SZRGT v Minister for Immigration - [2012] FMCA 948

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRGT v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 948

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 425, 476, 476A

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106
Zubair v Minister for Immigration and Citizenship [2008] FCA 217

Applicant:

SZRGT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 612 of 2012

Judgment of:

Barnes FM

Hearing date:

27 September 2012

Delivered at:

Sydney

Delivered on:

27 September 2012

REPRESENTATION

Applicant:

In person

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 612 of 2012

SZRGT

Applicant

And

MINISTER FOR IMMIGRATION & 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 (the Tribunal) dated 22 February 2012 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 (PRC), arrived in Australia on 6 November 2001 as the holder of a student visa. He applied for a protection visa almost ten years later, on 8 July 2011. The application was refused and he sought review by the Tribunal.
In the statement accompanying his protection visa application, the applicant claimed to fear harm in China because his mother was a Falun Gong practioner. He claimed that he was wanted by the Chinese authorities because he had sent his mother information from Australia relating to Falun Gong. He also claimed his mother had been detained by the Chinese authorities for participating in a Falun Gong protest in Beijing in 2001 and that she was mistreated while detained.
The applicant claimed that a summons certificate was issued against him on 2 January 2002 requiring him to return to China and report to the Public Security Bureau (PSB) within two months. In his interview with the delegate he elaborated on his claims that as a result of his mother’s Falun Gong practice his father had been demoted and his mother lost her job, was monitored and harassed, had her phone tapped and was prevented from travel. The applicant claimed that if he returned to China he would be prevented from getting a job and would be monitored by the Chinese authorities as a result of his mother’s practise of Falun Gong and the assistance he had provided to her.
The applicant attended a Tribunal hearing on 18 January 2012 at which he elaborated on his claims. The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal recorded in some detail the claims made by the applicant and the issues the Tribunal raised with him. It put to him concerns about aspects of his evidence, including about the genuineness of documents that he had provided in support of his application and country information suggesting fraudulent and forged documents were prevalent in China. It also put to him that it had concerns about inconsistencies in his evidence and his overall credibility, and explained the basis for those concerns. The Tribunal told the applicant it would write to him inviting him to comment.
After the hearing the applicant provided some further documents in support of his claims, consisting of documents said to be a copy of a Reeducation through Labour decision provided to the Department with a new translation and a different date, a copy of a supporting letter from his mother also provided to the Department but unsigned (unlike the earlier copy) with a new translation, a copy and unattributed translation of a Decision of Reeducation Executed Outside of Reeducation through Labour Institute in relation to his mother dated 9 January 2002, and another document in the same form with the same wording but dated 11 June 2004 and lacking the seal that appeared on the version dated 9 January 2002.
The Tribunal wrote to the applicant pursuant to s.424A of the Migration Act1958 (Cth) and raised with him some 14 matters which, for the most part, were inconsistencies in various aspects of his evidence. The Tribunal detailed the nature and extent of the inconsistencies and their relevance. It gave the applicant the opportunity to respond. The Tribunal received two faxes on the same day from the applicant providing a response. The second fax stated that it superseded the first and the Tribunal took this to be the intended response. In that response the applicant provided explanations for the various concerns raised by the Tribunal.
In its findings and reasons the Tribunal referred to the applicant’s claims that his mother was a Falun Gong practitioner who was detained in China for participating in a Falun Gong protest in 2001, that she was mistreated in detention and that he had sent information about Falun Gong to her from Australia. It recorded that he claimed that this information had been intercepted by the Chinese authorities and hence a summons had been issued against him, so he was wanted by the authorities and feared returning to China.
The Tribunal accepted that the applicant was genuine in his distress about having been separated from his mother for 10 years and that he had a strong desire for her to come and live in Australia. However it observed that, as it had discussed with the applicant at the hearing, the issue for the Tribunal was not whether his mother would suffer persecution in China, but whether there was a real chance that the applicant would suffer persecution if he were to return to China.
The Tribunal was willing to accept that the applicant’s mother was a Falun Gong practitioner. It accepted that the applicant left China when he was 18 and had been in Australia for more than ten years. It also accepted that he had not claimed that he was a Falun Gong practitioner in China, but only that he had performed some of the exercises on occasion with his mother. Notwithstanding that it found the applicant’s explanation of his mother’s practise of Falun Gong unpersuasive, it accepted that in light of his young age when he left China and the time that had passed his description was unlikely to be detailed or accurate. It also accepted that, as a Falun Gong practitioner, his mother would want to leave China and come to Australia to see her son and that the applicant may have made enquiries about how he could assist her to come to Australia.
