband practised Falun Gong in China or that they were arrested because of such practise. During her interview with the delegate the applicant was asked when she last practised Falun Gong in chian and she said it was on 26 July 2008. During her evidence before the Tribunal when asked the same question, she stated that she continued to practise Falun Gong secretly at home after that date. These issues were raised in a s.424A letter which was sent to the applicant on 14 January 2010. It provided the applicant with an opportunity to comment and/or respond in relation to these issues. The applicant did not provide any response.
I am satisfied that the Tribunal gave adequate consideration to the applicant’s claims including her claim of memory loss. The applicant made no claim of a brain injury or memory loss in her protection visa claims accompanying her application reproduced at CB 57 to 59. A reading of that document would not suggest that the applicant had any difficulty in recalling specific events. The delegate’s record of decision at CB 75 records that when asked about applying for a passport, the applicant could not remember and sought to explain her inability to remember by stating that she had been hit on the head causing memory loss. The delegate does not record any claim of a brain tumour or surgery. The applicant now asserts before this Court, that both assertions are true: namely, that she was hit on the head causing memory loss and that she also had a brain tumour removed which also caused memory loss. She claimed to have the physical evidence of brain surgery in the form of a scar on her head. She showed her head by parting her hair to the Minister’s solicitor but the Minister’s solicitor was not able to offer any opinion as to what she saw. The fact is that there was no medical evidence to support the applicant’s assertion before the Tribunal. Neither is there any medical evidence to support the applicant’s assertion before this Court. The applicant claimed before me that she did not know how to find a doctor fluent in the Chinese language and could not afford to obtain any medical evidence.
I am satisfied that the Tribunal’s conclusion, that the applicant’s claim of memory loss by reason of brain surgery was a recent invention in consequence of the adverse delegate’s decision, was a finding open to the Tribunal on the material before it. Further, I am satisfied that viewed as a whole, the Tribunal’s process in arriving at that conclusion was a fair one and that the Tribunal presiding member did not show pre-judgement.
I conclude that there is no arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs of $2,935. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item (1)(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 July 2010
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