SZOQG v Minister for Immigration
[2011] FMCA 115
•22 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOQG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 115 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R(3), 424A(1) |
| Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 |
| Applicant: | SZOQG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2079 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 22 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms K Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2079 of 2010
| SZOQG |
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 February 2010, travelling on his own passport with a tour group from the People’s Republic of China. He left the group soon after it arrived, and on 2 March 2010 he lodged an application for a protection visa assisted by a migration agent, Weiming Qian. A statement attached to the visa application recounted a history upon which he claimed to fear persecution if he returned to China.
The applicant claimed that his wife had practised Falun Gong since 1998, and that in 2008 he commenced the practice himself after suffering an injury. He said he “started practicing Falun Gong with my wife everyday.” On a specified date in May 2009, when he was practising alone and was “following the DVD”, he was discovered by a person who informed on him to the police. The police took him to the police station, and he was detained for seven days “under the accusation of practicing Falun Gong even though they did not have enough evidence”.
Following this experience he felt depressed, and went for a trip to Singapore, Malaysia and Thailand “to change my mood”. In the course of his travel, he discovered “how the Chinese government persecuted Falun Gong practitioners”, and he then decided to live abroad and came to Australia “with the help of the agent”.
He later presented to the Department of Immigration, a document purporting to be a release certificate. He also presented a statement from a workmate at his factory, which referred to the applicant being “caught by the police” and “he quit after this”.
The applicant was interviewed by the delegate on 25 May 2010. The delegate had information from the tourist agency responsible for the tour group, which recounted its investigations of the applicant’s employment prior to the issue of the tourist visa. These included phone calls with several persons including the applicant, which confirmed his employment at the factory in January 2010. The agency said that the applicant was a member of a group sponsored by the employer, and that two others had also absconded.
The delegate made a decision on 31 May 2010, refusing the protection visa application. The delegate thought that the applicant’s testimony, when questioned about events, “appeared rehearsed and contrived”. The delegate was not satisfied that the applicant was a genuine Falun Gong practitioner, nor that he had been dismissed from his work after being released from detention. The delegate said that the applicant had not satisfactorily explained information which suggested that the applicant had travelled with other people who had absconded, including by previously travelling with one of them to Malaysia. The delegate found no evidence which indicated that the applicant would be of interest to the authorities for a Convention‑related reason in the reasonably foreseeable future, if he were to return to China.
The applicant appealed to the Refugee Review Tribunal, assisted by his migration agent.
The Tribunal invited him to comment in writing on a number of matters which might reflect on his credibility, including inconsistencies and other aspects of the evidence he had given to the Department. As a matter of law, some of these matters probably did not require an invitation under s.424A(1) of the Migration Act 1958 (Cth). However, the information included the evidence of his being employed in January 2010, and this was required to be put to him in writing, in view of the reasoning subsequently followed by the Tribunal. In my opinion, the Tribunal’s letter was sufficient for the purposes of the section (see page 84 of the Court Book).
The applicant responded to the Tribunal’s invitation to comment, including by maintaining that he did not know other members of the tour group nor that they had worked for his former employer, and suggesting that everything had been arranged by an agent without his knowledge.
The applicant attended a hearing of the Tribunal on 17 August 2010 without being accompanied by his agent. He presented to the Tribunal photographs showing his recent participation in Falun Gong activities in Sydney, and a photograph to corroborate an injury which he claimed he had suffered while in detention.
The Tribunal questioned the applicant about his claims, and put to him a series of concerns which subsequently formed part of its reasoning. They included concerns about his documentation, and the inconsistency of his claims with the information from the tourist agency.
A transcript of the hearing has not been put in evidence by the applicant, although he was given that opportunity in the course of these proceedings. I therefore rely upon the description of the hearing given by the Tribunal in its statement of reasons. On my reading of its description, nothing occurred at the hearing which would support a contention of apprehended bias or actual bias. Rather, it shows the Tribunal endeavouring to discover the truth in relation to the applicant’s claims.