However the Tribunal found that this was the extent to which it accepted the applicant’s claims. It found the remainder of his evidence to be “too inconsistent and implausible to be credible”. It was willing to accept that the passage of time, the applicant’s age, and the fact he was in Australia at the time of the relevant events could explain some of the inconsistencies, but considered that all of the issues that it listed could not be explained by these factors. On this basis the Tribunal did not accept that the applicant had any genuine fear of persecution if he were to return to China or that there was a real chance of such persecution occurring.
The Tribunal did not accept that a summons was issued against the applicant in 2002 by the Chinese authorities. It had regard to the inconsistencies in his evidence in this respect, including his claims in response to the s.424A letter, and implausibilities in this claim which it detailed.
In particular the Tribunal had regard to inconsistencies in the applicant’s evidence about whether the summons was issued on a particular date on a specific charge of colluding with an overseas Falun Gong organisation and disseminating reactionary material or whether he did not know when or why the summons was issued.
The Tribunal found that the claims in relation to the summons had been fabricated and that the applicant was not a person of interest to the Chinese authorities. The Tribunal also did not accept that the applicant’s mother had been detained as claimed because the applicant’s evidence in relation to this claim “was too inconsistent to be credible”. It referred to his various claims that she was detained for and served three years, or four to five months, or one year, and his evidence about how he knew how long she had been detained. The Tribunal was of the view that the applicant would have been “able to recall with some accuracy” how long his mother had been imprisoned. The Tribunal did not accept his explanation for such inconsistencies. It noted that the explanation he provided in his s.424A response had not been provided at the hearing when the issue was raised as would have been expected.
The Tribunal did not accept that the applicant had sent any Falun Gong material back to his mother in China. It did not accept that his mother would ask him to do this or that he would take the risk of doing so, given what he claimed his mother had been through and knowing that (on his claim) she was being supervised by the PSB. It found his evidence in this respect was inconsistent in circumstances where, given the direct and significant relevance of claims about his own activities, the Tribunal would have expected him to be able to recall them with some accuracy. The Tribunal referred to inconsistencies about what documents were sent to China and whether the materials were received or confiscated and the lack of what the Tribunal regarded as a satisfactory explanation for such inconsistencies.
Having regard to such issues, the Tribunal did not accept that the applicant’s mother lost her job as a result of practising Falun Gong. Nor did it accept that his father was demoted as a result of his mother’s practise of Falun Gong. It found the applicant’s evidence too inconsistent to be credible in the ways in which it detailed.
As indicated, the Tribunal found that the applicant was not a credible witness in light of all these concerns. It reiterated that it did not accept that his mother was detained, that she lost her job, was monitored, harassed and had her phones tapped, that she was prevented from travel, that his father was demoted, or that the family home was raided on any occasion as a result of his mother being a Falun Gong practitioner. Nor did the Tribunal accept that the authorities were interested in the applicant as a result, that the applicant had sent Falun Gong materials to his mother from Australia, that a summons was issued against him as a result, that the Chinese authorities were aware of any conversations the applicant may have had with his mother about Falun Gong or that his mother had been questioned by the authorities about his whereabouts. It did not accept that the applicant would be prevented from getting a job or monitored as a result of his mother’s practise of Falun Gong and his claimed involvement in assisting her.
In light of the Tribunal’s finding that it was willing to accept that the applicant’s mother was a Falun Gong practitioner, it considered whether there was a real chance the applicant would face persecution as a result of this if he returned to China. It had regard to his evidence that his parents were “leading a normal life”, except for restrictions on travel, and that his father remained employed by the PSB. As it had found that the applicant’s parents had no difficulties with the authorities and that the applicant was an independent adult the Tribunal did not consider there was a real chance he would suffer persecution as a result of his mother’s practise of Falun Gong.
The Tribunal then addressed issues in relation to the documents the applicant had provided in support of his application, in particular the documents about his mother’s detention. It expressed concern about the late provision of two copies of a document described as the “Decision of [his mother’s] Reeducation Executed Outside of Reeducation through Labor Institute”, and also the inconsistent evidence about whether or why such documents were not provided to the Department. It also had regard to the fact that both documents had the same wording but had different dates some two years apart, such that they were inconsistent with each other. In addition, neither corresponded with the applicant’s evidence about when his mother was released from detention. Similarly, the two copies of his mother’s “Reeducation through Labour Decision” provided by the applicant had inconsistent translations with two different sentencing dates. Further, one of the statements said to be from his mother was signed while the other was not. The Tribunal considered independent evidence about the prevalence of false and fraudulent documents in China. In light of the Tribunal’s concerns about the documents and this evidence, it placed little weight on the documents. The Tribunal considered the applicant’s evidence as to why his family would not be involved in the provision of fraudulent or forged documents, but in light of its credibility concerns and the fact that the documents could have come from a source other than his family, it did not accept that this overcame its concerns about the documents. Nor did it accept his claim that they must be genuine, otherwise more documents would have been provided.
