WZANV v Minister for Immigration

[2009] FMCA 944

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANV v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 944

MIGRATION – Review of RRT decision – applicant a citizen of China who claimed persecution on the ground of his adherence to Falun Gong – where Tribunal considered inconsistency between applicant’s statements and his written statement provided with his PVA – where applicant assisted in his application by migration agent, Mr Lu – whether Tribunal overlooked applicant’s complaints regarding his migration agent – where applicant claimed that Tribunal had constructive knowledge of other cases which had criticised Mr Lu’s conduct – where Tribunal considered that applicant’s knowledge of Falun Gong could easily be acquired from the internet – whether this was “information” required to be put to the applicant.

Migration Act 1958 (Cth), s.424A

SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
SZHMK v Minister for Immigration & Anor [2006] FMCA 1370
SZJWV v Minister for Immigration & Anor [2007] FMCA 612
SZKQO v Minister for Immigration & Anor [2007] FMCA 1275
SZMSX v Minister for Immigration & Anor [2009] FMCA 324
SZEHN v Minister for Immigration [2005] FCA 1389
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant: WZANV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 104 of 2009

Judgment of: Raphael FM

Hearing date: 22 September 2009

Date of Last Submission: 22 September 2009

Delivered at: Perth

Delivered on: 22 September 2009

REPRESENTATION

Counsel for the Applicant: J.L. Cameron

Counsel for the Respondents: P.J. Hannan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs in the amount of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 104 of 2009

WZANV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 28 February 2008 and on 5 March 2008 applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 30 April 2008, following an interview, a delegate of the Minister refused to grant a protection visa. On 2 June 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant was assisted in his application to the Tribunal by a Dr Lin, who also gave evidence on his behalf. The applicant attended a hearing before the Tribunal and the Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”), letters to which the applicant responded. On 28 May 2009 the Tribunal determined to affirm the decision not to grant the applicant a protection visa.

2. The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose out of his association with, and adherence to, Falun Gong.  The applicant claimed that he commenced practicing Falun Gong in 1997.  He said that at the time he was suffering from a number of medical ailments and that the practice of Falun Gong was extremely beneficial.  He said that on 20 July 1999, following the proscription of the organisation by the Chinese Government, he attended a protest in Liaoning Province where he was beaten up by the police and threatened by the 610 office.  The applicant told how he was detained on two occasions.  The first time being in July 1999, and the second was in 2002.  He claimed that he was a bank employee and that, as a result of his association with Falun Gong and its practitioners, he was dismissed from his employment, and he remained unemployed for a number of years whilst he assisted his wife in her business.  He told the Tribunal that he was taken to a brainwashing class in 2000, although later he said that the date was in fact 2002.  He claimed to have been put into a rehabilitation facility from December 2002 until May 2003.  On both occasions upon which he was detained he claimed that relatives and his wife had paid money to obtain his release. 

3. The applicant said that in 2006 he obtained a passport, but when the 610 office found out about this, they confiscated it.  He later obtained a substitute passport and it was with this that he travelled, first to the Mariana Islands, and then to Australia. 

4. When the applicant first came to Australia he arrived in Sydney.  He claims that within a very short time of his arrival he met, or was introduced to, a migration agent by the name of Mr Lu.  Mr Lu agreed to assist the applicant in preparing his claim for protection.  The applicant dictated to Mr Lu the statement which is written in the Chinese language and is found at [CB 27-28].  He signed that document.  At [CB 29-30] the document has been translated and it reveals the claims that the applicant made and which were submitted with his PVA.  Shortly after completing the PVA the applicant left New South Wales and travelled to Western Australia, where he obtained employment. 

5. When he was informed of the delegate’s decision he sought assistance from the local Falun Gong support group and came into contact with Dr Lin.  Although Dr Lin is not a registered migration agent, there can be no doubt that he provided the applicant with a considerable amount of support and assistance in relation to his application to the Tribunal and, no doubt, to his life in Western Australia.  Dr Lin obtained, for the applicant, letters of support from a Perth Falun Gong practitioner and also from a Mr. Xiao who claims to be the president of Falun Dafa Association of Victoria.

