SZRPZ v Minister for Immigration
[2012] FMCA 904
•26 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRPZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 904 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A |
| Applicant: | SZRPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1486 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 26 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Weston Minter Ellison |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1486 of 2012
| SZRPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 4 June 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China (Tianjin) and had made claims of persecution based upon his asserted practice of Falun Gong. He arrived in Australia on 25 June 2011. He applied to the Minister’s Department for the protection visa on 16 September 2011. That application was refused by the delegate on 16 December 2011.
On 30 January 2012 the applicant sought review of that decision by the Tribunal. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing. That hearing was conducted on 8 May 2012. The Tribunal tested the applicant on his knowledge of Falun Gong and the practice of it. The Tribunal found that the applicant lacked significant knowledge about Falun Gong.
The applicant had claimed to have been detained in a labour camp on account of his Falun Gong practice. At [40] of its reasons[1], the Tribunal records that it asked the applicant whether his wife in China could verify his account that he was so detained. The applicant responded that she could and gave the Tribunal her telephone number. It is apparent from the Tribunal’s reasons that the Tribunal thereupon telephoned the applicant’s wife who answered and agreed to provide evidence. The difficulty for the applicant was that his wife contradicted his evidence about his detention.
[1] court book (CB) 142
Following the hearing on 9 May 2012, the Tribunal wrote to the applicant inviting comments on adverse information. The Tribunal specifically invited comment on his wife’s evidence which contradicted his own. The Tribunal also invited comment on difficulties it had with the applicant’s own evidence. The applicant responded by letter dated 29 May 2012. The text of that letter is reproduced at [47] of the Tribunal’s reasons[2]:
[2] CB 145
I would like to comment on information as requested. During the interview, my wife gave information of my experiences in China. Some of my wife’s answers were inconsistent with mine and actually, her answers were inconsistent with the reality. Since beginning of 2008, my wife suffered from mental illness due to my arrest; living pressure and harassment from police. When she’s under pressure, she would make things up in her own mind. We didn’t realise that her symptom is an illness until 2008. We went to hospital and she was diagnosed with mental disorder.
I don’t think my wife’s answer can be taken as evidence.
About my Falun Gong knowledge, I have explained during the hearing to RRT member that I practice Falun Gong as Qi Gong. I didn’t read Falun Gong’s book until I came to Australia. It’s impossible to have a Falun Gong book in China.
Essentially, the applicant asserted that his wife was not in a fit state to give evidence and her evidence should be disregarded because of the claimed mental disorder. The Tribunal had regard to country information concerning Falun Gong but essentially the Tribunal’s decision turned on adverse credibility findings the Tribunal made about the applicant’s claims based on his own evidence and that of his wife. The Tribunal did not accept the applicant’s claim that he is a Falun Gong practitioner either in China or Australia. The Tribunal’s reasons for that conclusion are detailed at [61] of its reasons[3]. The Tribunal noted that the applicant’s wife corroborated his claim to have practised Falun Gong privately, however, the Tribunal gave the applicant’s wife’s evidence no weight in that regard. The Tribunal concluded that the applicant would not face serious harm in China on account of his asserted Falun Gong practice should he return there.
[3] CB 148-150
These proceedings began with a show cause application filed on 9 July 2012. The applicant now relies upon an amended application filed on 3 September 2012. There are four grounds in that application:
1. The Refugee Review Tribunal did not ask the wife of applicant whether she was suitable for providing evidence, or there were any factors the Tribunal had to take into account before giving oral evidence.
2. The Tribunal made its decision mainly based on the oral evidence provided by the wife of applicant. Therefore, the Tribunal failed to carry out its statutory duty.
3. The applicant claimed to have practiced Falun Gong in Australia since his arrival in June 2011, which gave rise to a potential sur place claim.
4. The Tribunal made no findings about whether or not this occurred, not findings about the potential application of section 91[R], and no findings about whether or not, if it did happen, it gave rise to a real chance of persecution.
I received as a submission the applicant’s affidavit which was filed with his original application on 9 July 2012. I have before me as evidence the court book filed on 22 August 2012.
