SZQEZ v MINISTER FOR IMMIGRATION & ANOR - [2011] FMCA 816

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQEZ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 816

MIGRATION – Application to review decision of the Refugee Review Tribunal not to grant a protection visa - no jurisdictional error.

Migration Act 1958 (Cth), ss.420, 424AA, 425

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

Applicant:

SZQEZ

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 869 of 2011

Judgment of:

Barnes FM

Hearing date:

5 October 2011

Delivered at:

Sydney

Delivered on:

5 October 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed
The applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 869 of 2011

SZQEZ

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 5 April 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in June 2010 and applied for a protection visa in July 2010. He provided a statement in support of his application and elaborated on his claims at an interview conducted by the delegate. In essence, the applicant claimed to fear harm in the People’s Republic of China because he was a Falun Gong practitioner. He claimed he had suffered persecution from the Chinese government for such practice.

He claimed he first started practising Falun Gong in 1997 after being taught by his aunt and cousin. After the government cracked down on Falun Gong, he and his cousin were arrested when the authorities located the cousin (who was under investigation) hiding at the applicant’s house. He claimed the cousin and her husband received significant gaol terms, but that he was released after the police beat him and injured his leg.
The applicant claimed he took up Falun Gong again in early 2009 for its health benefits. He claimed that in February 2010 he was arrested at a friend’s home with other practitioners, detained for 15 days, and released after paying a fine and being forced to sign a guarantee that he would cease practising.
He claimed that after he absconded from a tour group in Australia, the Chinese authorities went to his home in China and questioned his wife.
A delegate of the first respondent rejected the applicant’s claim to be a Falun Gong practitioner, finding that he was not a witness of truth and that there were contradictions between his claims in his written statement and his claims at interview, that he had embellished his testimony and that he showed a lack of knowledge of the main Falun Gong texts.
The applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing held on 8 March 2011. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal summary in its reasons for decision.
It appears from the Tribunal’s account of what occurred in the Tribunal hearing that it raised with the applicant a number of significant issues of concern, including the extent of his knowledge of Falun Gong beliefs and practices. It is also apparent that the Tribunal put certain information to the applicant in apparent reliance on s.424AA of the Migration Act 1958 (Cth) (the Act).
In particular, the Tribunal raised with the applicant matters such as inconsistencies between his written statement and his oral evidence to the Department, issues about his lack of knowledge of Falun Gong and independent country information about what would be expected of a genuine Falun Gong practitioner, other matters of concern about his evidence and the new claims that he raised, his ability to depart China legally and the fact that he had not practised Falun Gong in Australia.
I note, relevant to the grounds that the applicant relies upon, that the Tribunal recorded that near the start of the hearing it asked the applicant if he had “brought any documents along with him that he wanted the Tribunal to look at” and that his reply was that it was “difficult to get the documents from overseas as they have a very strict checking process regarding mail, and it was difficult for him to get the documents through the post”.
The Tribunal also recorded that at the end of the hearing, after it had put to the applicant inconsistencies in his claims about when he was arrested and the Tribunal’s concerns and the consequences of its concerns, the applicant said he would “try to get documents to the Tribunal”. The Tribunal referred to the fact that he had said that to the Department, but that nothing had arrived in nearly five months. The applicant was recorded as responding that “it is difficult because it is too risky”. The Tribunal said that it was “always going to be risky”, and he said “he would try”.
The applicant indicated that he wished to respond in writing to the concerns raised by the Tribunal at the hearing. The Tribunal allowed him three weeks to respond to the s.424AA information, that is until 29 March 2011. The applicant provided a written response to the Tribunal dated 10 March 2011, together with some supporting documents.
In its reasons for decision, after referring to independent country information about the practice of Falun Gong and what would be expected of genuine Falun Gong practitioners, the Tribunal summarised in considerable detail the claims made by the applicant in relation to his practice of Falun Gong and the events that he said had occurred in China. It set out his claims about how he started to practise Falun Gong; his initial detention and the injury in which he claimed his fibula was broken, that he went to a hospital where his leg was x-rayed, and attended a small local clinic and obtained medicine; that his cousin and her husband were sentenced to 10 years’ imprisonment, the details of which he provided; that he travelled to Japan in December 2008 and returned to China in the same month; and that he started to practise Falun Gong again in 2009 with his friends and studied the lectures at home. It also set out his claims about having been detained on 28 February 2009 for 15 days and fined and that he had come to Australia in June 2010 and noticed Falun Gong practitioners could practise in public but that he had not joined any group or practised Falun Gong in Australia. It also recorded his claim to fear harm if he returned to China and that the tour leader had reported his absence and the police had checked with his wife.
The Tribunal then considered the applicant’s claims. It set out matters of concern to it, including the fact that at the Departmental interview the applicant did not know the name of any of the Falun Gong books and that he had demonstrated limited knowledge at the Tribunal hearing, that he was not able to give the name of all of the five main exercises, that while he said he used to practise the fifth exercise he was unable to do that exercise and was not able to give complete answers in relation to how he applied the moral formula, truth, compassion and forbearance in his life. It had regard to independent country information from an expert on Falun Gong in relation to the factors to be taken into account in determining whether a person was a genuine Falun Gong practitioner.
The Tribunal had regard to but did not accept the applicant’s explanations for his lack of knowledge. In particular, the Tribunal did not accept that the applicant’s lack of knowledge was due to the time he had been away from Falun Gong. The Tribunal found the applicant’s answers to the questions about Falun Gong beliefs and practices indicated that he was not a genuine Falun Gong practitioner. It also had regard to the fact that his evidence was that he had not practised Falun Gong in Australia. It rejected his claims of being a Falun Gong practitioner and found that he was not a Falun Gong practitioner and had never practised Falun Gong. It did not accept his claims made in association with his claims of practising Falun Gong.
The Tribunal also had regard to differences between the information about the applicant's employment provided in his application for a business short stay visa and in his protection visa application about his employment. This was said to place his credibility in issue.
The Tribunal considered the claim made at the Departmental interview that the applicant “absconded from his tour group after he arrived in Australia” and that his wife was questioned thereafter as to his whereabouts. It found his evidence was “vague and did not provide any detail about the tour group and what happened”. While the Tribunal accepted that the authorities rang the applicant’s wife because he had left the tour group, it did not accept that this was for any other reason, noting that the applicant had not specifically raised any other reason. The Tribunal did not accept the applicant’s claim raised in the post-hearing response about the threatened confiscation of his properties, finding it to be an exaggeration of his claims. The Tribunal found that the applicant did not have a well-founded fear of persecution for leaving his tour group as there was no risk of Convention related harm arising on this basis.
The Tribunal also had regard to the fact that the applicant had obtained a passport in his own name and had departed freely from China, and that he did not seek protection in Japan, even though his visit to Japan was after he claimed he had been in trouble with the authorities.

