SZIAT v Minister for Immigration and Citizenship

PRELIMINARY MATTERS 10 The appellant seeks prerogative relief of the kind issued in the exercise of the Court's original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the Federal Magistrates Court under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"). The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error: Allesch v Maunz (2000) 203 CLR 172 at [23]. Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 11 For reasons outlined below, I am not satisfied that the decision of the Federal Magistrate is affected by any error, whether as alleged or at all.

ANALYSIS 12 The notice of appeal filed in this Court on 20 February 2008 is identical to the amended application but for an inconsequential alteration to the wording of ground four, and the addition to each ground of the phrase "Federal Magistrate Nicholls dismissed this ground of review. His Honour erred in making this finding." 13 As noted earlier, on 21 May 2008, the appellant indicated thorough her Counsel that she no longer wished to press paragraph 4 of the grounds of appeal.

Ground 1 - Failure to Determine Claims 14 The appellant submitted that the Tribunal, in relation to three separate matters, failed to determine a claim made by the appellant and thereby fell into jurisdictional error: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [55] and [63]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45] and [47]. 15 The three complaints were as follows. First, that she is a genuineFalun Gong practitioner and although she had not practised Falun Gong in public in China since July 1999, she wished to practise Falun Gong in public now and in the future. However, should she be required to return to China, she would fear persecution if she practised Falun Gong in public. Secondly, that the appellant fears persecution if she were to return to China because she had come to Australia to visit her brother who was "blacklisted" by the Chinese Consulate in Sydney and he is a person of interest to the authorities in China. Thirdly, that she will be persecuted in China as a result of making claims and providing information to the first respondent while she pursued her protection visa application. The third matter was not pursued on appeal. 16 I can identify no jurisdictional error. 17 As was submitted by the first respondent: 1. The Tribunal is obliged to apply the criteria for a protection visa and consider the appellant's claims relating to those criteria: Htun 194 ALR 244 at [42]. 2. While a failure by the Tribunal to make findings in respect of the factual contentions that underlie claims may indicate that it failed to consider an applicant's claim, the Tribunal is not obliged to make findings in respect to every individual piece of evidence: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]-[68], [73]-[74], [77], [89] and [91]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] and [95]. 3. Where a Tribunal makes general findings that subsume factual contentions, a court should not readily infer that the appellant's claims were not considered: Yusuf 206 CLR 323 at [67]-[68], [73]-[74], [77], [89] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; WAEE 75 ALD 630 at [47] and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]. 18 In light of those principles, the first respondent submitted that each of the matters that the appellant contended the Tribunal had failed to address must be seen in the context of the findings actually made by the Tribunal, namely, general adverse findings as to the credibility of the appellant. The first respondent submitted, and I accept, that those findings subsumed the factual contentions now complained of. The general adverse findings as to credit made by the Tribunal were extracted in the Federal Magistrate's reasons (SZIAT v Minister for Immigration & Anor [2008] FMCA 44 at [28]) as follows: I accept that the [appellant] is a citizen of China, however, I find that the evidence on which she has sought to base her claim for refugee status is riddled with inconsistencies, contradictions, and implausibilities, and I set these out below. And further: After careful examination of the [appellant's] claim for refugee status based on her being a Falun gong practitioner in China and of interest to the authorities in China, I am satisfied that this claim is without any foundation and is a complete fabrication. 19 In essence, the Federal Magistrate understood the submission of the first respondent to be that if the Tribunal found the appellant's credibility "so weakened", those parts of the materials put forward as claims by the appellant and proffered as evidence by the appellant in support of her claim to fear persecution in China, were treated by the Tribunal as being no weight because, in the words of McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] "the well has been poisoned beyond redemption". 20 The Federal Magistrate accepted the submissions of the first respondent. The Federal Magistrate noted that the Tribunal dealt with each aspect of the appellant's claim as it was said to derive from the situation, and her experiences, in China. It looked at: · the situation as it related to the practice of Falun Gong in China and the appellant's claims in this regards; · the circumstances of her employment in China, and her claims as they derived from this; · the appellant's own evidence regarding the way in which she obtained Chinese passports and her travel in and out of China; · the interest of the authorities, in particular the police, in the appellant in China as it was said to arise from her claim that she had hung up banners in a public place. 21 The Federal Magistrate noted that the Tribunal made adverse findings against the appellant following its consideration of each of these claims, and therefore "comprehensively rejected as a 'complete fabrication' her claims to be a refugee because she was a Falun Gong practitioner in China, and of interest to the authorities": SZIAT [2008] FMCA 44 at [38]. 22 The appellant's reliance upon WAEE 75 ALD 630 at [46]ff as authority for the proposition that the Tribunal was obliged to expressly deal with each of the matters referred to above (see [15]) is misconceived on a number of bases. First, the submissions ignored the principles identified in [17] above. Secondly, as the Full Court said in WAEE 75 ALD 630 (at [47]) although an "inference that the [T]ribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons", "that is an inference [that] should not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point". In the present matter, on any view, the Tribunal identified the issues and dealt with them and its reasons for decision were otherwise comprehensive. Thirdly, in WAEE 75 ALD 630 at [27], the Tribunal regarded "some parts of the appellant's claims as not credible". In the present case, the Tribunal "comprehensively rejected as a 'complete fabrication' her claims to be a refugee because she was a Falun Gong practitioner in China and of interest to the authorities". 23 No error is demonstrated by showing only that a Court has made a decision with which the litigant disagrees. The appellant must demonstrate that the Federal Magistrate failed to apply the correct principle. She does not. The ground of appeal is dismissed.

