SZILK v Minister for Immigration and Citizenship [2007] FCA 185 (23 February 2007)

SZILK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1825 OF 2006

SIOPIS J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1825 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZILK Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1825 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZILK Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

1 This is an appeal against a judgment of a Federal Magistrate delivered 30 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 11 January 2006 that was handed down on 31 January 2006. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2 The appellant is a citizen of the People’s Republic of China (‘China’). On 27 May 2005, the appellant lodged an application for a protection visa on the basis of a claim to have a well-founded fear of persecution as a Falun Gong practitioner. On 18 August 2005, the delegate refused the appellant’s application.

3 On 12 September 2005, the appellant sought review before the Tribunal. The appellant appointed a new migration agent and submitted to the Tribunal a statutory declaration dated 12 December 2005 which asserted the appellant’s identity was different to that disclosed in the appellant’s passport and protection visa application. In her statutory declaration, the appellant also set out a different basis for her claim. The appellant relied on the fact that she was a practitioner of Tien Tao as the basis for her well-founded fear of persecution if she were to return to China. Her claims were that she attended small gatherings with other followers of Tien Tao, organised by the leader of the group, Mr He, and in February 2005 was questioned by the Public Security Bureau (‘PSB’) in Fujian province, and was beaten and detained by the PSB. The appellant claimed that the PSB denounced her as being involved with an illegal religious organisation. The appellant said that the PSB asked her to act as a bait to capture Mr He. The PSB inquired every day about Mr He. The appellant became scared and escaped to a friend’s place. The appellant’s parents told her that there was a warrant of arrest issued against her.

4 At the hearing, the appellant, in response to questions from the Tribunal, gave extensive evidence about the circumstances surrounding the making of her initial claim that she feared persecution on the grounds of being a Falun Gong practitioner, and her entry into Australia on a passport, which described her identity differently. The appellant said that it was her previous migration agent who had advised her to make the claim in those terms. The agent had written the claim for her and the appellant had hand-copied the claim and signed it. The appellant had advised that migration agent that her true identity was different. However, the appellant said that she had not told the previous migration agent that she was an adherent of Tien Tao. The appellant said that the reason for not doing so, was that she did not want to use Tien Tao as a vehicle for seeking asylum.

5 After the Tribunal hearing the appellant submitted an original Chinese identity card in the name she now claims is her true name. The appellant also submitted a statutory declaration by an Australian resident, who deposed to being a member of a congregation of Tien Tao at Campsie, Australia. The deponent went on to say that the appellant was baptised into the congregation on 12 August 2005 and since then she had participated in weekly public services. The statutory declaration was sent to the Tribunal under cover of a letter from her migration agent which said:

6 The Tribunal was satisfied the appellant was a national of China but said that it was ‘unable to establish [the appellant’s] identity with confidence’. The Tribunal referred to the passport on which the appellant had entered Australia, being in one name, and an original Chinese identity card, being in another name. The Tribunal referred to country information which disclosed that the incidence of official corruption and document fraud was widespread in China, and said that it could not, therefore, rely upon either document as ‘conclusive evidence’ of the appellant’s true identity.

7 The Tribunal accepted the appellant had participated in Tien Tao in Australia, but did not accept the appellant was a Tien Tao practitioner in China or that she was harmed or harassed by Chinese authorities on the basis of being a practitioner of Tien Tao. The Tribunal gave four reasons for this finding. Firstly, the appellant did not mention the claims before the Tribunal to her first migration agent. The Tribunal said that the fact that the appellant had not given truthful biographical details did not reflect well on the appellant’s frankness and truthfulness. Secondly, the appellant did not mention the crackdown on Tien Tao practitioners in Fujian province by the PSB to other practitioners in Australia. Thirdly, the statutory declaration provided in support of the appellant’s claims after the hearing, did not mention that the appellant was a practitioner of Tien Tao in China and consequently, apart from the appellant’s own assertions, there was no evidence before the Tribunal that the appellant had been a Tien Tao practitioner in China. Finally, the appellant’s explanation for not contacting Mr He, who was said to reside in Hong Kong, was vague and implausible.

8 Although the Tribunal accepted that the appellant had engaged in the practice of Tien Tao in Australia, the Tribunal considered that s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’) applied to that activity. The Tribunal was not satisfied the appellant had a well-founded fear of persecution within the meaning of the Convention.

9 Before the Federal Magistrate, in an amended application filed on 23 June 2006, the appellant raised three grounds of review.

10 Firstly, the appellant claimed the Tribunal misunderstood the appellant’s claims, ignored important issues and made mistakes in relation to important findings of fact.

11 Under this ground, the appellant challenged the Tribunal’s finding that it was uncertain as to the appellant’s identity. The appellant contended that the Tribunal should have made inquiries as to her true identity. The Federal Magistrate found the Tribunal was under no obligation to investigate the material presented by the appellant by making further inquiries. Further, the Federal Magistrate did not consider the information as to the appellant’s true identity played a material part in the Tribunal’s decision. As to the other challenges made under the first ground of review, the Federal Magistrate characterised those challenges as being challenges to the Tribunal’s factual findings, which did not disclose jurisdictional error.