It found that the fact that he did not seek refugee protection in Japan placed his credibility in issue.
The Tribunal also had regard to the fact that the applicant had not practised Falun Gong in Australia. It considered his explanation that it was “difficult for him to do so” and that he did not have the opportunity because he had to “work to make a living”, but was of the view that he could practise Falun Gong at home. It found that while the applicant had indicated that he had practised Falun Gong despite how hard the situation was, this has proven to be incorrect on his own evidence.
The Tribunal found that the applicant was not a Falun Gong practitioner of any description, that his written statements had exaggerated his claims and that he was not a credible witness.
The Tribunal considered the two “Release Notices” provided by the applicant after the hearing (which appeared to relate to persons other than the applicant, presumably his cousin and her spouse) but, having regard to its findings regarding the applicant’s adverse credibility, the Tribunal gave those documents no weight.
The Tribunal concluded that the applicant’s evidence was not credible and that it did not accept his claims, including that he was a Falun Gong practitioner who had been arrested twice and that his cousin was a practitioner. It found that he had no fear of persecution for reasons of family membership.
The Tribunal also rejected the applicant’s claims about being provided with Falun Gong related materials which he studied in China, that he was detained, forced to write a guarantee letter or lost employment as a result of his claimed practice. It found there was no claim of persecution for reasons of religion or membership of a particular social group or denial of human rights and that the applicant and his family were not under surveillance. It rejected his claim to be “imputed both as a sympathiser and practitioner” of Falun Gong or that he was persecuted on that basis.
The Tribunal stated that in coming to its findings it had had regard to the applicant’s evidence that he was “only a beginner” and that it had assessed his knowledge and practice on that basis. It had regard to the residence record cards and marriage certificate for his cousin and her husband, but as a result of all its findings was not satisfied that the applicant faced a real chance of persecution should he return to China now or in the foreseeable future.
As the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for any Convention-related reason it affirmed the delegate’s decision.
The applicant sought review by application filed in this court on 4 May 2011. There are two grounds in the application. The applicant appeared to raise additional grounds in written and oral submissions.
I will consider first the grounds in the written application as elaborated on in submissions. The first ground in the application asserts that the Tribunal made an error in not being satisfied that there was a “real chance [the applicant] will suffer serious harm for reasons of [him] being a Falun Gong practitioner or for any other Convention reason”. No particulars were provided in the application. However, in written submissions the applicant contended that the Tribunal “failed to consider whether [he] will face persecution as a Falun Gong practitioner if [he] return back to China” (sic) and in those circumstances failed to consider an aspect of his claim. It was said that the Tribunal should have asked whether he would, as claimed, “continue to practise Falun Gong” if returned to China and, if so, whether there was a “real chance [he] would be persecuted as a result”.
The first difficulty that faces such a contention is that it has not been established that the Tribunal failed to consider any integer of the applicant’s claims. The Tribunal’s detailed account of the applicant’s oral evidence to the Department and to it and its summary of his claims is to the contrary. It indicates that all the integers of the applicant’s claims were considered, including matters that the applicant had not necessarily raised as a basis for a protection visa, such as his claims about his wife being contacted by the authorities after he had absconded from a tour group.
In relation to the issue of whether the applicant would face persecution as a Falun Gong practitioner if he returned to China, the Tribunal specifically rejected, for the reasons which it gave, the applicant’s claims that he had ever practised Falun Gong, that he was a Falun Gong practitioner, that he would be imputed to be a Falun Gong practitioner, or indeed, that he had any fear of persecution for reasons of family membership with a person who was said to be a Falun Gong practitioner. It also expressly rejected the applicant’s claims to be imputed as a sympathiser (as well as a practitioner) of Falun Gong.

