SZMQL v Minister for Immigration & Anor [2009] FMCA 64 (2 February 2009)

Federal Magistrates Court of Australia

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SZMQL v Minister for Immigration & Anor [2009] FMCA 64 (2 February 2009)

Last Updated: 6 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 64

MIGRATION – Application for review of RRT decision – where applicant claimed to be an advocate of Falun Gong – whether Tribunal failed to consider relevant material – whether interpretation services adequate.

Migration Act 1958 (Cth), ss.424A, 65(1), 36(2), 425, 422B

SZHFE v The Minister for Immigration & Anor [2006] FCA 648 SZHTC v The Minister for Immigration & Anor [2007] FCA 1199 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 Abebe v The Commonwealth [1999] HCA 14; (1991) 197 CLR 510 Appellant P119/2002 v The Minister for Immigration [2003] FCAFC 230

Applicant:

SZMQL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2107 of 2008

Judgment of:

Raphael FM

Hearing date:

2 February 2009

Date of Last Submission:

2 February

Delivered at:

Sydney

Delivered on:

2 February 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2107 of 2008

SZMQL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 21 August 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 13 September 2007. On 27 September 2007, the delegate refused to grant the applicant a protection visa, and on 31 October 2007, the applicant applied for review of that decision from the Refugee Review Tribunal.
2. The applicant attended a hearing before the Tribunal on 11 December 2007. On 8 May 2008, the Tribunal wrote a letter to the applicant pursuant to s.424A of the Migration Act 1958 (the “Act”), inviting him to comment upon certain information which the Tribunal considered would, subject to any comments that he might wish to make, be the reason or part of the reason for affirming the delegate's decision. On 30 June 2008, the Tribunal determined to affirm the decision under review and handed that decision down on 22 July 2008.
3. The applicant's claim to be a person to whom Australia owed protection obligations arose out of his practice of and adherence to Falun Gong. He claimed that he had been involved in the Falun Gong movement since before 1999. In November of that year he had been caught and had been taken into detention. He said that he had been tortured whilst in detention where he had remained for three weeks. The applicant claimed that he was an advocate for the Falun Gong movement and that was why the police were interested in him.

“The Tribunal asked the applicant about what happened after he was released from detention. The applicant said that the police often came to his house, sometimes every two months. The applicant said that police would ask him whether he was still practising Falun Gong and the applicant said all he could do was lie and tell them he was not practising. He said the police still know he is practising and that they would still go to his house. The applicant said he was very afraid because he was followed by people wherever he went... The Tribunal asked what he was now doing as an advocate for Falun Gong. He said he would secretly tell people about Falun Gong. The applicant said he had been followed ever since he was released from detention until he left China.” [CB 88]

4. The applicant told the Tribunal that he worked for a real estate company and that he obtained a passport in November 2006, and in February 2007, he travelled to Thailand. He told the Tribunal that he attempted to obtain asylum in Thailand but was told that it was a very small country that had a fear of China and so was not prepared to grant him asylum.
5. In August 2007, the applicant obtained a visa through the assistance of his employer to travel into Australia. The Tribunal raised with the applicant the considerable delay since his detention in 1999 and the time when he chose to leave. The applicant put this down to the difficulty in obtaining a passport.
6. The Tribunal asked the applicant a number of questions concerning his knowledge of the Falun Gong practices and what the movement stood for. Whilst the applicant was able to provide the Tribunal with the name of the leader of the Falun Gong movement, he did not appear to have much knowledge about the exercises or the writings of Li Hongzha. The applicant told the Tribunal that he had taken up the practice of Falun Gong for his health. The applicant was also vague about his advocacy for the movement.
7. The Tribunal discussed with the applicant his involvement with Falun Gong since he had arrived in Australia:

“The Tribunal put to the applicant that he had not taken the opportunity to contact Falun Gong practitioners or Falun Gong organisations in Australia. The Tribunal said it found it difficult to believe that a genuine Falun Gong practitioner, who fears persecution because of his faith would not take advantage of the opportunity to practice in Australia. The Tribunal noted that he had stated he had not taken the opportunity to contact Falun Gong practitioners or Falun Gong organisations in Australia because of language difficulties. However, later in the hearing he mentioned spies as the reasons for not contacting Falun Gong practitioners. The Tribunal said that this may lead it to conclude that he was not a Falun Gong practitioner and would not suffer serious harm if he were to return to China.” [CB 93]

8. Following the hearing the Tribunal wrote a detailed letter to the applicant pursuant to s.424A of the Act. The letter is extracted in the decision at [CB 93-98]. It sets out all the concerns that the Tribunal had, including inconsistencies in the applicant's statements, his lack of knowledge about the Falun Gong movement, the delay in leaving China, the ability of the applicant to leave China on his own passport without difficulty, and his failure to practice Falun Gong in Australia.
9. In response to this detailed letter, the applicant replied, on 2 June 2008, the following:

“The agent who helped him with his visa to come to Australia may have done something I did not know for the application of my visa to come to Australia. However, what I mentioned at my protection visa application is true and correct. There may be some misunderstanding and misinterpretation at the hearing, but what I mentioned at my initial application statement is true and correct.” [CB 98]

10. In its Findings and Reasons, commencing [CB 102], the Tribunal indicated that it did not find the applicant to be a truthful or credible witness. It did not accept his claim to be a Falun Gong practitioner.

