SZOTZ v Minister for Immigration
[2011] FMCA 153
•4 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOTZ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 153 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as Falun Gong supporter – disbelieved by Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R(3), 427(6), 477(2) |
| Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 |
| Applicant: | SZOTZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2489 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 4 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms L Buchanan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 17 November 2010.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2489 of 2010
| SZOTZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia at the end of August 2009 on a visitor’s visa allowing multiple entries. He had previously visited Australia with a tour group for a week in early August, and then returned to China. On 19 October 2009, an application for a protection visa was lodged on his behalf by a migration agent.
In a statement attached to the application, the applicant explained reasons for fearing persecution if he returned to China. He referred to coming from a family living in a village, leaving his province in 2005, and establishing a restaurant in Shanghai. He said he was introduced to Falun Gong by a friend and practised it, even after his friend was detained in 2006 and sentenced to three years gaol. After his friend’s arrest, the applicant was “involved in putting up posters, denouncing the persecution of the Falungong practitioners by the government. I also complained to my friends and other people around me about the inhumane and unjust persecution suffered by the practitioners”. He said: “the authorities started to keep eyes on my activities”. In June 2008, “I was taken to the local police station when I was visiting my family in my hometown”. He was released after his brother paid money to the police chief. He said: “I was then released when I was being delivered to the [local] County Public Security Bureau”.
Following that event, “my family suffered a lot of discrimination in the community”. His son was dismissed from the army “because his father was involved in Falungong”. His wife divorced him in 2009 because she could not persuade him to give up practising.
In July 2009, when he was putting up posters, he was “spotted by the patrolling police and then got caught at my mother’s home. I was immediately detained at the [local] County Public Security Bureau and suffered from inhumane torture”. He was not released for 15 days.
Soon after his release, he joined the tour group and came to visit Australia. He said: “during my stay in Sydney, I contacted the local Falungong practitioners”, notwithstanding advice against this from the tour guide. When he went back to Shanghai with the group, his ex‑wife told him that the public security police had gone to his home, and they had told her that “I had not changed my behaviour and that I had made contact with the foreign illegal group. I was scared on hearing that as I feared that I would be locked up and be tortured again. My restaurant in Shanghai was also shut down”. He then discovered that he could return to Australia on his visa, and he did so.
A number of documents and photographs were submitted in support of these claims. They included photographs purporting to show the applicant practising Falun Gong in his home village, being arrested, visiting other Falun Gong practitioners in detention, and being held in detention. Other documents were submitted, including an official release document, and a document confirming his son’s dismissal from the army as a result of his father joining a cult organisation.
The applicant was interviewed by a delegate in company with his agent, on 13 January 2010. The delegate made a decision refusing the visa application on 10 February 2010. In her reasons, the delegate said that his evidence was “unconvincing, contradictory and inconsistent with information contained in his written Protection visa application”, and the delegate identified problems in his evidence and with his photographs and documents. The delegate was not satisfied that the applicant was or would be considered to be of adverse interest by the Chinese authorities and persecuted on account of his claimed Falun Gong activities. The delegate also drew attention to his travel in and out of China on his own passport without difficulty, as “raising doubts as to the applicant’s true circumstances and whether he left China as he feared being persecuted by authorities”.
The applicant appealed to the Refugee Review Tribunal assisted by his agent. His agent submitted further documents and statements and several submissions. The applicant was questioned by a Tribunal member on 10 May 2010 with his agent in attendance. For reasons which are not clear, the Tribunal was reconstituted, and a new member of the Tribunal conducted a further hearing, attended by the applicant and his agent on 10 August 2010. That hearing appears to have lasted about two and a half hours.
A transcript of the hearing has not been tendered by any party. The Tribunal gives a description as to its questioning of the applicant about all the elements in his claims. According to the Tribunal’s description at the end of the hearing, the Tribunal put a number of matters to the applicant which were causing it concern, and gave him an opportunity to respond. These included, in my opinion, all the matters upon which it ultimately decided the case.
At the end of the hearing:
94.The Tribunal gave the applicant the opportunity to make any further comments. He said he had nothing further to say. The Tribunal then asked the representative for any comments. She said firstly that the applicant’s travel to his hometown was to obtain ‘local produce’ not ‘fresh vegetables’ and this was an interpretation error.
The Tribunal then records some further submissions being made by the applicant’s agent.
The Tribunal said that it gave the applicant another week to submit further submissions and documents. The applicant’s agent availed herself of that opportunity, in particular to submit a translation of a purported penalty notice from the Public Security Bureau (“PSB”), and another document.
The Tribunal made a decision on 20 September 2010, affirming the delegate’s decision. The Court Book suggests that a copy was sent by facsimile to the applicant’s agent and not to the applicant. A copy of the decision bearing a facsimile notation from the Tribunal with that date was attached to the affidavit accompanying the applicant’s present application. I therefore find it probable that a copy was faxed to the applicant’s agent on that date and was received by her.
