SZJRT v Minister for Immigration and Citizenship [2008] FCA 103 (19 February 2008)

Last Updated: 20 February 2008

FEDERAL COURT OF AUSTRALIA

SZJRT v Minister for Immigration and Citizenship [2008] FCA 103

SZJRT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1824 OF 2007

COLLIER J
19 FEBRUARY 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1824 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE OF ORDER:	19 FEBRUARY 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

2. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1824 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE:	19 FEBRUARY 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of Federal Magistrate Smith of 23 August 2007 dismissing an application for judicial review of a decision of the second respondent ("the Tribunal") handed down on 2 November 2006 (SZJRT v Minister for Immigration & Anor [2007] FMCA 1584). The Tribunal had affirmed a decision of a delegate of the first respondent ("the Minister") to refuse the grant of a protection visa to the appellant.

Background

2 The appellant is a citizen of the People’s Republic of China who arrived in Australia on 6 March 2006 and applied for a protection visa on 20 April 2006 with the Department of Immigration and Multicultural Affairs ("the Department") (as it was then known). Although the appellant entered Australia on a Korean passport, she claimed to be a Chinese citizen and submitted a copy of a Chinese identity card and a Chinese passport.

3 The appellant claimed to have well-founded fear of persecution for her practice of Falun Gong. The appellant claimed in her protection visa application to have practised since July 2003 and that on 14 May 2005 the Chinese authorities found she was a practitioner. She was called into the Public Security Bureau (PSB) office, warned, forced to write a confession, and fined. She was released on 24 May 2005. On 25 December 2005 a fellow practitioner was arrested and the appellant subsequently went into hiding. She claimed that since arriving in Australia she has practised Falun Gong and participated in other Falun Gong activities to expose the authorities’ practises against Falun Gong.

4 The appellant sent to the Department various documents relating to her claims, including two alleged summonses and two warrants issued by the Public Security Bureau (PSB) for the appellant, a local government circular seeking assistance with the arrest of the appellant, and a statutory declaration by a fellow Falun Gong practitioner in Australia dated 21 April 2006.

Proceedings before the Tribunal

5 Before the Tribunal the appellant submitted the delegate’s decision with her application for review, and subsequently provided further information as to her activities in Australia. She indicated she was involved in various activities, including distributing leaflets in Sydney and joining a protest outside the Chinese Consulate.

6 The appellant attended a hearing before the Tribunal on 6 October 2006 and gave oral evidence with the assistance of a Mandarin interpreter. At the hearing, the Tribunal received oral evidence from three witnesses invited by the appellant, including a person claiming to be a fellow practitioner of Falun Gong with the appellant in Australia. The Tribunal discussed with the appellant her departure from China, passports, and her knowledge and practice of Falun Gong. The appellant gave evidence that she had departed China legally to enter Malaysia and subsequently Korea and Japan. She had then travelled to Australia on a photo-substituted Korean passport.

7 On 10 October 2006 the Tribunal received a letter from another person claiming to be a Falun Gong practitioner who had not signed previous statements submitted by the appellant, indicating an inability to attend the Tribunal hearing as a witness. The next day, the Tribunal made a decision not to recall its decision on the application. The Tribunal handed down its decision on 2 November 2006.

8 The Tribunal considered all the evidence and accepted the appellant was a citizen of China. From the evidence provided at hearing, the Tribunal observed that the appellant showed a limited knowledge of the fundamental philosophy of Falun Gong. It also noted that it appeared her knowledge of Falun Gong was learnt from attending Falun Gong activities in Sydney but even that knowledge was shallow for a person claiming to be a devout and constant practitioner who had involvement in public anti-PRC political activities. The Tribunal then found that:

[T]hese latter-day activities have been established to give verisimilitude to her FG practice and as a purported PRC opponent post arrival in Australia. Her aim is also to give her case credibility for the purposes of this review and her PV application.

9 It was not satisfied from the oral evidence that she was a genuine Falun Gong practitioner in China or that she had evidence she was a vigorous practitioner in Australia.

