SZKOK v Minister for Immigration & Anor [2010] FMCA 90 (5 February 2010)

Last Updated: 23 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKOK v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 90

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal on plausibility grounds – Tribunal had no duty to make enquiries – no error in application of s.91R(3) – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 420, 422B, 427

Fox v Percy [2003] HCA 22 Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592; (2007) 164 FCR 14 SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZKOK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2124 of 2009

Judgment of:

Smith FM

Hearing date:

5 February 2010

Delivered at:

Sydney

Delivered on:

5 February 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $6,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2124 of 2009

SZKOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant entered Australia in August 2005, using a passport in the name of L which contained a visa to enter Australia issued to that person. On 27 September 2005, he applied for a protection visa in the name of L. His application was based on a very brief typed statement. He claimed that he had “joined the Falun Gong” and “collected huge amounts of books, tapes of Falun Gong, sending brochures and organising activities”, but “I was caught by the policemen in a congregation and sent to prison”. He claimed that when he was released, he faced discrimination and attention from the police, and therefore left his home town and came to Australia. No details and corroboration of these claims were given, and a delegate refused the visa in a decision made on 7 October 2005.
2. The applicant did not challenge the decision at that time. After he was taken in to immigration detention in November 2006, he commenced judicial review proceedings, and also made a second protection visa application. He claimed to the Department of Immigration that his true identity was that of W, and he presented copies of identity cards issued in that name, although the two cards he produced had different birth dates.
3. His second protection visa application was refused under s.48 of the Migration Act 1958 (Cth), and an appeal to the Tribunal was refused on jurisdictional grounds. However, the Department conceded in June 2007 that the delegate’s decision made in 2005 was affected by jurisdictional error, and it was set aside or treated as void. The Department then proceeded to reconsider the applicant’s 2005 protection visa application, taking into account the new and more detailed claims made in his present name. This was supported over the subsequent years in which his claims were addressed, by numerous corroborative documents by way of letters from witnesses and relations, and by purported official documentation. The matter became protracted in the Tribunal, since its first decision was set aside by order of this Court in January 2009.
4. In the course of the decision-making in the Department and the Tribunal various inconsistencies between versions of events claimed by the applicant were identified from time to time, and were put to the applicant. The applicant sought to explain some of them, by blaming the agents he had employed when making his 2005 application. It is unnecessary for me to detail these matters, since ultimately the Tribunal’s decision which I am now reviewing addressed the application’s claimed history upon its merits, as presented by the applicant to the Tribunal as most recently constituted. Similarly, although previous decision-makers expressed doubts about the applicant’s true identity, the present Tribunal member accepted the applicant’s claims in this respect, though expressing some reservations.
5. In short, the applicant claimed to the Tribunal that he had been introduced to Falun Gong in June 1999 before it had been outlawed in China, and had practiced with some friends, but that after it was outlawed he practiced only in private. However, his employer, a bank, had been told by the PSB that he was a participant of Falun Gong, and he was dismissed on that ground in August 1999. He found a second job in 2001 as a contract teacher, and claimed that he had discussed Falun Gong with his students and educated them in the principles of Falun Gong. He named some such students, and presented statements from some of them. He told the Tribunal that in late 2002 this employer also became aware from the PSB that he was practising Falun Gong, and he was later dismissed. His statements, and a purported letter from the school, said that his dismissal occurred in December 2003.
6. The applicant said that he had kept Falun Gong material in his home throughout these events, and even after he received a summons to attend the police station in the beginning of 2004. When interviewed, he denied that he was practising Falun Gong. However, in January 2004, the police arrived with a detention warrant, and they arrested and detained him for five days. He claimed that his house was not searched until after he was released and had left for Guandong, and the police then found incriminating material. He claimed at that time to have assumed the identity of a friend, L, in whose name he had obtained the passport and visa to come to Australia.
7. The applicant claimed that after his arrival in Australia, he had practiced Falun Gong privately, because he had been too scared to do so publicly. However, after he was taken in to detention in Villawood, he commenced to practice Falun Gong in public and to join in protests of Falun Gong supporters. He presented statements from people and photographs showing these activities. When questioned about his knowledge of Falun Gong, he demonstrated knowledge of information generally available about Falun Gong.
8. The applicant’s new and elaborated claims were addressed by a second delegate, in a decision made on 31 August 2007 after interviewing the applicant. The delegate refused the 2005 visa again on the grounds that he was not satisfied as to the claimant’s general credibility. It is unnecessary to analyse the reasons given by the delegate for that conclusion.