The Tribunal then dealt specifically with the applicant’s request to contact his mother during the interview with the delegate and at the Tribunal hearing. It stated at paragraph [86]:
The applicant requested both the delegate and the Tribunal to contact his mother in order to confirm his claims. The Tribunal considered this request but concluded that it was not appropriate to do so. In reaching this conclusion the Tribunal considered the potential risk of disclosing information about the applicant’s protection visa application to someone in his home country. It also considered the fact that the Tribunal could not verify who it would be speaking to on the telephone, that it could not be assured that his mother was providing independent evidence to that already provided by the applicant and that even if his mother provided a consistent account of the claimed events this would not overcome the Tribunal’s concerns as set out above.
The Tribunal accepted that the applicant may face language, adjustment and financial difficulties, the disappointment of his parents and difficulties obtaining employment in China and also that he had a strong and genuine desire to remain in Australia. However it considered these difficulties would arise as a result of his having lived in Australia for more than ten years and because he did not complete his studies while here, not because of his mother’s practise of Falun Gong. It did not consider these to be Convention-related claims.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to China now or in the reasonably foreseeable future.
The applicant sought review by application filed in this court on 20 March 2012. In his accompanying affidavit he reiterated his claims to fear persecution. The application itself contains three grounds. The applicant did not elaborate on these grounds in oral submissions. He explained that his migration agent had prepared these grounds. They were, however, addressed in the respondent’s written and oral submissions and the court has considered them. The first ground is that:
RRT and DIAC failed to follow procedural fairness by excluding material witness and evidence from my mom. See Paragraph 86 of RRT decision.
First, insofar as in this ground and his oral submissions the applicant took issue with the delegate’s decision, such a decision is a primary decision. This court has no jurisdiction in relation to a primary decision (s.476(2)(a) of the Migration Act). In any event, even if there was an error in the delegate’s decision, that error would be overcome by the de novo review by the Tribunal (see Zubair v Minister for Immigration and Citizenship [2008] FCA 217).
Insofar as this ground relates to the Tribunal it is apparent from the Tribunal reasons for decision that the applicant asked the Tribunal to contact his mother, apparently by telephone to China, and that he told the Tribunal (and the Tribunal accepted) that he had asked the delegate to do the same. The Tribunal considered this request, but declined to do so.
The Tribunal is not under an obligation to take oral evidence at the hearing from anyone other than the applicant (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118). Furthermore, the Tribunal considered the applicant’s request. As is apparent from its reasons for decision it gave cogent reasons for declining to make a telephone call, including the potential risk of disclosing information about the protection visa application to someone in the home country and the fact it could not verify to whom it would be speaking. Further, if it was his mother, it could not be assured that she was providing independent evidence. Critically, the Tribunal also had regard to the fact that even if the applicant’s mother provided a consistent account of the claimed events, this would not overcome the concerns set out by the Tribunal. The fact that the applicant does not agree with these reasons and would have preferred that the Tribunal run the risk, as he sees it, of informing someone in China of his protection visa claim, does not mean that the Tribunal fell into jurisdictional error in proceeding in this manner.
Having regard to the Tribunal’s findings about the applicant’s oral and written evidence and the documents he provided, its finding that even a consistent account of the claimed events from his mother would not overcome the Tribunal’s concerns was open to it. No jurisdictional error is established in this respect. The applicant was given the requisite opportunity to give evidence and present his case under s.425 of the Migration Act. The Tribunal put various concerns to him under s.424A. I note that even if s.424A(1) did not apply to all of those concerns, that is not indicative of jurisdictional error. It has not been established that the Tribunal failed to accord the applicant procedural fairness in the decision it made in relation to his request that it telephone his mother.
This ground is not made out.
Ground two is as follows:
RRT admits that my mom’s phone is tapped and by this reason, it refused to contact my mom to get support of my claims. While the presumption is contradictory if RRT doesn’t believe that my mother has indeed been persecuted. RRT’s reasoning was illogical and irresponsible. See paragraph 47 RRT decision.
This complaint appears to misunderstand or misstate the distinction between the Tribunal raising issues at the hearing and the findings that it ultimately made. The Tribunal recorded (at paragraph [47]) that it raised with the applicant at the hearing that, given the applicant’s claim that his mother’s phone was tapped, it did not think he would want the Department to call his mother about the protection visa application. However, in its findings and reasons the Tribunal did not accept that the applicant’s mother had her phone tapped as a result of being a Falun Gong practitioner for the reasons which it gave.