10 The Tribunal then addressed the issue of the appellant’s flight and arrival to Australia. It found her answers were unsatisfactory and vague and concluded she was a person of poor credibility as a witness. The Tribunal considered country information relating to departures from China and found that:

The Tribunal has presented the applicant with country information concerning PRC law on FG practitioners. This information was elaborated in the hearing along with Department information on visa issue protocols for PRC citizens and the applicant’s own claims of PSB harassment in her home town. This information flies in the face of the applicant’s claim to have fled China free of harassment at her departure point in Beijing. From the claims of the applicant to be a well known FG practitioner and under the circumstances of PRC law and vetting protocols for its citizens who are bona fide travellers – it would appear to be nigh on impossible for her to have exited Beijing airport without drawing the attention of the authorities. That scenario is predicated, of course, on the premise that the applicant’s documents were not bogus (as are many PRC documents according to country information) and that she was, as claimed, a genuine PRC practitioner in the PRC.

...

The Tribunal observes from country information that the applicant’s use of a valid PRC passport with her ID details corresponding with the ID details on her claimed PSB summonses would (under Chinese Law) ordinarily disenable her from exiting the PRC as a normal airline passenger and, in fact, her departure would have immediately been drawn to the attention of the airport PSB authorities.

11 In view of the appellant’s poor credibility, the Tribunal found her account of the details of her departure implausible where there had involved various complicated bookings, and yet she had not drawn the attention of the authorities.

12 The Tribunal considered country information indicating that forgery and falsification of documents was commonplace in China, and did not accept that the documents she had submitted were truthful and valid.

13 It was not satisfied she was. Consequently, the Tribunal was not satisfied the appellant was subject to police detention or interest, and not satisfied that she had a well-founded fear of persecution for a Convention reason.

Decision of the Federal Magistrate

14 By application filed on 15 November 2006 the appellant sought to review the decision of the Tribunal in the Federal Magistrates Court. Before the Federal Magistrate, the appellant was represented by counsel, and claimed that there was a breach of s 424A(1) of the Migration Act 1958 (Cth) ("the Act") in relation to documents submitted to the Department in support of the protection visa application and, further, that they were not within the exception in s 424A(3)(b). The relevant documents were:

1. Two summonses issued against the appellant by the Public Security Bureau on 11 May 2004.

2. A circular issued by the appellant’s local government requesting the community’s assistance in the appellant’s arrest.

3. Two arrest warrants issued against the appellant by the Public Security Bureau dated 20 March 2006.

15 Counsel for the appellant submitted that these documents were used by the Tribunal in conjunction with country information to find the appellant would not be able to exit China as a normal airline passenger.

16 The Federal Magistrate considered the submissions by both parties but found that on the balance of probabilities the appellant did not physically re-present copies of the documents to the Tribunal. However, his Honour was of the view that the appellant had given the documents to the Tribunal, finding the appellant had implicitly invited reliance on them at hearing:

17. As I have indicated, the delegate’s decision record made clear that these documents had formed part of the material initially presented to the Department to establish a history which she invited the Department to accept. By forwarding a copy of this reasoning with her application for review, the applicant implicitly was also inviting the Tribunal to address and accept the case which she had previously presented to the Department.

18. In that context, the Tribunal’s reference to these documents at the hearing, in my opinion, shows it inviting the applicant to affirm her reliance on the contents of those documents. As I have extracted above, the Tribunal clearly identified the particular documents it was discussing with her, being the two 2004 summonses and the two 2006 arrest warrant documents, including by reading parts of them to her. It then put to her: "is that true, what’s written there in that document?", and the applicant said: "yes they are true". The Tribunal then put to her its concern arising from the documents that she would not have been permitted to depart China, and she gave certain explanations which will appear further below.

