SZOLT v Minister for Immigration

[2010] FMCA 944

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOLT v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 944

MIGRATION – RRT decision – Chinese applicant claiming persecution for support of Falun Gong Practitioners – disbelieved by Tribunal – rejection of corroborative documents – no jurisdictional error – application dismissed.

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

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Re RRT & Anor; Ex Parte H (2001) 179 ALR 425
SZJGV v Minister for Immigration & Citizenship (2009) 238 CLR 642

Applicant: SZOLT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1282 of 2010

Judgment of: Smith FM

Hearing date: 29 November 2010

Delivered at: Sydney

Delivered on: 29 November 2010

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms K Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1282 of 2010

SZOLT

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 in September 2009.  On 4 December 2009 he applied for a protection visa.  A statement submitted shortly after the application recounted a history upon which he claimed to fear persecution if he returned to the Peoples Republic of China.  

2. The applicant referred to working as a senior officer in a government agency.  In about September 2007 he met two Falun Gong practitioners working in his agency, after he was assigned the task of persuading them to stop practicing.  He become sympathetic, and helped them privately.  He also sent a number of letters to organisations in China, including the Ministry of Public Security, which “called for attentions of giving Falun Gong practitioners basic human rights”.  As a result of this activity, he suffered a series of increasingly severe persecutions. 

3. In December 2007, he was detained for 15 days and questioned about writing the letters.  He then wrote to the local city officials, complaining about his detention and maintaining a citizen’s rights to free speech, and was again detained for 15 days and beaten severely.  Following that event, he was monitored, and even his telephones were watched.  He continued to sympathise with Falun Gong practitioners and to speak up for them.

4. In March 2008 he was attacked on the way home from work, requiring an admission to hospital for a month as a result of a severe injury to his neck and other parts.  A few days after leaving hospital, he was detained and locked up in a legal education training centre on a sentence to a labour camp for two years.  In the course of his questioning before being sent there, he was seriously assaulted and tortured. 

5. However, he was released early, briefly, to attend a conference in Seoul, this travel being shown in his passport.  He claimed that this occurred because the Chinese authorities were concerned about “international influences”, and that four people were sent with him to monitor him.  After returning to China he was again taken into “the legal education centre”.  He was given injections and held there until September 2009, when he was released on bail.  He meanwhile had obtained an Australian visa.  He divorced his wife and travelled to Australia. 

6. He presented to the Department some evidence corroborating his employment, and he was interviewed by a delegate on 1 March 2010.  The delegate questioned him about his tourist visa application, and placed on the file documents in relation to two such applications which had been made by the applicant.  The first application had been made in December 2008, and the second application had been made in April 2009.  The second application had been supported by a letter from his employer confirming his holding a senior position, and noting its agreement that he was taking three months leave for visiting Australia.

7. The file also contained a case note indicating investigations conducted in China before the grant of the tourist visa in April 2009.  The case note indicated that “an employment check” had been conducted, first by a telephone call to a phone number found on a website for his employer agency.  The note said “Dial it, one lady answered the call.  She confirmed PAS employment and position”.  A second check was made by a phone call to a number, being a work number given in both visa applications and also on the letterhead of the employer.  According to the case note, the officer:

   Talked to PA...DOB confirmed.  PA revealed he would travel alone this time and claimed he was too busy in his work to travel to A/A last time.

8. The applicant told the delegate that a friend had made that application for him, notwithstanding that he had been in detention at the time of the second visa application.

9. The delegate made a decision on 4 March 2010 refusing the protection visa application.  In his or her reasons, the delegate was not satisfied the applicant had substantiated the claim of having a well-founded fear of persecution for a Convention reason if he returned to China.  The delegate thought it was implausible that he “...would have stood up for his two colleagues, who he said were Falun Gong practitioners and confronted a few government agencies” and put at risk his employment position persistently in the manner claimed.  The delegate thought the applicant’s responses, when questioned about the second visa application, were confused and inconsistent, and “not forthright”.  The delegate found that the applicant had been able to depart China in a lawful manner, using his own passport, and was not satisfied that he was of any interest to the authorities at that time.  The delegate also referred to the delay in his seeking protection after arriving in Australia.

10. The applicant appealed to the Refugee Review Tribunal and presented a number of further documents in support of his claims.  These included a second translation of his original Chinese protection visa statement, a translation of a hospital record showing an admission in March 2008 lasting about one month for treatment for a severe cut to his throat causing injuries to his larynx and compound injuries to his neck area and right hand.  The medical record did not contain any history in which these injuries had been suffered.  The applicant also submitted further documents showing his qualifications and employment, and some email communications with a friend and his younger brother.  He also submitted a purported official document, being a “Letter of Decision on Obtaining Bail and Pending Trial” dated September 2009.