“In reaching this view, the Tribunal has had regard to the significant inconsistencies between his written claims and oral evidence, internal inconsistencies in his oral evidence, and inconsistencies with independent country information as well as the other reasons as detailed below.” [CB 103]

11. The Tribunal then sets out in the following paragraphs the justification for the view that it has taken. The justification follows upon the lines of the s.424A letter, which itself followed questions put to the applicant and statements made to him at the Tribunal hearing. The Tribunal was not impressed by any of the responses made by the applicant to the concerns that it had raised and concluded from the totality thereof that it could not be satisfied that the applicant did, indeed, have a well founded fear of persecution for the reasons claimed.
12. On 10 September 2008, the applicant filed in this Court an amended application for judicial review of the Tribunal's decision. He gave three grounds. The first:

“The Tribunal failed to consider the fact that I have been practising Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.”

Although, Ms Weston, in her helpful written submissions has addressed this matter, on the basis of the authorities: SZHFE v The Minister for Immigration & Anor [2006] FCA 648 and SZHTC v The Minister for Immigration & Anor [2007] FCA 1199, in my view, this was not necessary because I am quite satisfied from the extracts that I have cited in this decision that the applicant did not tell the Tribunal that he had been practising Falun Gong in Australia. He may have practised Falun Gong in Australia but the Tribunal's job is to consider the evidence that was before it and not things that the applicant may have known but did not tell it. In case I am wrong about this, I am fully satisfied that the views expressed by Ms Weston in paras.15.1 and 15.2 of her written submissions are correct.

13. The second ground raised by the applicant:

“The Tribunal failed to consider the full information that I provided for the consideration in my application. Some of the information that I have provided was not considered by the Tribunal.”

It is very difficult to respond to a submission of this nature when no particulars are provided about the information. I was not present at the hearing, only the applicant was. I notice from the Green Book that the applicant requested and obtained a copy of the Tribunal's tape, and so he would be in a particularly good position to know what matters were not considered. I pause here only to remind myself of the similar cases on jurisdictional error involving failure to consider relevant material such as Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 and Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163. In the absence of any information from the applicant pointing to a lack of consideration of this type of material, I am afraid I am unable to assist him further.

14. The third ground raised by the applicant is:

“The decision to refuse my application for a protection visa was not supported by materials.”

As Ms Weston points out the duty of the decision maker is to come to a conclusion as to whether he or she is or is not satisfied that the applicant meets the definition of a refugee as set out in articles 1A(2) of the Refugees Convention. If the applicant can satisfy the Tribunal of that matter, then subject to some other minor considerations that may not be relevant for the purposes of this hearing, the Tribunal is bound to grant the visa; ss.65(1) and 36(2) Migration Act 1958. The duty to satisfy is one for the applicant; Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 per Allsop, Jacobson, Graham JJ at [26]; Abebe v The Commonwealth [1999] HCA 14; (1991) 197 CLR 510 per Gummow and Hayne JJ at [187].

15. In my view, the applicant has not made out any of the grounds put forward in his application as indicating the Tribunal had fallen into jurisdictional error. Before me today, he told me that the Tribunal did not seriously consider the information he provided but, again, did not particularise what the information was. He said that he spoke in broken sentences and because of that the Tribunal may have said that what he had told it was inconsistent. Ms Weston felt that this might be a claim about the quality of the interpretation and referred me to Appellant P119/2002 v The Minister for Immigration [2003] FCAFC 230 where at [17] the Full Bench, Mansfield, Emmett, Selway JJ, said:

“The claimed obligation upon the Tribunal under section 425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented upon by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v The Minister for Immigration [2001] FCA 1376; Mazhar v The Minister for Immigration [2000] FCA 1759; Ismail v The Minister for Immigration [1999] FCA 1555; Perera v The Minister for Immigration [1999] FCA 507. In his written submissions, the respondent, after referring to these cases submitted that in order for the applicant to succeed in an argument that the Tribunal had failed to comply with s.425 of the Act by reason of inadequate translation services, the appellant would need to establish that (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or (b) errors made by the interpreter at the hearing were material to the conclusions of the Tribunal adverse to the applicant.”

16. The Full Bench accepted the correctness of these submissions. In the instant case neither of these matters has been made out by the applicant, no evidence has been proffered. It may well be that the applicant was not complaining about the standard of interpretation but merely about his own failings as advocate in his own cause. Again, I have not had the opportunity of hearing the tape, which has not been proffered in evidence, but my reading of the Tribunal's decision gives no indication that the Tribunal had any difficulty in comprehending the applicant's responses to its questions.
17. The applicant further told me that the claims that he had made were true and offered to provide evidence from China if “the government” had any doubt that he was a Falun Gong practitioner. He offered to give me names of other Falun Gong practitioners and effect introductions. He requested that the government look at the information he was prepared to provide very carefully.
18. These statements from the applicant, understandable as they may be, indicate his misunderstanding of the doctrine of the separation of powers in western democracies governed by the English system and the rule of law. This Court, whilst an arm of government, is independent of government and is reviewing the decision on his case completely free of any interference from the executive. Because it is merely reviewing a decision already made it is not able to accept any additional evidence that the applicant should have provided to the Tribunal if he had it.
19. The Tribunal has provided clear and cogent reasons for its decision. It provided the applicant with procedural fairness as required by s.422B of the Act. None of the matters raised by the applicant indicate any jurisdictional error in the decision. I dismiss the application. I order that the applicant pay the first respondents costs which I assess in the sum of $4,000.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 4 February 2009