9. On appeal, the applicant continued to be represented by a migration agent, who had commenced representing him after he had been taken into immigration detention.
10. The Tribunal, as originally constituted, held a lengthy hearing attended by the applicant and his agent. On 21 February 2008, it handed down a decision affirming the delegate’s decision. The statement of reasons contained a meticulous examination of the evidence, but it is unnecessary for me to examine that Tribunal member’s reasoning. It contained, at the conclusion, a subordinate finding which referred to the applicant’s conversion to Christianity whilst in Villawood Detention Centre, and the applicant’s statements about this, as reinforcing the Tribunal’s conclusion that he was not a witness of truth.
11. That finding led to a concession by the Minister in proceedings in this Court, that the Tribunal’s decision was affected by jurisdictional error of the type arising from the Full Court’s judgment in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105; (2008) 170 FCR 515. The matter was therefore remitted for further consideration by consent. In the light of the subsequent High Court judgment in Minister for Immigration & Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642, it is now clear that the Tribunal made no jurisdictional error in relation to s.91R(3) of the Migration Act.
12. On the reconsideration, the new Tribunal member conducted two lengthy hearings on 12 May 2009 and 15 June 2009. The Tribunal took evidence from a witness corroborating the applicant’s involvement in Falun Gong since late 2007. While the Tribunal took in to account all of the evidence presented by the applicant and his agent in the previous proceedings, it is plain from the Tribunal’s statement of reasons that it conducted its own examination of the evidence, and followed its own reasoning.
13. The Tribunal made its decision on 4 August 2009, affirming the delegate’s decision. In its findings and reasons, the Tribunal assessed the applicant’s claims by considering his evidence about their key elements. In particular, it assessed the plausibility or inherent likelihood of the events claimed by the applicant having actually occurred.
14. In relation to his claimed dismissal from a bank in August 1999, the Tribunal noted that the applicant relied on a letter from the bank confirming his dismissal as a result of “reports from the Public Security”. It said that he “expects the Tribunal to accept his evidence that the PSB did not investigate him until January 2004 after he had been dismissed from his position at the school”. The Tribunal did not accept that this would have happened. It did not accept that he had practiced Falun Gong in China, or ever been suspected of being a Falun Gong practitioner after its ban, or was dismissed from the bank because of Falun Gong. It was of the view that the dismissal document produced by the applicant had been provided “in an effort to enhance his protection claims”.
15. In relation to the applicant’s claimed dismissal from his teaching position in December 2003, the Tribunal similarly found unbelievable that the PSB would have told the school that he was practising Falun Gong in late 2002, and yet would have taken no other action in relation to him at that time. The Tribunal did not accept that the applicant had engaged in any Falun Gong activities, or was suspected of Falun Gong involvement or activities, during that period. It did not accept that he had been dismissed because of suspicion, and it did not accept documents that the applicant had presented purporting to corroborate these events.
16. In relation to the applicant’s accounts of being summoned by police in early 2004, being detained for five days, and having his home searched, the Tribunal found these claimed events to be “implausible”. The Tribunal said that it was implausible “that had the applicant been on notice that the PSB were investigating him, he would not have disposed of all incriminating evidence in relation to the practice of Falun Gong”.
17. The Tribunal noted that the passport upon which the applicant had entered Australia had been issued in June 2004, and his Australian visa had been granted in July 2005. The Tribunal was of the view that if the applicant had over that period been in fear of persecution, as he claimed, “he would have left China much earlier than he did”. The Tribunal did not accept that he had been provided with a friend’s passport as a means to assist him to escape.
18. The Tribunal had previously identified all of the documents and photographs that the applicant had presented to corroborate his story, and it said:
    • However given the adverse credibility findings herein, the Tribunal gives no weight to the statements which purport to corroborate the applicant’s claims that he practised Falun Gong in China and that he fears persecution because of that practice, should he return to China. In light of the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that the statements in these documents are true.
19. The Tribunal addressed the applicant’s evidence about his activities in Australia in relation to Falun Gong, and said:
    • Regarding the applicant’s claims to have participated in Falun Gong activities in Australia, the Tribunal accepts that he has attended Falun Gong gatherings and activities. The Tribunal also accepts that fellow Falun Gong practitioners who have provided supporting letters regarding the applicant’s practice of Falun Gong in Australia consider the applicant to be a genuine Falun Gong practitioner. However, in light of the Tribunal’s finding that he has not been truthful about his practice of Falun Gong in China, or having been detained in China for that reason, the Tribunal is not satisfied that the applicant has participated in Falun Gong activities in Australia otherwise than for the purposes of strengthening his claims. Therefore, that conduct must be disregarded by the Tribunal in determining whether he has a well-founded fear of being persecuted for a Convention reason in China. His claims about his activities in Australia must be disregarded by the Tribunal.
20. The Tribunal concluded:
    • Overall, the Tribunal has found that the applicant was not involved in the practice of Falun Gong in China and was not subjected to any persecution, as claimed. The Tribunal is not satisfied that the PSB is or was looking for him or that his wife was summonsed in 2006 or that his family suffered, as claimed. The applicant has not claimed fear of persecution in China for any other reason. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of his being a Falun Gong practitioner.
21. The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for a third consideration. I have power to make these orders only if I am satisfied that the most recent decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he should be given permission to stay in Australia.
22. His original application had three grounds:
    • 1. The RRT Decision is affected by jurisdictional error.
    • 2. The Tribunal rejects my true story as fabrication
    • 3. The Tribunal made a subjective judgment of the truthfulness of my evidence without authentication.
23. To the extent that these grounds can be comprehended without particulars, they appear to be explained by grounds which were more fully set out in an amended application. It states its grounds:
    • 1. The making of the decision is an improper exercise of power in that whereas s.420(2) provides that the Tribunal “in reviewing a decision must act according to substantial justice and the merits of the case”. The Tribunal:
      • i. failed to give any or any adequate weight to the fact that the Department of Immigration and Citizenship that it was unable to give any opinion whatsoever as to the authenticity or otherwise of the Detention WARRANT and SEARCH WARRANT in question.
      • ii. failed to consider and properly exercise its discretionary powers under s.427(1)(b) of the Migration Act 1958 in that it failed to in (iii) here under.
      • iii. The Tribunal failed to consider and properly exercise its discretionary powers provided under s.427(1)(b) of the Migration Act 1958 in that it failed to require the Secretary to arrange for the making of an investigation which the Tribunal ought reasonably to have thought necessary with respect to establishing the validity or otherwise of the Detention Warrant and Search Warrant tendered to the Tribunal. This might have been done for example by making enquiries of the PRC authorities directly.
    • 2. The Tribunal failed to act judicially by making credibility and weight determination without disclosure of a legitimate articulable base for its findings.
      • a. The inconsistencies (or rather, omissions) on which the Tribunal based its adverse findings were minor or trivial such that the inferences of fact upon which the decision was based cannot reasonably be drawn from such finding of fact.
    • 3. The Tribunal breached s.91R(3) in circumstance where the Tribunal committed jurisdictional error when explaining it reasons for rejecting the applicant’s claim to have been a Falun Gong practitioner in China by relying, inter alia, on the applicants claim that in Australia he “rarely attended practice sites in the evening” to undermine the credibility of his claim to have practised Falun Gong in China ( cf. SZJGV v MIAC [2008] FCAFC 105 at [27])
    • 4. The Tribunal failed to take into account that the applicant have provide the evidence relating to Falun Gong by Falun Gong practitioners.
    • 5. The Tribunal failed to give enough weight to the fact that it was applicant has involved himself in Falun Gong activities in Australia.
    • 6. The RRT failed to attain, or failed to exercise jurisdiction by reason that the RRT erred in law in failing to take into account a relevant consideration for the reason that the Tribunal made findings that were illogical and irrational.
24. The invocation of s.420(2)(b) of the Migration Act in the preamble to Ground 1 is misconceived, if it suggests that this gives rise to obligations on the Tribunal of a jurisdictional nature (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [35]- [36], citing Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], [108]-[109], [158], [179]). A similar construction has been taken of the Tribunal’s obligation under s.422B(3) “to act in a way that is fair and just” (see Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [17]-[18]).
25. The first particular of Ground 1 is difficult to comprehend, if only because neither the applicant nor Counsel for the Minister were able to identify its factual basis. There is no document in the Court Book which I was able to identify containing evidence that the Department of Immigration had the opinion attributed to it. However, assuming that somewhere the applicant or one of his helpers has seen a neutral report from the Department’s document examination unit as to the authenticity of the warrants produced by the applicant, and that such evidence was before the Tribunal, I would still not be persuaded that the Tribunal’s reasoning discloses jurisdictional error in relation to its treatment of the warrants. It was open to the Tribunal to form an opinion as to the corroborative weight to be given to such documentation, in the light of its assessment of the applicant’s own credibility as revealed by examining his testimony (see WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70], and Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [59]- [68], [74]).
26. The references in particulars 2 and 3 to s.427(1)(b) are obscure. That paragraph gives the Tribunal a power to “adjourn the review from time to time”. The present Tribunal did adjourn its hearing once, no doubt exercising that power. Neither the applicant nor his agent asked the Tribunal to further adjourn its review, and it is difficult for me to see any basis upon which the Tribunal should have further adjourned the making of its decision.