In these circumstances the Tribunal did not fail to consider whether the applicant faced a real chance of persecution. Having expressly rejected all his claims to have been a Falun Gong practitioner, it was not necessary for it to consider whether he would “continue” to practice Falun Gong if he returned to China. More generally, the Tribunal did consider whether the applicant faced a real chance of persecution should he return to China now or in the foreseeable future.
Insofar as this ground may be taking issue with the Tribunal’s factual findings, it seeks impermissible merits review. The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was, as submitted for the first respondent, a matter for the Tribunal to assess as part of its fact-finding function. Similarly, the Tribunal’s conclusion that the applicant was a not a credible witness was a finding for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). It has not been established that the Tribunal’s findings were not open to it for the reasons which it gave on the material before it and the court cannot review the merits of the Tribunal’s decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6). Ground 1 is not made out.
Ground 2 is that the Tribunal was “not satisfied that [the applicant] was a person to whom Australia has protection obligations under the Refugees Convention” but that it “did not refer to any independent information for the consideration of [his] application” and “failed to carry out its statutory duty”.
This claim fails on a factual basis. It is apparent from the Tribunal’s reasons for decision that it clearly referred to a number of items of independent country information which it set out in its reasons for decision and specifically referred to in its findings and reasons (including a reference to the official banning of Falun Gong in July 1999 from Human Rights Watch 2002, and to the applicant’s lack of knowledge assessed from the perspective of an expert academic in relation to determination of whether an applicant was a genuine Falun Gong practitioner). The Tribunal also had regard to the applicant’s knowledge of Falun Gong practices and exercises in light of country information in that respect. The choice and assessment of country information was a matter for the Tribunal. It has not been established that the Tribunal erred in the matter contended for in ground 2 of the application.
I note also that insofar as the applicant takes issue with the choice of country information, there is nothing before the court to suggest that the applicant put any contrary country information before the Tribunal. No error is apparent on this basis. Ground 2 is not made out.
In his written submissions the applicant also raised what he described as the “reasonable notice issue”. In that context, he alleged that the Tribunal failed to comply with s.420(1) of the Migration Act, which provides that the Tribunal must, in carrying out its functions under the Act, pursue the objectives of providing a mechanism of review that is fair, just, economical, informal and quick. The applicant claimed that the Tribunal “should have given [him] a fairly and just chance to review [his] case” (sic) under this section.
First, it is well-established that a failure to comply with s.420 of the Act does not of itself amount to a jurisdictional error (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [77] per Gaudron and Kirby JJ). Moreover the general contentions that the applicant makes do not establish jurisdictional error on any other basis.
Insofar as reference is made to reasonable notice, it is not clear whether this is intended to go beyond a reference to s.420 of the Act. However in oral submissions the applicant took issue with the fact that he had been unable to provide documentary evidence to the Tribunal.