12 The second ground alleged the Tribunal failed to comply with s 424A(1) of the Act. The Federal Magistrate identified the failures relied upon by the appellant as being the Tribunal’s failure to give particulars of country information regarding corruption and fraud in China, and the failure to give particulars of the fact that the statutory declaration by the Australian Tien Tao practitioner, did not refer to the appellant’s participation in Tien Tao in China. There was also a general complaint that the Tribunal did not put to the appellant its particular concerns which eventually caused it to decline to accept the truth of her claim to have been a Tien Tao practitioner in China.

13 The Federal Magistrate held that the country information and the information in the statutory declaration fell within the exemptions in s 424A(3)(a) and s 424A(3)(b) of the Act, respectively. Furthermore, said the Federal Magistrate, the Tribunal was under no obligation to disclose to the appellant its reasoning processes. There was no breach of s 424A of the Act.

The final ground relied on a failure to comply with s 425 of the Act by failing to give the appellant an opportunity to present evidence and arguments.

15 The Federal Magistrate was not satisfied the appellant was misled by the Tribunal into thinking her claims were succeeding and was not satisfied the Tribunal failed to afford the appellant an opportunity under s 425 of the Act, as there was no obligation under s 425 of the Act, or any other section, to provide its thoughts on the decision to the appellant.

17 The grounds of appeal ultimately relied upon by the appellant emerged from the ‘particulars’ which were provided in the appellant’s written submissions, and from the oral submissions made before me by the appellant.

18 I discerned the first ground of appeal to be that the Federal Magistrate erred in failing to find jurisdictional error in the Tribunal’s failure to make inquiries to establish the true identity of the appellant. The appellant submitted that her true identity was crucial to the consideration of her claim. The Tribunal, she said, should have made inquiries to establish her true identity. In my view, the Federal Magistrate did not err in finding that there was no jurisdictional error in this respect. There is no absolute obligation on the Tribunal to make further inquiries. Further, the circumstances referred to in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [75]- [76], as being capable of giving rise to a jurisdictional error though a Tribunal’s failure to make inquiry, did not apply. This was because it was not obvious that the appellant’s true identity had to be positively established for the proper disposition of her case. The question for the Tribunal was whether the appellant, whatever her true identity, held a well-founded fear of persecution if she were to return to China, based on her being a practitioner of Tien Tao. The Tribunal was able to make factual findings on that crucial issue, without resolving conclusively the question of the appellant’s true identity.

19 The second ground of appeal was that the Federal Magistrate should have found that the Tribunal failed to comply with its obligations under s 424A(1) of the Act. The particulars of that ground were described as follows:

20 The Tribunal did take into account in its reasons, the fact that the appellant had made an inconsistent claim before the delegate, and had asserted a different identity before the Tribunal. It is also the case that the inconsistent claim was made in the protection visa application. However, when the appellant gave evidence before the Tribunal she said that her initial claim was made on the basis that she feared persecution because of being a Falun Gong practitioner. She also gave evidence as to the circumstances of the withdrawal of that initial claim. The appellant also gave evidence before the Tribunal about her entry into Australia on a Chinese passport bearing the name of a different person, and the fact that the first claim was made in a false name. In my view, it was this ‘information’, given as part of the appellant’s evidence before the Tribunal, which was relied upon as ‘the reason, or part of the reason’ for the Tribunal’s decision. This ‘information’ was information which was given for the purpose of the review, within the meaning of s 424A(3)(b) of the Act, because it was given as evidence before the Tribunal. The circumstances of this case fall within the ambit of the decision in SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627. There was no obligation, therefore, on the Tribunal to provide the appellant with particulars of that information under s 424A of the Act. There was no breach of s 424A of the Act by the Tribunal, and, therefore, no error by the Federal Magistrate in failing so to find.

21 The third ground relied upon by the appellant was that there was a breach of s 425 of the Act, in that she did not receive a lawful ‘hearing’ of the kind contemplated by that section. The appellant complained that she did not have a full opportunity to make submissions to dispel the Tribunal’s doubts. The appellant submitted that the Tribunal did not put to her its concerns, and that she thought the Tribunal had accepted her claim. In NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241, the Full Court held that it was up to a party making these types of claims to adduce evidence of proceedings before the Tribunal, which demonstrate the acts or omissions of the Tribunal complained of. There was no such evidence before the Federal Magistrate. In any event, the reasons of the Tribunal record that the Tribunal expressed to the appellant its concerns about her truthfulness.

24 The Tribunal’s reasons also record that the appellant’s migration agent, Mr Huang, declined an invitation from the Tribunal, given at the conclusion of the hearing, to make oral submissions. Further, at the end of the hearing the Tribunal said that it would withhold making a decision pending the appellant providing further information to the Tribunal. After the hearing the appellant’s migration agent submitted further material to the Tribunal. In my view, the Federal Magistrate did not err in concluding that there had been no failure by the Tribunal to provide a proper hearing of the kind contemplated by s 425 of the Act.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

	The appellant appeared in person.

Counsel for the First Respondent:	Mr J Mitchell

Solicitor for the First Respondent:	Blake Dawson Waldron

Date of Hearing:	19 February 2007

Date of Judgment:	23 February 2007

Federal Court of Australia

SZILK v Minister for Immigration and Citizenship [2007] FCA 185 (23 February 2007)