It is clear from the Tribunal’s findings that the applicant gave a very poor impression as a witness before the Tribunal. From my reading of the Tribunal’s account of what occurred at the hearing it appears that there were significant problems in the applicant’s evidence on the basis of internal inconsistency and implausibility.
The applicant made various claims from the bar table in his oral submissions before me today. Those claims created the impression of someone who makes claims opportunistically. The applicant asserted, for example, that his wife not only has mental problems but also suffers from physical disabilities because of menopause and a hysterectomy. He claimed to have given the Tribunal a medical certificate relating either to his wife’s physical or mental problems. In response to a question from me as to when that was given he said it was provided with the response to the invitation to comment. That response is reproduced in the court book at page 130. I had the interpreter read the text of that response to the applicant. There is no reference in that letter to the applicant’s wife suffering any physical disability and neither is there any reference to any corroborating evidence of a disability, either mental or physical. As was pointed out by the Minister’s solicitor, the fax line at the bottom of the page indicates that only a one page document was sent to the Tribunal, namely, the letter.
The Tribunal in its reasons noted that it had no medical evidence to corroborate the applicant’s assertion that his wife suffers from a mental disability[4]. There is no indication in the Tribunal’s account of the evidence given by the applicant’s wife at the hearing that any difficulty was apparent at that time. The applicant conceded that he did not raise any objection to the Tribunal contacting his wife notwithstanding her asserted mental and physical disabilities. In my view, the Tribunal was entitled to obtain evidence from the applicant’s wife.
[4] at [61] CB 149
The applicant’s attempt to explain away her contradiction of his critical claims was implausible and was seen to be implausible by the Tribunal. To the extent that the applicant’s wife corroborated anything asserted by the applicant, the Tribunal was entitled to give that no weight. The applicant asserts that he had a sur place claim and implies that this was not dealt with by the Tribunal. It is true that the applicant claimed to have practised Falun Gong both in Australia and in China. Both aspects of the applicant’s claims were considered by the Tribunal and rejected.
The applicant’s claims about his practice in Australia were discussed at [38] of the Tribunal’s reasons[5]. As noted above, the reasons for comprehensively rejecting those claims are set out at [61] of its reasons[6].
[5] CB 142
[6] CB 148-150
The applicant appears to complain that the Tribunal failed to make necessary findings pursuant to s.91R of the Migration Act 1958 (Cth) (the Migration Act). That assertion is unfounded. The Tribunal rejected the applicant’s factual assertions. The Tribunal did not believe that the events asserted by the applicant happened. Having rejected the applicant’s factual claims there was no need for the Tribunal to consider whether those asserted events involved the applicant suffering serious harm and, if so, whether there was any Convention nexus to that harm.
The applicant also asserts in his affidavit that the Tribunal failed to consider his application in accordance with s.424A of the Migration Act. I am satisfied, however, that the Tribunal met its obligations under that section it its detailed letter to the applicant dated 9 May 2012.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $4,300. Scale costs in this instance would be $3,239. The applicant was not in a position to make any submissions on costs.
The Minister’s solicitor and own client costs accede $5,700. However, no written submissions were prepared and the evidence is limited to that contained in the court book. Were it not for the amended application filed on 3 September 2012, I would not be minded to depart from the Court scale.
It is apparent that that amended application was prepared with some professional assistance or advice. The correspondence file records that the applicant received advice under the Minister’s panel advice scheme from Mr Julian Gormly on 14 September 2012. That was after the amended application was prepared and filed. I infer that the amended application was prepared with the assistance of someone other than the panel adviser.
The four grounds in the amended application required consideration by the Minister’s solicitors. The Tribunal hearing was somewhat unusual in that the Tribunal took evidence by telephone from the applicant’s wife in China which turned out to be highly significant. It was appropriate for careful consideration to be given to the question whether any legal issue arose in the light of the manner in which the Tribunal proceeded. I was assisted by the submissions made by the Minister’s solicitor.
In all the circumstances, I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 27 September 2012
0
0
2