11. The applicant attended a hearing held by the Tribunal on 19 May 2010 which lasted for about three hours.  Before the hearing he had responded, in writing, to an invitation to comment on various points adverse to his case, including inferences which might be drawn from information on the tourist visa file.  Those matters were further discussed with him at the hearing.  A transcript of the recording is not in evidence, but the Tribunal gives a full description in its statement of reasons which I accept.

12. It appears to me that the nine matters upon which the Tribunal subsequently based its adverse findings were all canvassed with the applicant in the course of the hearing, and the applicant’s responses were taken into account.  Some other matters were also explored by the Tribunal in the course of the hearing, which did not form part of its ultimate reasoning.  The Tribunal received a further post-hearing submission from the applicant after the hearing and it referred to that in its statement of reasons also.

13. The Tribunal made a decision on 25 May 2010.  It decided to affirm the decision made by the delegate.  In its statement of reasons, after fully recounting the evidence and claims made by the applicant, it made nine points in support of a finding that it found the applicant to be untruthful and his evidence to be “unreliable in many respects”.  It also found that he was a person “who completely lacks credibility” and had “fabricated his claims for the purpose of his protection visa application”.  The Tribunal, for that reason, rejected the entirety of his claims to have suffered persecution for speaking out in relation to human rights infringements concerning Falun Gong practitioners.

14. First, the Tribunal noted that the tourist visa application form appeared to be signed by the applicant in April 2009, and was supported by a document showing that he was employed at that time and had been given leave to come to Australia.  The Tribunal found the applicant’s explanation that the application had been made by a friend using blank letterheads to be confused, and thought it nonsensical that a friend would have done all this without any communication with the applicant while he was held in detention.  It concluded that:

    The applicant had prepared and provided his personals documents with the second visitor visa application, contrary to his claim that he was detained at the time.

15. Second and thirdly, the Tribunal said that it “placed significant weight on the verification that DIAC officers made concerning the applicant’s employment”.  It referred to the two telephone checks, and did not accept the applicant’s suggestions that the calls had been made to a number which was answered at his own home by his wife and brother-in-law.  It found that the evidence of the ability of the DIAC officers to verify the applicant’s employment in April 2009 was contrary to his claim that he was in detention at the time and for a considerable period prior.

16. Fourthly, the Tribunal found that the applicant’s evidence about the actions of his friend in procuring the tourist visa should not be accepted, and that the applicant had been untruthful about the friend’s involvement in the visa application.

17. Fifthly, the Tribunal noted that the applicant had been able to leave the country soon after being released on bail pending trial, and while under monitoring and reporting conditions.  It thought that this was inconsistent with country information, and that “the applicant’s ability to depart China suggests that he was of no interest to the Chinese authorities”.

18. Sixthly, the Tribunal noted a claim made by the applicant late in the hearing for the first time, that he had bribed an official so as to leave the country.  The Tribunal thought his evidence pointed to untruthfulness about this.

19. Seventhly, the Tribunal found the applicant’s explanations about his ability to maintain senior employment in a government agency despite the persecution he had suffered to be unsatisfactory, and also inconsistent with his claim that he still had his phone and mobile phone bills paid by his employer even though he had no longer been paid his salary.

20. Eighthly, the Tribunal found the applicant’s evidence about an article of his being published in the foreign media to be confused, and it thought it was untruthful.

21. Ninthly, the Tribunal made an observation concerning the applicant’s activities in Australia.  It said:

    i.   The applicant explained to the Tribunal that he felt that the two Falun Gong practitioners had been denied basic rights and had not been treated well and that the authorities did not act properly with respect to them. He wanted to help and he claims that these were the reasons he wrote the letters, even after he had been warned and detained. However, the applicant also stated that since coming to Australia, he has not written or published anything. He stated that he does not support Falun Gong and its principles and also that he is concerned about the safety of his family. Yet, none of these matters affected the applicant in China where he felt compelled to write to the authorities, even after he was subjected to significant persecution, because he felt these people were mistreated. He was unable to explain to the satisfaction of the Tribunal why he only felt compelled to support the rights of Falun Gong practitioners while in China but not in Australia and why he was only concerned about his family’s safety in Australia and not while he was in China. The fact that the applicant took no steps to pursue his cause since coming to Australia indicates to the Tribunal that he has no commitment to, and no interest in, that cause. This brings into question the applicant’s claims with respect to events in China.