6. The Tribunal questioned the applicant at the hearing about his claims and, in particular, pointed out to him that some of his statements appeared inconsistent with previous written information, particularly that provided in his PVA.  Importantly, the Tribunal raised with the applicant the fact that in his earlier statement he had not raised the fact that he had been detained or imprisoned in China because of his practice of Falun Gong.  The applicant told the Tribunal that he did not consider that the work done by Mr Lu had been of great assistance to him and indicated that any failings in his application were really the responsibility of Mr Lu.

7. The Tribunal pointed out to the applicant other matters of concern. For example, the amount of money that the applicant said had to be paid in order to release him from his incarceration was very high, equivalent to more than three years earnings of the applicant’s job at the bank. During the course of the hearing, Dr Lin gave evidence and expressed the view that he believed the applicant was a genuine Falun Gong practitioner.

8. After the hearing the Tribunal wrote the applicant a letter pursuant to s.424A which dealt first with inconsistencies between his PVA and his interview with the Department and then with inconsistencies in relation to his evidence at the Tribunal hearing. The letter is found at [CB 131-134] and was responded to by the applicant at [CB 135-137]. On 4 May 2009 Dr Lin, on behalf of the applicant, wrote to the Tribunal and submitted a photograph which he claimed had recently been provided by the applicant’s wife to him. Dr Lin said that the photo showed a gathering of local Falun Gong practitioners in the applicant’s neighbourhood. The letter points out that the applicant looks younger than he did when he appeared before the Tribunal and that would indicate the age of the photograph and hence the considerable time during which the applicant had been a Falun Gong practitioner. Dr Lin points out a number of large Falun emblems and a picture of Master Li hanging on the wall behind the seven people contained in the photograph.

9. In its Findings and Reasons, which commence at [CB 162], the Tribunal concludes that it is unable to be satisfied that the applicant did have a well-founded fear of persecution arising out of his adherence to Falun Gong. It comes to that conclusion based upon concerns that it has about the applicant’s evidence, which includes the responses that the applicant gave to the s.424A letter. One of the major grounds for concern was that the applicant had made no claim to have been detained or imprisoned in China in his PVA. But it also went on to note:

   “The Tribunal finds that the failure to mention the alleged periods of detention in the application for a protection visa is one of the many instances of the applicant changing his story when questioned and an obvious inconsistency is pointed out, he blames his agent or the interpreter.  The Tribunal does not accept the applicant’s evidence of an oversight or error and notes that his statement was prepared in both Mandarin and English.  The Tribunal does not accept his claim that he had no knowledge of what his agent had written and notes that the visa applicant signed the copy of his statement written in Mandarin, accompanying the application for protection visa.  The Tribunal does not accept his explanation that the migration agent told him that he only needed to tell the delegate when he attended his interview.  The Tribunal notes that not all protection visa applicants are asked to attend interviews, and considers that had the applicant told the agent of his alleged detention and imprisonment it would have been included in the application.” [CB 162-163]

10. Another area of concern to the Tribunal related to the applicant’s knowledge and practice of Falun Gong. In [91] [CB 164] the Tribunal says:

    “Accordingly the Tribunal does not accept that the Applicant is a Falun Gong practitioner or that he was detained or persecuted for practicing Falun Gong.  While the applicant has some knowledge of Falun Gong exercises, much of this information is widely available on the internet, and information about Falun Gong (Falun Dafa) is distributed by the Falun Gong in Western Australia.  The Tribunal notes that in his letter of support dated 7 July 2008 Dr Lin states that the visa applicant came to the attention of local Falun Gong Practitioners 2-3 months ago to contact Falun Gong practitioners for Falun Dafa reading materials.  The Tribunal notes that this was some months after the applicant lodged his protection application and that the delegate’s decision was made on 30 April 2008.”

11. The Tribunal also commented on the photograph submitted following the Tribunal hearing.  At [102] [CB 166] the Tribunal says:

    “The Tribunal has considered the further submission received from Dr Lin on 6 May 2009 containing a photograph which the applicant claimed had been sent to him by his wife after having been transferred digitally.  Dr Lin submitted that the applicant looked a lot younger in the photo so it was not taken recently.  The Tribunal is concerned about a photograph produced by computer transmission, and is unable to say if the applicant’s face was superimposed or workshopped in some way.  Further a photograph of a person standing with other people does not prove the applicant was a member of Falun Gong, in China in April 1999 or on any other date and the Tribunal attaches little weight to the photograph and submission in the circumstances.”