The fact that the Tribunal put to the applicant an apparent inconsistency between his claim that his mother’s phone was tapped and his request that the Tribunal or the Department telephone her to clarify his claims does not establish an inconsistency with its ultimate finding. Furthermore, the Tribunal did not decide that it would not contact the applicant’s mother because it believed her phones were tapped. Rather it had regard to the fact that it would not be able to be satisfied that it could verify the identity of the person on the telephone and in that context considered the potential risk of disclosing information about the applicant’s protection visa application to someone in China.
It has not been established that the Tribunal’s reasoning was illogical in such a manner as to demonstrate jurisdictional error, or unreasonable such that no reasonable decision-maker could have reached that decision or applied that reasoning.
This ground is not made out.
Ground three is that the Tribunal “failed to consider the consequence of [the applicant] being implicated for [his] mom’s practice of Falun Gong”. Contrary to this contention, the Tribunal expressly considered whether the applicant might face a well-founded fear of persecution in China by reason of being the son of a Falun Gong practitioner.
Insofar as this is intended to be a claim that the Tribunal failed to consider the consequence of the applicant being implicated in the manner in which he had claimed generally in his application, as the Tribunal rejected the other aspects of the applicant’s claims it was not necessary for it to consider the consequences had it accepted such aspects of the claims. The grounds in the application are not made out.
The applicant raised a number of other issues in oral submissions which the first respondent addressed and which I have considered.
The applicant took issue with the fact that the Department and the Tribunal asked him questions about the practice of Falun Gong, on the basis that he had never said that he was a Falun Gong practitioner and also having regard to the time that had passed since he had been in China and the fact that he did not recall things from that time.
However, having regard to the applicant’s claim that his mother was a Falun Gong practitioner, and what he said flowed from that, it was open to and proper for the Tribunal to ask the applicant questions relevant to his knowledge and experience of Falun Gong. If he had demonstrated some good familiarity with the practise of Falun Gong, that might have tended to lend support to his claims about his mother’s Falun Gong practise.
In any event, I note that the Tribunal accepted that the applicant’s mother was a Falun Gong practitioner, notwithstanding that the applicant’s explanation of her practise was unpersuasive. It is not apparent that the Tribunal misunderstood the applicant’s claims, including the fact that he did not claim that he feared harm as a Falun Gong practitioner himself. This concern does not establish jurisdictional error, either alone or in conjunction with the other matters raised by the applicant.
I make that remark because some of the concerns raised by the applicant could be seen as raising an issue of either actual or apprehended bias. Neither actual bias, in the sense of predetermination, or apprehended bias from the perspective of the hypothetical, fair-minded, reasonable, and appropriately-informed layperson is made out from the kind of questioning in which the Tribunal engaged or otherwise (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).
The applicant complained that the Tribunal did not ask how hard and difficult it had been for him in Australia in the past ten years and the reason that had kept him here. Properly, having regard to the Tribunal’s task, the focus of its review was on whether the applicant would have a well-founded fear of persecution on return to China. In any event, the Tribunal’s account of the Tribunal hearing indicates that the applicant had and took the opportunity to describe his circumstances in Australia. This complaint does not establish jurisdictional error, whether in terms of actual or apprehended bias or otherwise.
