SZTLY v Minister for Immigration

[2014] FCCA 2543

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2543

Catchwords:
MIGRATION – Review by Refugee Review Tribunal (Tribunal) – whether Tribunal considered applicant’s evidence objectively and independently – no jurisdictional error.

Applicant: SZTLY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2686 of 2013

Judgment of: Judge Manousaridis

Hearing date: 23 April 2014

Delivered at: Sydney

Delivered on: 7 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms A. Wong

DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2686 of 2013

SZTLY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the People’s Republic of China, applied for a protection visa. He claimed he feared persecution in China because he is a Falun Going practitioner. At the time he applied for a protection visa, the applicant also claimed he feared harm from a person from whom the applicant borrowed money.

2. A delegate of the first respondent refused to grant the applicant a protection visa, and the second respondent (Tribunal) affirmed the delegate’s decision. The Tribunal affirmed the delegate’s decision because the Tribunal found the applicant was not a witness of truth.[1] The Tribunal found that, because the applicant said the loan was repaid, the applicant no longer relied on a claimed fear of harm from the person he borrowed money.[2]  

   [1] CB91, [26]

   [2] CB91, [28]

3. The applicant, who is not legally represented, now claims the decision of the Tribunal should be set aside. Before I consider the grounds on which the applicant relies, it will be necessary to set out the grounds on which the applicant claimed protection, and the Tribunal’s reasons for affirming the delegate’s decision.

Applicant’s claims for protection

1. The asserted facts on which the applicant relied before the Tribunal for protection are as follows.[3] He was introduced to the practice of Falun Gong in China in 2005. On 13 August 2006 he was detained as he gathered to practice Falun Gong, and was compelled to watch a brain-washing video. Additionally, the applicant borrowed money from a former boss; that loan was recorded in a loan agreement; the boss added “0” to the amount recorded in the agreement as having been lent to the applicant; the boss involved the police in his attempt to recover the money from the applicant; and the applicant hid at his friend’s home for several months. After his arrival in Australia under a Subclass 580 Student Guardian visa (Student Guardian visa), the applicant practised Falun Gong in freedom.

   [3] CB88, [10]

2. At the hearing before the Tribunal, the applicant provided two untranslated documents.[4] One purported to be an arrest certificate issued by the Public Security Bureau relating to the detention of the applicant on 13 August 2006. The other document was a receipt issued to the applicant for the payment of RMB200,000. The applicant did not claim before the Tribunal that he will be harmed in China because of his debts or any financial dispute.[5]

   [4] CB88, [14]

   [5] CB91, [28]

Tribunal’s reasons

1. As I say above, the Tribunal found the applicant was not a witness of truth. First, although the applicant displayed some knowledge of Falun Gong, his knowledge about the practice and fundamental principles of Falun Gong was superficial; and he did not attend any practice site on a frequent and regular basis.[6] Second, the applicant said to the Tribunal that Mr Liang Wang, the person at whose home the Falun Gong gathering of August 2006 took place had been imprisoned for six months, whereas, in the written statement the applicant submitted when applying for a protection visa, he stated that Mr Liang Wang was sentenced to prison for 8 years.[7] Third, in an interview with a compliance officer on 23 April 2013, before the date on which the applicant applied for a protection visa, the applicant did not state he was a Falun Gong practitioner.[8] Fourth, the Tribunal did not accept the applicant was a person of interest to the police in China at the time he left China.[9] The Tribunal in particular relied on the applicant’s having submitted a “clear Police Clearance” from the Chinese authorities to the Minister when he applied for a Student Guardian visa.