12. The applicant has applied to this Court for review of the Tribunal’s decision, and in a document entitled “Minute of Proposed Further Amended Grounds of Review” he sets out those occasions upon which he believes the Tribunal fell into jurisdictional error. The first such failing is:

    “The Tribunal fell into jurisdictional error when it:

    1.       Failed to take into account the perfunctory character of the protection visa application prepared by the Applicant’s migration agent Lu Songtao, and Lu’s conduct as a migration agent as revealed in applications heard and determined in the Federal Court of Australia and in the Federal Magistrates Court of Australia of which the Tribunal had constructive knowledge, in assessing the applicant’s evidence that Lu had failed to include in his Statement relevant evidence provided by the applicant; …”

13. As I have said, the alleged failings of Mr Lu were made evident to the Tribunal both by the applicant and by Dr Lin.  At [71] [CB 150] the Tribunal says:

    “Dr Lin claimed that the migration agent did not prepare the applicant’s case properly.  In particular he claimed that the agent failed to inform the applicant that he was required to undergo a health check.  He claimed a Falun Gong practitioner in Western Australia was suing this agent for negligence in the preparation of that person’s application.  Dr Lin said he knew very little about the visa applicant apart from what the applicant told him.”

14. This statement by the Tribunal indicates that the Tribunal has considered the representations made by Dr Lin to it and found at [CB 94]. The Tribunal did take into account the complaint made by the applicant about his previous migration agent, and considered it as part of the applicant’s blame shifting which has been referred to in the extract from the Tribunal’s decision at [86]. It cannot, therefore, be said that this was a matter not taken into account. The Tribunal has specifically made mention of the fact that the applicant signed the statement which was written in Mandarin and which was given to Mr Lu. The applicant is also saying to this Court that the Tribunal had constructive knowledge of a number of cases heard in this Court and the Federal Court in which a criticism of Mr Lu has been made, and presumably that this should have put the Tribunal on some sort of notice that any application bearing Mr Lu’s stamp should be treated with caution if an applicant claimed that he had been misrepresented in relation to it.

15. I was helpfully provided with a bundle of the decisions which I have marked as Exhibit 1.  An analysis of these reveals the following.  The first case is SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980, which was a case where the applicant complained that Mr Lu had not told him to go to a hearing. Importantly, the Federal Court decision of Besanko J notes the following:

    “The Federal Magistrate did not make any findings as to whether Mr Lu had been fraudulent in his dealings with the appellant and whether that had affected the process prescribed in the Act…” [36]

16. His Honour went on to say:

    “In my opinion, the question of whether there was even an arguable case of fraud raised before the Federal Magistrate is finely balanced … The appellant appears to have changed his story on whether his signature appears on one of the documents. More importantly perhaps is that, on the face of it, it is difficult to discern a motive for any fraudulent dealing on the part of Mr Lue … If the appellant’s signature was falsely placed on a relevant document and part of a statement ‘made up’, then that may go some way towards establishing fraud, although it will still be necessary for the appellant to show that the fraud (if there be a fraud) has affected the process prescribed by the Act. I am not to be taken as saying that it is likely that fraud will be made out, but simply that I cannot be certain that it cannot be made out…” [37]

17. The second case is SZHMK v Minister for Immigration & Anor [2006] FMCA 1370, which is another failure to attend case, as is SZJWV v Minister for Immigration & Anor [2007] FMCA 612 and SZKQO v Minister for Immigration & Anor [2007] FMCA 1275, which also adds a complaint of insufficient explanation. The final case that is relevant for the purposes of this hearing is SZMSX v Minister for Immigration & Anor [2009] FMCA 324, where fraud was found, not against Mr Lu but against a person who Mr Lu had introduced that applicant to. I have been given no authority to support the proposition that the Tribunal would be fixed with constructive knowledge of these cases, and I am unable to see how that should be the case. But even if it was, one wonders how far it would take us. This applicant was given an interview, so there can be no question that Mr Lu had deceived him in that way.

18. The inconsistency found by the Tribunal was the failure to include the very important fact of the applicant’s detention in a document that the applicant had himself signed.  I do not think that one could say that a jurisdictional error existed because the Tribunal declined to act in some prejudicial way against a migration agent it had never met, nor ever had received evidence from, on the basis of a number of other complaints made by other persons not within the Tribunal’s personal knowledge.  To my mind, the Tribunal dealt with the inconsistency appropriately and without falling into jurisdictional error.