The applicant complained that the Tribunal exhibited a lack of empathy in relation to his situation in Australia and also more generally complained that the Tribunal tried to find mistakes in his evidence to prove that he had made up his stories. I take this to be an assertion of actual or apprehended bias. However, bias or apprehended bias is not indicated by testing of an applicant’s claims at a hearing. Nothing in the Tribunal’s account of what occurred at the hearing is supportive of such claim. Nor is this one of those exceptional circumstances in which bias would be established simply by reference to the Tribunal’s reasons. It is not apparent that its fact-finding was conducted in a manner which could result in a reasonable apprehension of bias. Even if aspects of the Tribunal’s questioning were highly specific, or even arguably onerous, that would not suffice to establish a reasonable apprehension of bias, having regard to the role of the Tribunal and the nature of the process it undertook. It has not been demonstrated that the Tribunal acted inappropriately in coming to the conclusion that it did on the basis of such evidence (see SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 per Buchanan J at [82]-[88]).
The applicant also suggested that there was some confusion at the hearing in relation to a translation, in particular, of the expression “uncle” or “uncle-in-law”, and that the Tribunal asked him to clarify in a way that suggested that he was being inconsistent. Insofar as this may be taken as making some assertion of interpreter error, there is no evidence before the court to establish such error. In any event, if the applicant is suggesting that there was some confusion in what he said in this respect, it is not apparent from the Tribunal’s reasons for decision that this particular issue had any consequence or relevance to the Tribunal’s findings. No jurisdictional error is established on this basis.
Insofar as the applicant said that he did not know whether the Tribunal believed his mother was a Falun Gong practitioner, as set out above, the Tribunal proceeded on the basis of accepting that claim. The applicant also said that he believed that he had been or was persecuted indirectly. Insofar as this suggests that he had a fear of persecution as a family member of a Falun Gong practitioner, the Tribunal considered that claim.
Insofar as in this and in other aspects of what he said the applicant took issue with the Tribunal’s factual findings, he seeks impermissible merits review. As I endeavoured to explain to him, merits review is not available in this Court.
In his submissions, both initially and in reply, the applicant took issue with the Tribunal’s failure to accept his explanations and endeavoured to provide further explanations for inconsistencies or issues about his evidence. These claims do not establish jurisdictional error. Credibility findings are a matter for the Tribunal and its findings in that respect were open to it for the reasons which it gave on the material before it.
Insofar as the applicant contended that he did not ask the Tribunal to call his mother to ask her to be a witness, that is, in fact, the effect of the request to the Tribunal to speak to his mother on the telephone. Insofar as he submitted that it was just to ask his mother about Falun Gong to prove she was a Falun Gong practitioner, as indicated the Tribunal accepted that she was a Falun Gong practitioner.
The applicant’s claim that he would have preferred the Tribunal to run the risk of exposing his protection visa application to someone in China does not establish jurisdictional error. Nor does his claim that the Tribunal did not ask him questions about the consequences he was facing in Australia. The applicant expressed concern about the fact that the Tribunal had instead asked him about what he feared on return to China. However, what was in issue for the Tribunal was not whether the applicant had a well-founded fear of persecution or harm in Australia. What the Tribunal had to consider was whether the applicant had a well-founded fear of persecution for a Convention reason if he were to return to China. He did not claim to have engaged in activities in Australia that gave rise to a fear of persecution in China beyond the claim about sending materials back to his mother which the Tribunal considered but found did not occur.
No jurisdictional error has been established on any of the bases contended for by the applicant either in his application or in oral submissions. Accordingly, the application must be dismissed. Before I make the orders, I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the first respondent. The applicant stated that if he had the money, he would pay the costs. Insofar as this may be taken as raising an issue about lack of funds, that is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the respondent. 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 reasonable and appropriate in light of the nature of this and other matters.
ORDERS DELIVERED

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Date: 16 October 2012