19. In my opinion, what happened in relation to these documents at this point in the hearing accords with the analysis of Young J in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195. From the applicant’s perspective the contents of the documents formed an important part of the claims and materials which she originally presented in support of her history of persecution and fear of future persecution. The applicant’s reliance on those documents again before the Tribunal was in a sense "uncontentious", and I consider that the present situation fits the analysis of Young J at [59]-[61] of NBKT. In my opinion, the applicant gave to the Tribunal, in her response to the Tribunal’s initial identification of the documents, an affirmation of her reliance on the truth of those documents, and an invitation to the Tribunal to rely upon their contents (compare also Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [17]).

17 Consequently, his Honour found the documents came under the exception in s 424A(3)(b) of the Act.

18 Further, his Honour found that the information was not a reason or a part of the reason for affirming the decision under review. His Honour was of the opinion that the reasoning of the Tribunal in relation to this information was of the same character as identified in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. The Tribunal in referring to these documents did not accept them but was simply stating that the information was inconsistent with the claims to be able to leave China free from harassment. His Honour indicated that the reason for decision was the lack of satisfaction with the veracity of the claims. In relation to that section of the Tribunal’s decision, the information that was used by the Tribunal to undermine the claims was the country information, however that information was exempted by s 424A(3)(a) of the Act.

19 As the ground of review raised by the appellant did not establish jurisdictional error, the Federal Magistrate dismissed the application.

Appeal to this Court

20 On 6 September 2007 the appellant filed a Notice of Appeal in this Court challenging the Federal Magistrate’s decision on two grounds, namely:

1. The Federal Magistrate erred in concluding the Tribunal did not fail to comply with the requirements of s 424A of the Act.

2. The Federal Magistrate gave reasons for judgment ex tempore and at the time of filing the Notice of Appeal these reasons had not yet been given in writing.

21 At the hearing of the appeal before me the appellant was not represented by counsel. The appellant said that she had expected to be represented at the hearing by the same court-appointed solicitor who had appeared on her behalf in the court below, and had only learned on 15 February 2008 that she would not be so represented in this court. Accordingly, the appellant asked for more time to arrange another lawyer to assist her. Although I was prepared to stand the matter down for a short time if necessary to allow the appellant to gather her thoughts, I was not prepared to adjourn the hearing to another day, in light of the facts that the appellant had been aware of his Honour’s decision since August last year, and it was the appellant’s responsibility to organise legal representation if she so required, and no satisfactory reasons had been presented to warrant such adjournment.

22 Mr Reynolds for the first respondent submitted that no error on the part of the Federal Magistrate had been identified by the appellant. In relation to the information relevant to the appellant’s claim concerning s 424A, Mr Reynolds submitted in summary:

• although there is no evidence that the material provided to the Department was physically "given" by the appellant to the Tribunal, the Federal Magistrate was nonetheless correct in finding that the appellant "gave" the relevant information to the Tribunal for the purposes of s 424A(3)(b) applied (NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195). This was because the appellant affirmed to the Tribunal at the Tribunal hearing that the content of the relevant information was true and the appellant’s reliance on those documents was not contentious

• in any event, the Federal Magistrate was correct in finding that the relevant information was not a reason or a part of the reason for the Tribunal’s decision, in that it was not information which contained a "rejection, denial or undermining" of the appellant’s claims to be a refugee (SZBIR v Minister for Immigration and Citizenship [2007] HCA 26). The information the Tribunal acted upon was the problems it observed in the appellant’s evidence and the adverse country information it had received.

23 In relation to the appellant’s second ground of appeal, Mr Reynolds submitted that the appellant received his Honour’s reasons on 23 August 2007 when his Honour gave his judgment ex tempore, and in any event the appellant had subsequently received his Honour’s written reasons (including a copy in the Appeal Book).

24 In my view the grounds of appeal of the appellant have no substance. I am persuaded by the submissions of the first respondent that no error has been demonstrated in his Honour’s conclusion or his reasons. I also consider that the fact that his Honour gave judgment ex tempore, in circumstances where the appellant received his Honour’s written reasons subsequently, is not a competent basis of appeal.
THE COURT ORDERS THAT:

1. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".

2. The appeal be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 19 February 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	P Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008