The time for commencing proceedings in this Court expired on 25 October 2010. The applicant’s application was not, however, filed until 17 November 2010, some three weeks later. The applicant therefore requires an order extending time under s.477(2) of the Migration Act 1958 (Cth) to render his application competent. I have power to extend time only if I am satisfied that “it is necessary in the interests of the administration of justice to make the order”.
The applicant’s application has the following explanation for his delay:
The reason for delay was due to my ex‑agent did not provide me the RRT decision on time. She treated me and did not tell me I should apply to the court within 28 days after the decision. I knew this until yesterday.
This unclear explanation was assisted by evidence given orally under oath by the applicant today. As I understood it, his agent travelled on a three month holiday to China, returning on 29 January 2011. Before she left, she had given him documents concerning his appeal, which I find probably included the facsimile copy of the Tribunal’s decision. However, according to the applicant, she told him when he last saw her that the Tribunal’s decision could go either way, and she did not tell him that the application had, in fact, been refused by the Tribunal.
The applicant said that he became anxious about the outcome during the absence of his agent, and took advice from another migration agent about his situation. He said that he showed his documents to the new agent on or about 16 November 2010. His evidence was that on that occasion he was told that the time for appealing to the Court had expired. The applicant said that he was then assisted the following day by a “student” to prepare the documents which were filed in this Court on 17 November 2010.
There were aspects of the applicant’s evidence which, in my opinion, carried a ring of truth, and which I accept, notwithstanding the somewhat confused manner in which they were elicited. There is some doubt in my mind about the suggestion, in effect, that he was not told the outcome of the RRT decision by his agent before she left on her holiday. However, I would give the applicant the benefit of doubts about this, and I accept his account of not appreciating that he had a right of appeal subject to a time limit, until he took advice immediately before the filing of the documents on 17 November 2010.
I am ready to accept that this was the result of either inadequate advising of the applicant by his former agent, or by his honestly misapprehending what was said to him by her, and then not being able to appreciate what was in the documents that were given to him.
Taking into account the relatively short period of the delay, and the conceded absence of any prejudice to the respondent, in my opinion the explanations which I have accepted point towards it being in the interests of the administration of justice to extend time, and I propose to make that order.
I do so taking into account my adverse opinions on merits, which I am about to express. However, in the present circumstances, I do not consider that this should cause me not to allow the application to proceed as a competent application for judicial review.
I have also taken into account all the various considerations which have been adverted to in judgments of myself and my colleagues in relation to the exercise of the power in s.477(2) (see, for example, SZNZU v Minister for Immigration & Anor [2010] FMCA 197, SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, and SZNZI v Minister for Immigration & Anor [2010] FMCA 57).
Turning to the merits of the applicant’s application, I need to explain the reasoning followed by the Tribunal when making its decision.
In its statement of reasons, the Tribunal recounted the history of the matter and the documentary and oral evidence presented by the applicant at its various stages and interviews.
In its “Findings and Reasons”, the Tribunal explained its conclusion “that the applicant is not a genuine Falun Gong practitioner” as a result of “various implausibilities and inconsistencies in the applicant’s evidence”.
The Tribunal identified the applicant’s claims that he had come to the attention of police and had been suspected as a Falun Gong practitioner, that he claimed to have been a leader of a group of Falun Gong practitioners, that he was spotted putting up political posters concerning this, and that his son had suffered discrimination by reason of his known association with Falun Gong. The Tribunal said:
124.The Tribunal’s view in these circumstances is that it would expect the applicant, known to the PSB for being a Falun Gong practitioner, and being still a Falun Gong practitioner, would take the opportunity to escape their persecution in China as soon as the opportunity arose. However, this is not what happened here.
(emphasis in original)
The Tribunal then analysed the applicant’s travel in and out of China, and the dates when he obtained his passport and then his visitor’s visa. The Tribunal noted a number of inconsistencies in the applicant’s evidence as to when he first heard the police were looking for him in China and why. It thought those inconsistencies themselves were indicative of “the contrived nature of these claims”.
However, the Tribunal also said that it “considers the entire premise for the applicant’s travels to Australia to be highly implausible and inconsistent with a fear of serious harm”. In particular, the Tribunal referred to the applicant’s voluntary return to China when he “must have known that there were serious risks facing him in the future if he remained in China” (emphasis in original), and said that this action “serves to thoroughly undermine his claim as being a Falun Gong practitioner in China”.
The Tribunal also thought that it was implausible that in the circumstances claimed by the applicant, he would have been able to return to or leave China in the way he claimed, if he was a known Falun Gong practitioner in his circumstances, and it referred to country information supporting this opinion.