22. The Tribunal said that the combination of all its concerns caused it to make its general finding in relation to the applicant’s credibility, and to reject his claims in their entirety, including of persecution.

23. It referred to the hospital record and said:

    The Tribunal acknowledges the medical report the applicant had presented, however, it offers no explanation about the circumstances in which the injuries were sustained.

24. The Tribunal also referred to the other evidence and documents presented by the applicant to corroborate his persecution and said:

    84. The applicant has presented a number of statements from third parties, as well as other official evidence of persecution, including the bail decision. The Tribunal has considered this material. However, the Tribunal has formed the view that the applicant is not a person of credibility and that he had fabricated his claims for the purpose of his protection visa. The applicant also claims that his friend manufactured his employment leave letter. This ability to manufacture fraudulent documentary evidence is consistent with the country information which indicates that such documents, including summonses, are easily forged and readily available in China. The Tribunal has found the applicant not to be a witness of credibility. The Tribunal has also expressed a number of concerns about the applicant’s evidence and his claims concerning the events in China. In these circumstances, the Tribunal finds that that ‘the well has been poisoned beyond redemption’. The Tribunal is not satisfied that the documentary evidence presented by the applicant has any probative value or that it depicts genuine material.

25. The Tribunal referred to statements by the applicant, both in his written submissions and to the Tribunal at the hearing, suggesting that the truth of his claims of persecution was supported by the fact that he had given up a position in China with a significant income and social position and had abandoned family commitments there.  The Tribunal said:

    85. The applicant refers to his high income, social position and family commitments in China, claiming that he would not give these up if he did not suffer persecution. The Tribunal does not accept that the mere fact that an application for the protection visa is made constitutes probative evidence of the fact that the applicant had suffered persecution. 

26. The Tribunal concluded:

    86. Having considered the applicant’s claims, singularly and cumulatively, the Tribunal finds there is no real chance that the applicant will be persecuted for the reason of his political opinion (actual or perceived), membership of a particular social group or for any other Convention reason if he were to return to China now or in the reasonably foreseeable future.

27. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter 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 have been believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.

28. The applicant has not filed any amended application or written submission and relies upon grounds of review, which were formulated without any specification in his original application:

    1.The Tribunal was preoccupied and biased, and failed to act judicially and afford procedural fairness.

    2.The Tribunal ignored new information and all the relevant evidences and concluded based on irrelevant materials.

    3.The Tribunal failed to comply with S.91R(3) and asked the wrong and irrelevant questions.

29. At the hearing today, I invited the applicant to make specific criticisms of the Tribunal and, as I understood him, he made seven points.  I shall address those points.  I note that, otherwise, I am unable to see any specific argument which could have been made by the applicant to provide arguable substance for the generalities in his application for review.

30. The applicant’s first point referred to the Tribunal’s rejection of the documents he presented as corroborative of his claimed persecution.  He submitted that there were inconsistencies in the Tribunal’s reasoning in relation to the documents, by its rejecting some of them as fraudulently manufactured but appearing to accept other documents.  However, I was unable to detect any inconsistency in the Tribunal’s conclusions about the documentary evidence before it, in particular, its rejection of the documents which specifically purported to corroborate the persecution of the applicant and his mistreatment by the Chinese authorities.

31. It appears to me that the Tribunal did not reject other documents concerning the applicant’s employment and qualifications, nor for that matter, the fact of his having had hospital treatment for a severe neck injury.  In paragraph [84], which I have extracted above, the Tribunal explained that it had weighed the documents presented as corroborative of persecution, against its concerns about the applicant’s own evidence.  In my opinion, the Tribunal’s reasoning was not illogical nor manifestly unreasonable.  It does not reveal error in relation to the weighing of corroborative evidence as recently explained, for example, by the Full Court in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50.

32. The applicant’s second point developed from his criticism of the Tribunal’s opinion that he had presented manufactured documentary evidence.  It suggested that the Tribunal had a general bias against such evidence presented by people claiming persecution in China.  In effect, he argued that the Tribunal had a closed mind in relation to his refugee claims generally and his documentary evidence. 

33. However, I am unable to find any evidence supporting a contention of actual bias or any conduct of the Tribunal which might give rise to an apprehension of bias.  The Tribunal’s description of the hearing, which is the only evidence I have of what happened at the hearing, gives no support for a case of actual or apprehended bias within principles of Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 & Re RRT & Anor; Ex Parte H (2001) 179 ALR 425. Its statement of reasons shows that it did no more than its duty to arrive at findings on the credibility of the applicant’s refugee claims.