The Tribunal made a decision on 23 August 2010, which affirmed the delegate’s decision. In its findings, the Tribunal said:
69.The Tribunal found the applicant to be a person who completely lacked credibility. There were significant inconsistencies and deficiencies in the applicant’s evidence. Significant new evidence was raised by the applicant for the first time in his interview with the delegate. The applicant appears to have memorised his statement and he had difficulty providing information and details about material that was not contained in his statement. The Tribunal’s concerns are noted below.
The Tribunal then explained a long list of concerns, almost entirely arising from an examination of the applicant’s own evidence. Some of these, looked at in isolation, might not appear to have been significant. However, cumulatively they amply supported the Tribunal’s adverse conclusion.
Some points made by the Tribunal were substantial, including the inconsistency between the applicant’s claim to have been dismissed by his employer following discovery as a Falun Gong practitioner, and the evidence of the tourist agency that his employment continued at least until January 2010. In that respect, the Tribunal said that it “formed the view that the applicant continued to work at the factory in January 2010, so that he was not dismissed from employment due to his involvement with Falun Gong in May 2009”. In my opinion, this conclusion was open to the Tribunal on the evidence before it, and it obviously undermined his claims.
In my opinion, the Tribunal also identified other real defects in how the applicant had responded to its questioning in an inconsistent manner.
The Tribunal examined the documents the applicant presented as corroboration. It perceived weaknesses in the delay before the documents had been presented, and inherent difficulties which left them inconclusive or discredited. In relation to the purported official documents, the Tribunal referred to evidence suggesting that fraudulent documents were readily available to Chinese visa applicants, and it said:
74.… Having regard to the Tribunal’s observations above concerning the applicant’s credibility, the Tribunal does not consider the release certificate to be a genuine document. The Tribunal gives it no weight.
In my opinion, the Tribunal’s discussion of the corroborative documents reveals no jurisdictional error, conformable with the recent discussions in the Full Court in relation to this (see Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50).
As a result of the Tribunal’s adverse view of the applicant’s credibility, it rejected all of his claims upon which his assertion of fear to return to China were based. It found that the applicant had no interest in Falun Gong while in China, and had no commitment to Falun Gong.
The Tribunal considered the applicant’s evidence of practise of Falun Gong in Australia and of involvement in other Falun Gong activities. However, it was not satisfied that this conduct had been engaged in otherwise than for the purpose of strengthening his claim to be a refugee, and it was bound to disregard that evidence by s.91R(3) of the Migration Act.
The Tribunal found that the applicant would not engage in Falun Gong‑related activities if he returned to China and would not be perceived as a Falun Gong practitioner. It found that there was no real chance that he would be persecuted due to Falun Gong if he were to return.
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 be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia.
The applicant’s grounds of his application appear in his original application as follows:
1.Refugee Review Tribunal denied procedural fairness to me.
2.The RRT member was very impatient to me.
These contentions have not been given meaningful content in any amended application or written submissions.
In relation to the assertion of denial of procedural fairness in Ground 1, I am unaided by any meaningful submissions. I am unable to identify any departure from procedures required to be followed by the Tribunal under the Migration Act, whether for the purpose of ensuring fairness or otherwise.
In relation to the assertion of fact in Ground 2, I can find no evidence of “impatience”, whether evidencing jurisdictional error or not, particularly in the absence of a transcript of the hearing. It appears clear that the Tribunal engaged in close questioning of the applicant, which he may have found uncomfortable. However, I can see nothing in the Tribunal’s description of the hearing, which might suggest that it conducted the hearing in any manner which might give rise to an apprehension of bias within principles applied by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425.
The applicant today, when pressed to give content to his grounds, referred to the Tribunal’s rejection of his documents. He asserted afresh that he was a Falun Gong practitioner and that “all his documents were correct”.
However, as I have explained above, in my opinion it was open to the Tribunal not to be persuaded by his corroborative documents, and its reasoning in that respect was rational and founded on evidence which left its adverse conclusions open to it.
Taking into account all that the applicant has said to me today, I am not persuaded that the Tribunal made any jurisdictional error allowing me to remit the matter. I must, therefore, dismiss the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 8 March 2011
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