   [6] CB90, [22]

   [7] CB90, [23]

   [8] CB90, [24]

   [9] CB90-91, [25]

2. The Tribunal concluded the purported arrest certificate did “not overcome the significant difficulties that the tribunal has in relation to the applicant’s credibility overall”.[10] This can only be reasonably interpreted as a finding that the Tribunal was not satisfied the document was genuine. The Tribunal relied on three grounds. First, the applicant did not produce the arrest certificate at the time of application or at the time he was interviewed by the delegate. Second, independent evidence available to the Tribunal indicated that fraudulent documents are widely available and frequently used in China. Third, when the Tribunal questioned the applicant about the availability of fraudulent documents in China, the applicant stated that the “clear Police Certificate provided to support his Student Guardian visa application in China was not and could not have been genuine”.[11]

   [10] CB91, [26]

   [11] CB91, [26]

Grounds of application

1. The following are the grounds of application stated by the applicant in his application for review:

   Tribunal made a Jurisdictional error by failing [to] consider my evidence objectively and Independently. RRT member rejects my true story as fabrication.

2. At the hearing, the applicant submitted that throughout the whole process before the Tribunal the applicant was not believed he was a Falun Gong practitioner. He said he could not see the relevance to his case of what the Tribunal said about his daughter or about Mr Liang Wang.

3. In my opinion, there is nothing in the Tribunal’s reasons, or in any of the material that is before the Court, which suggests the Tribunal failed to consider the applicant’s evidence objectively and independently. The Tribunal, in its reasons, records that it asked the applicant questions about his claims, and sets out the reasons why the Tribunal did not accept the applicant was a witness of truth. It was reasonably open to the Tribunal not to accept the applicant as a witness of truth for the reasons the Tribunal gave.

4. I do not accept the applicant’s submission that it was irrelevant to the task the Tribunal had to perform for the Tribunal to refer to Mr Liang Wang. The relevance of Mr Liang Wang is that the applicant made inconsistent statements about the terms for which Mr Liang Wang was sent to prison. It was reasonably open to the Tribunal to consider those inconsistent statements as adversely affecting the credibility of the applicant.

5. The applicant’s reference to the Tribunal’s questioning him about his daughter appears to relate to the matters the Tribunal set out in paragraph 19 of its reasons. In my opinion, it was open to the Tribunal to ask questions about that matter as being at least potentially relevant to the applicant’s claims. Even if the matters were irrelevant, the Tribunal did not rely on them in concluding the applicant was not a witness of truth; and on any view, they were not matters on the basis of which a decision-maker could reasonably rely to find the applicant was not a witness of truth.

Other matters

1. At the hearing, the applicant claimed that his migration agent “messed up” his case. First, the applicant seemed to suggest that his agent failed to provide the arrest certificate until the hearing before the Tribunal, thus implying that the applicant did not provide the arrest certificate earlier because of advice the applicant received from his agent. Second, the applicant claims that the agent incorrectly prepared the statement the applicant submitted in support of his application for a protection visa. As I understood the applicant, he said that he intended to state he was in hiding for six months, but instead, the statement said he was in hiding for eight years. The applicant said it was somebody else who was in hiding for eight years.

2. In my opinion, even if I accept as true what the applicant says about his agent that would not give rise to any ground for setting aside the decision of the Tribunal. The applicant does not allege fraud; and no fraud can reasonably be inferred from what the applicant alleges.

3. In any event, the applicant informed the Tribunal he did not produce the purported arrest certificate earlier because “he was told by his migration agent that the documents could be brought to the hearing and they would be translated by the tribunal”.[12] This does not amount to a statement to the effect that the applicant did not produce the document earlier because he was advised by his agent not to provide the document. And to the extent that the applicant intended to so state, that was a matter for the Tribunal to consider when assessing the applicant’s credibility.

   [12] CB88-89, [15]

4. Further, I cannot accept that the statement the applicant submitted in support of his application for a protection visa contained the error the applicant claims it contains. Although the statement refers to the applicant being in hiding, it states the applicant was in hiding in his friend’s house “for several months”.[13] It does not refer to the applicant being in hiding for eight years.

   [13] CB40

Conclusion and disposition

1. The applicant has not demonstrated the Tribunal made a jurisdictional error, or that there is any other reason for setting aside the Tribunal’s decision. I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  7 November 2014