34. In relation to the Tribunal’s treatment of the applicant’s documents, the Tribunal was faced, as it noted in paragraph [84], with somebody who was inviting it to find one set of documents, the visitor visa documents, to have been manufactured, but to accept the refugee documents.  In my opinion, no jurisdictional error is pointed to by the fact that the Tribunal took the reverse view of the documentation.   Moreover, it is clear from this and other aspects of the Tribunal’s reasons that it did not base its decision upon a general opinion that all documents presented by the applicant to the Department of Immigration, or by all Chinese refugee and visa applicants, should be rejected as suspect.

35. The applicant’s third point criticised the Tribunal’s reasoning for giving insufficient weight to his medical report concerning his neck injury.  The applicant said that the Tribunal could have verified the truth of his having a neck injury by observing him in the hearing.  He suggested that, if the Tribunal accepted that he had a neck injury, it should have accepted that it had occurred in the circumstances that he claimed.  However, as I have noted above the Tribunal expressly considered what weight to give to the medical evidence.  In my opinion, it was open to it to take the view that the medical document did not, in its own terms, provide corroboration of the claimed circumstances in which the injury had occurred.  I can see no jurisdictional error arising from how the Tribunal has weighed that piece of evidence.

1. The applicant’s fourth point criticised the Tribunal’s reasoning which expressed concern that the applicant’s lack of involvement in human rights activities in support of Falun Gong in Australia “brings into question the applicant’s claims with respect to events in China”.  The applicant repeated to the Court the explanations he had given to the Tribunal for that inactivity, being his preoccupation with other matters when establishing a life in Australia. 

2. It appears to me that the Tribunal probably considered his evidence about those activities. The point made by the Tribunal does not appear to have been a principal or dominant reason for its rejection of the applicant’s refugee claims. I consider that it was open to the Tribunal to consider this issue, and treat it as supportive of its conclusions. This part of the Tribunal’s reasons is not, in my opinion, demonstrative of any irrationality providing jurisdictional error. Nor did the Tribunal’s consideration of the applicant’s conduct in Australia infringe the provisions of section 91R(3) as interpreted by the High Court in SZJGV v Minister for Immigration & Citizenship (2009) 238 CLR 642.  The applicant had not presented his conduct in Australia as supportive of his refugee claims, and the Tribunal was entitled to weigh his conduct adversely.

3. The applicant’s fifth point complained that the Tribunal had given emphasis at the start of the hearing to the circumstances and delays attending his making his protection visa application, and had appeared critical of his conduct.

4. The Tribunal’s description of the hearing at paragraphs [40], [41] and [42] of its decision confirms that the Tribunal commenced its questioning by investigating how the protection visa forms were prepared, and that it pointed to matters that suggested the involvement of an undisclosed migration agent.  The applicant explained that he had been getting advice from a number of people which had delayed his presentation of his case.  There is no evidence in the Tribunal’s reasons that it did not accept his explanations, nor that this area of its questioning informed its ultimate adverse opinions about the applicant’s creditability.  I therefore cannot see any point arising from the applicant’s submissions concerning this part of the hearing, which could bear upon the validity of its ultimate decision.

5. The applicant’s sixth point attempted, it appears to me, to undermine the Tribunal’s reasoning based upon the employment checks conducted in China in relation to his last visitor’s visa application.  I have tried to understand the points made by the applicant concerning the investigations on the internet, but had difficulty doing so.  He did not persuade me that it was not open to the Tribunal to give weight to the record of the investigations conducted by the immigration officers in China.  I consider that it was open to the Tribunal to rely on this information, and to reject as unbelievable the applicant’s explanations about how his visitor’s visa application had been made and verified while he was incommunicado in detention.

6. The applicant’s seventh point criticised the Tribunal for not giving more weight to his argument that his veracity was supported by considering what he had lost by leaving China and coming to Australia.  However, in my opinion, this point was a matter for the Tribunal to consider, and it did so.  It has clearly understood the point made by the applicant and it expressly addressed it in paragraph [85], which I have extracted above.  The Tribunal’s reasoning is somewhat elliptic, but I do not consider that it reveals any illogicality or unreasonableness in relation to the particular point. 

7. Moreover, the adverse conclusion generally arrived at by the Tribunal was, in my opinion, firmly based upon a sound probative basis in the material, particularly concerning the visitor’s visas applications and the applicant’s unbelievable evidence concerning them.

8. Taking into account all the points made by the applicant today, I am unpersuaded that they provide any substance for the heads of jurisdictional error asserted in the grounds of the application.

9. I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error, and I must therefore dismiss the application. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  13 December 2010