He contended that the Tribunal had been unfair to him and had treated his case in a careless way.
He claimed that at the hearing he had been waiting for certain evidence that had not been sent to him, but that when it arrived the Tribunal had already made its decision. It is apparent from the Tribunal account of what occurred at the hearing, as set out above, that the Tribunal raised with the applicant the issue of whether he had any documents and he said he would try to get them to the Tribunal.
Insofar as he may be now contending that the Tribunal fell into error in not allowing him extra time to provide such documents, the Tribunal’s account of the hearing does not establish that the applicant sought an adjournment or further time. Rather, he raised generally the difficulty of obtaining documents from China.

Morevoer in the applicant’s post-hearing written response to information put to him under s.424AA of the Act, there is no request for additional time to provide documentation. In fact the applicant did provide some supporting documentation with that letter.
The material before the court is not such as to establish that the Tribunal fell into jurisdictional error in relation to any issue as to the conduct of the hearing or any extension of time.
The applicant also took issue with the fact that the Tribunal made a decision after conducting only one hearing and without any other proof, which the applicant regarded as careless. The Tribunal’s obligations to afford procedural fairness to an applicant, including as specified in Division 4 of Part 7 of the Act, have not been shown not to be satisfied.
In particular, the Tribunal invited the applicant to a hearing in accordance with s.425 of the Act. There is no evidence to suggest that the Tribunal failed to raise dispositive issues with him, or that any fresh issues arose thereafter such as to necessitate any further hearing. I note that in the course of the hearing, the Tribunal raised with the applicant issues under s.424AA of the Act. He was given and took the opportunity to respond in writing.
It is for an applicant to establish his case, not for the Tribunal to be put to proof or disproof as the applicant appeared to contend.

No jurisdictional error is established on this basis.
Insofar as the applicant’s contentions in relation to unfairness or carelessness on the part of the Tribunal in this or any other respect may be seen as raising allegations of either actual or apprehended bias, such claims are not made out (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). Neither actual nor apprehended bias are indicated merely by adverse findings. This is not a case in which it can be said that the fact-finding was conducted in a manner which could result in a reasonable apprehension of bias. More generally, seen from the perspective of the appropriately informed hypothetical, fair-minded reasonable lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct in question, the manner in which the Tribunal conducted the review or the hearing or made its findings is not such as to give rise to any concern that the observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided. Neither actual nor apprehended bias is made out.
The applicant also contended in oral submissions that he felt stressed and depressed whenever he went into a court or Tribunal. He provided this as an explanation for the difference between his answers and what he had written. He also said that his memory had deteriorated. I take this to be proffered as something of an explanation for the inconsistencies between the applicant’s written evidence and his oral statements to the Department and also for the inadequacies and inconsistencies identified by the Tribunal in his oral evidence to the Tribunal.
First, there is no evidence that the applicant raised with the Tribunal any concerns about his fitness to participate in the Tribunal hearing or indeed that he provided his mental state as an explanation for his failure to recall particular matters in relation to Falun Gong or for inconsistencies in his claims.
The applicant is recorded as having indicated that he failed to remember things, that he was a victim of Falun Gong and that he had studied Falun Gong a long time ago and this was why he could not recall things. The Tribunal considered, but did not accept, those and other explanations.
There is nothing in the Tribunal account of the delegate’s interview or of the Tribunal hearing to support any contention that the applicant was not in a position to take advantage of the opportunity he was afforded to give evidence and address issues in relation to his application for a protection visa or issues arising in relation to the decision under review.
There is no reference in his post-hearing letter to the explanation that he now gives in response to the Tribunal’s concerns raised with him at the hearing. His complaints in this respect do not establish jurisdictional error.
The applicant also raised the fact that he did not keep photographs of his injuries or an x-ray, but claimed that he was nonetheless telling the truth. As indicated, credibility issues are matters for the Tribunal as the fact-finder and merits review is not available in this court. The disagreement that the applicant has with the Tribunal’s findings is not such as to establish jurisdictional error. I note that in its findings and reasons the Tribunal did not place any reliance on the absence of an x-ray or medical evidence, although at the hearing it had raised with the applicant some inconsistencies in his claims as to whether he was hospitalised and what occurred after the alleged injury. The Tribunal’s consideration of these issues is not such as to establish jurisdictional error.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.
The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,500, which is considerably less than the amount provided for in the Federal Magistrates Court Rules. The applicant told the court that he did not have any money and was unemployed. However his lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 19 October 2011