27. In particular, I do not consider that the Tribunal was under any legal obligation to adjourn, so as to engage in further investigations as to the authenticity of the documents presented by the applicant, either by itself or by requesting the Secretary to conduct investigations pursuant to s.427(1)(d). It has been well-established in the Federal Court that the exercise of the Tribunal’s discretion in relation to investigation is not vitiated by a failure to investigate, except in exceptional circumstances (cf. Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [77], and SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592; (2007) 164 FCR 14 at [59]- [60]). This line of authority may have survived the High Court’s judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (see [25]). Assuming that it has, I can find nothing in the present circumstances satisfying the principles which have been articulated in the Federal Court. Importantly, the argument presented in particular (iii) of Ground 1 does not explain how inquiries “of the PRC authorities directly” could properly have been made by the Tribunal, nor how they would have clearly resolved the Tribunal’s concerns about these documents.
28. I have therefore not been able to identify any jurisdictional error arising under any of the contentions made in Ground 1.
29. Grounds 2 and 6 of the amended application appear to challenge the Tribunal’s reasoning on grounds of illogicality or unreasonableness. There is current authority binding on this Court that would allow a court on judicial review to find a failure to exercise jurisdiction if a Tribunal presented a justification for its decision which was entirely unpersuasive in articulating a logical and rational basis for an adverse assessment of an applicant’s evidence and claims. Moore J in SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 identified relevant authorities, and his judgment is binding upon me while it is under appeal in the High Court. However, I would not characterise the present Tribunal’s reasoning as being “based squarely on an illogical process of reasoning” (see SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 at [29]), nor does it have the character found by Gordon J in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 as a decision relying only upon minor or trivial inconsistencies or admissions in evidence.
30. The present Tribunal, in my opinion, appropriately tested the credibility of the applicant’s story by addressing the inherent plausibility of its key elements. In my opinion, it was not unreasonable nor illogical for the Tribunal to assess the inherent likelihood of the applicant’s story of persecution having occurred as claimed. A tribunal of fact is always entitled to assess evidence by considering the “apparent logic of events” (see Gleeson CJ in Fox v Percy [2003] HCA 22 at [30] – [31]). This may become a very significant consideration, even a dominant consideration, in circumstances where an applicant appears to have ready access to dubious documentation, and has a conceded history of false identity and fraudulently obtained travel documents. Of course the Tribunal must always weigh all of the applicant’s oral and documentary evidence before coming to its conclusion, but I am not persuaded that the Tribunal did not do this in the present case.
31. I therefore would not accept any of the characterisations of the Tribunal’s reasoning which are contended in Grounds 2 and 6, and am not persuaded that they have identified jurisdictional error.
32. Grounds 3, 4, and 5 of the amended application challenge the Tribunal’s reasoning in relation to the applicant’s activities in Australia. Although the Tribunal’s reasoning was condensed into one paragraph, extracted above, the Tribunal had earlier fully recited the evidence of the applicant and his supportive witness and documentation. There is no doubt that the Tribunal took that material in to account, in the sense of being aware of it and considering it.
33. The Tribunal was bound by s.91R(3) of the Migration Act to consider whether the applicant’s participation in Falun Gong activities in Australia was otherwise than for the purpose of strengthening his refugee claims, before relying upon that evidence to find him to be a person to whom Australia owed protection obligations. The Tribunal’s conclusion that it was not so satisfied, reveals no error in its application of section 91R(3), and I am unpersuaded that there was any evidence which the Tribunal should have treated differently, concerning these activities.
34. I am therefore unpersuaded that Grounds 3, 4, and 5 have established any jurisdictional error affecting the Tribunal’s decision.
35. The applicant’s oral submissions today emphasised a concern that he has not been told by the Department of Immigration anything which would “confirm my identity”. He complained that he thought that the Department of Immigration had recently conducted further inquiries about his identity, but it had not told him which of his two names it would accept as his true identity. There is evidence that the applicant has been in doubt about how he should make applications and write documents while he has been in Australia, and I can understand that he would like to be told officially under which of his two names he should conduct his affairs in Australia.
36. However, I do not consider that this concern has pointed to any jurisdictional error affecting the present Tribunal’s decision. As I have noted, the present Tribunal gave the applicant the benefit of the doubt in relation to his claimed identity as W, and assessed his refugee claims on an assumption that he is the person with the name he has claimed most recently.
37. The applicant also criticised the Tribunal’s reasoning as being based on “subjective opinions” and not being “objective”. However, I think that this criticism points to no more than that the Tribunal, when weighing the applicant’s credibility, arrived at its own opinion as to his veracity and was not persuaded as to the authenticity and truth of his documentation. As I have explained above this did not involve any jurisdictional error, and it was the statutory duty of the Tribunal to arrive at its own opinion about the applicant’s veracity.
38. Taking in to account all that the applicant has said to me today, I am unpersuaded that he has made out any ground of jurisdictional error upon which I can set aside the Tribunal’s decision. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 19 February 2010