The Tribunal referred to other aspects casting doubt upon the applicant’s credibility. It also considered the photographs which he submitted, and formed the opinion from their contents that they were “not genuine”. It accepted that he had a knowledge of aspects of Falun Gong exercises and principles, but concluded that his claims to have practised Falun Gong and engaged in Falun Gong related activity in China were not credible. It therefore rejected all of those elements in his claims.
The Tribunal considered the applicant’s other documentary evidence, but said:
173.However, given the Tribunal’s adverse credibility findings in respect of the applicant, the independent country information as to the availability of fraudulent and forged official documents in China, and its view that the photos marked “A” are not genuine, and after considering the evidence as a whole, the Tribunal has determined to give no weight to the remaining corroborative evidence in respect of his being a Falun Gong practitioner in China.
174.This is because the Tribunal finds that the March 2010 Summons, the Army Release document, the Penalty Notice‑ Detention Order and Detention Receipt, are either fraudulent or are official documents dishonestly obtained and fraudulently completed. As to the photos, the Tribunal finds that photos “B”, “C” and “D” are either not genuine or not what they are claimed to be.
The Tribunal considered the applicant’s conduct in Australia in participating in Falun Gong practice here. It said that it was not satisfied that he had been attending Falun Gong activities for a purpose other than that of strengthening his claim to be a refugee. It said that it was therefore obliged to disregard that conduct pursuant to s.91R(3).
The Tribunal concluded that it did not consider that the applicant would practise Falun Gong or be involved in Falun Gong related activity should he return to China. It did not consider that there was any evidence to suggest that he was “in any way known to the Chinese authorities as a Falun Gong practitioner here in Australia”. It found that the applicant did not have a well‑founded fear of persecution if he returned to China for a Convention reason.
The grounds of the application are framed as follows:
1.I am a Chinese citizen and FalunGong practicer who has been persecuted by Chinese government. I had been arrested by the corrupted government and police.
2.I can not go back to China since I am very scared to be sentenced.
3.The Chinese government still looks for me if I return. My friends told me not to go back since the police are still looking for me.
These grounds, in effect, assert refugee claims, and do not identify any defect in the Tribunal’s procedures or reasoning which might provide jurisdictional error.
A criticism of the Tribunal is found in what is described as order number 3 as follows:
3.RRT member questioned me at hearing made me feel very up sad. They never trusted me and I do not think they had the right attitude to my application. RRT should grant my application.
Essentially, this complains about the Tribunal member questioning the truth of the applicant’s claims. It does not assert anything, in my opinion, which might find an argument of apprehended bias under principles addressed in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425. Moreover, there is not in the evidence before me any evidence supporting such a ground. No transcript of any of the hearings is in evidence, and I am not satisfied that anything happened at the hearings which might give rise to a relevant apprehension.
A further criticism of the hearing is found in Ground 2 of an amended application filed on 25 January 2011. This states:
2.RRT member did not allow my migration agent to present me at the hearing. In fact, I was unable to express myself clearly due to my limited education background which I believe it was a serious legal error from RRT when processing my case.
I invited the applicant to clarify his complaint about the agent not being allowed “to present me at the hearing”. It is plain that the agent attended with the applicant at all of his interviews and hearings, and was recognised as his representative appointed for the purposes of the proceedings.
Under s.427(6):
427Powers of the Refugee Review Tribunal etc.
…
(6)A person appearing before the Tribunal to give evidence is not entitled:
(a)to be represented before the Tribunal by any other person; or
(b)to examine or cross‑examine any other person appearing before the Tribunal to give evidence.
However, the Tribunal can and does permit representatives to attend as observers, and it may allow a representative to make submissions at appropriate times. It appears to me that this did occur in the present case, as I have explained above.
The applicant, however, complained to me that while the Tribunal was talking to him concerning his marriage details, his agent wanted to say something and the Tribunal cut her off, saying: “I want to hear from the applicant”. This is the only instance of something happening at a hearing which the applicant complained of.
It appears to me that on his own account of this incident, it shows no more than the Tribunal seeking to elicit direct evidence on relevant matters from the applicant himself. If so, in my opinion, its silencing of the agent shows no departure from the procedures which the Tribunal is permitted or required to follow, and provides no evidence of any other jurisdictional error, whether of apprehended bias or otherwise.
The applicant’s amended application otherwise suffers from the same defects as the application by, in effect, inviting the Court itself to decide whether the applicant is a refugee. However, that is not the Court’s function.
No criticism is made by the applicant of the Tribunal’s treatment of the applicant’s corroborative evidence, but I have considered that question. In my opinion, its reasoning is consistent with the authorities recently discussed in Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50.
Considering the material unaided by any legal submissions from the applicant, I am unable to identify any ground of jurisdictional error allowing the Tribunal’s decision to be set aside.
The application should therefore be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 16 March 2011
0
6
0