19. The second ground raised by the applicant was that the Tribunal:

    “Failed to have regard to the evidence of Dr Lin that the applicant’s ability to perform the Falun Gong physical exercises demonstrated that he was an experienced Falun Gong practitioner as claimed.”

20. The evidence that the applicant refers to is found at [CB 127] in a letter from Dr Lin to the Tribunal where he says:

    “I’d like to offer a little more perspective regarding the applicant for your consideration.  As practitioners of Falun Gong we can easily tell whether someone is or isn’t a Falun Gong practitioner by talking to them about the practice and looking at their exercise movements. 

    The applicant has done well in both areas.  This was also acknowledged by Ms Cruise of DIAC …”

21. I do not think it can be said that the Tribunal did not consider that evidence.  At [101] [CB 166] the Tribunal accepted that Dr Lin was a spokesman for Falun Gong in Western Australia, but noted that he knew very little about the applicant, apart from what the applicant had told him.  The Tribunal is not obliged to refer to every piece of evidence and the fact that it does not do so does not mean that it has not considered it; SZEHN v Minister for Immigration [2005] FCA 1389 at [58]. The letter and the reference to the exercises is hardly detailed, a fact which must have been recognised by the applicant, who attempted to tender a further affidavit from Dr Lin concerning this very fact. I rejected that as evidence going to merits and the evidence before me is only what appears in the Court Book. I think that the most that could be said about this matter is the Tribunal misunderstood the evidence of Dr Lin and that, to my mind, would not constitute a jurisdictional error, but merely an error within jurisdiction.

22. The third matter raised by the applicant was that the Tribunal:

    “Failed to warn the Applicant in accordance with the provisions of section 424A(1) of the Migration Act 1958 (Cth):

    (i)That it proposed dismissing evidence [of] the applicant’s experience as a Falun Gong practitioner on the basis that his knowledge of Falun Gong could readily be acquired from the Internet, …”

23. Section 424A of the Act is intended to provide an applicant with procedural fairness in the conduct of the review. It requires that a Tribunal give to an applicant clear particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and ensuring, so far as possible, that he understands why the information is relevant to the review and the consequences of it being relied upon in order to affirm that decision. There has been much debate about what constitutes information for the purposes of this subsection. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] the majority of the High Court said:

    “…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence…”

1. The problem that I believe the applicant faces in regard to this complaint is that the Tribunal’s views about the applicant’s knowledge of Falun Gong practices does not go directly to the question of whether or not he has a well-founded fear of persecution should he return to China. Additionally, the whole question of the availability of this information upon the internet was raised by the delegate and was the subject of submissions by Dr Lin on behalf of the applicant, found at [CB 97]. This case has much in common with that considered by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, save that, instead of the dispositive matter being one that was not raised by the Tribunal, here it clearly was. It was not suggested in SZBEL that the matters referred to by the delegate was information pursuant to s.424A and to my mind this does not seem to be something which would come within that subsection. It is not the existence of evidentiary material or information, it is the existence of a doubt in the Tribunal’s reasoning processes.

2. Finally, the applicant submits that the Tribunal fell into error because:

   “[It] failed to warn the Applicant in accordance with the provisions of section 424A(1) of the Migration Act 1958 (Cth):

   (ii)“That it proposed disregarding the photograph provided on his behalf showing the applicant with a group of Falun Gong practitioners as possibly fabricated.”

3. The concerns I have with this submission are that, firstly, if the photograph was the information then it was something that was provided by the applicant and so s.424A(3)(b) would apply. Secondly, if it was not the photograph that was the information but the fact that the photograph could have been photoshopped, that would seem to me to be part of the Tribunal’s reasoning process. In any event none of the Tribunal’s comments seem to me to undermine the applicant’s claims to be a Falun Gong practitioner. They merely raise doubts about a piece of evidence seen to corroborate those claims. As the Tribunal itself said, being photographed with people does not prove that you are a Falun Gong practitioner. The Tribunal did not reject the photograph, it merely indicated that it did not propose to give it much weight. This determination is a matter for the Tribunal and it is not for the Court to step in and alter the Tribunal’s views in that regard.

4. In these circumstances, I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  The application is dismissed. The applicant shall pay the respondent’s costs assessed in the sum of $5,500.00.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  1 October 2009