Ground 2 - s 91R(3) of the Act 24 The appellant submitted that the Tribunal erred in its application of s 91R(3) in three respects. First, that "corroborative evidence" (in the form of statutory declarations from fellow Falun Gong practitioners in Australia as to the appellant's Falun Gong activities in Australia) was not considered. Secondly, that there was no evidence to support the Tribunal's finding that the appellant was "a minor participant in [Falun Gong] activities" in Australia. Thirdly, that the Tribunal failed to consider whether the appellant engaged in Falun Gong activities in Australia for more than one reason. The second and third aspects of this ground of appeal were not pursued at the hearing. 25 Section 91R(3) of the Act, relevantly provides that for the purposes of determining whether a person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention, any conduct engaged in by the person in Australia is to be disregarded "unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol". 26 In respect of the first allegation, the appellant submitted that although there was a "great deal" of evidence put forward to the Tribunal as to the appellant's Falun Gong activities in Australia that corroborated the appellant's claim, the Tribunal erred by failing to make reference to this evidence anywhere in its decision: Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 at [23]; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [26]-[27]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212]-[213]. 27 The Federal Magistrate rejected this submission. I can identify no error in the reasons for decision of the Federal Magistrate. The appellant's submissions are contrary to authority and contrary to the facts. 28 First, the Tribunal is not required to refute, line by line, the corroborative material given by the appellant: Re Minister for Immigration and Multicultural Affairs; Ex parte Duraurajasingham (2000) 168 ALR 407 at [67]. 29 Secondly, the Tribunal in fact referred to and considered the statutory declarations that the appellant relied upon as corroboration of her claims to have engaged in Falun Gong activities in Australia. At the hearing, the appellant sought to challenge the manner in which the Tribunal described the statutory declaration including: 1. that although the statutory declarations were attached to the application for review, they bore different dates; 2. the Tribunal referred to "several" statutory declarations when there were about "sixteen" (there were in fact 19 listed in the appeal book); and 3. the appellant was described as "a minor participant in [Falun Gong] activities" in Australia. 30 These complaints are without foundation. As noted by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272: [T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. Further, the matters identified by the appellant (even if accepted) would not provide any answer to the Tribunal's credibility findings referred to in [19] above. 31 Thirdly, the Tribunal accepted that evidence in so far as it demonstrated her attendance at Falun Gong gatherings in Australia. As the Federal Magistrate noted SZIAT [2008] FMCA 44 at [64]-[65]: The [appellant's] claim in this regard, namely, that the Tribunal did not have regard to this material does not succeed in my view, because the Tribunal did not find that the applicant had not engaged in any Falun Gong activities while in Australia … It plainly accepted that she did attend Falun Gong gatherings after her arrival. … I do not agree that the Tribunal failed to consider the "large" body of evidence before it as to the [appellant's] activities in Australia. 32 However, the Tribunal did not accept that the statutory declarations demonstrated that the appellant engaged in that conduct for a purpose other than for strengthening her claims to be a refugee. 33 That conclusion was not surprising. The Tribunal found that the appellant's claims regarding her conduct in Australia were a complete fabrication and that her conduct in Australia was for the sole purpose of strengthening her claim for refugee status. That course was open to it and does not reveal error: Applicant S20/2002 198 ALR 59 at [12] and [49]. It was both open to the Tribunal and does not reveal error because the Tribunal found that the appellant's own evidence (1) was comprised of "inconsistencies, contradictions and implausibilities" and (2) was "vague, rambling and generally incoherent" and "incoherent and garbled". Those findings were material to the Tribunal's assessment of the genuineness of the appellant's claims including the Tribunal's consideration of whether the appellant engaged in the conduct for a purpose other than for strengthening her claims to be a refugee. Put another way, the Tribunal's findings were general findings as to credit which subsumed all of her claims. 34 In relation to the first alleged error arising under the Tribunal's application of s 91R(3), the Federal Magistrate ultimately concluded that (SZIAT [2008] FMCA 44 at [69]): … what cannot be avoided counting against the [appellant's] argument, is that the Tribunal found her conduct in Australia, albeit Falun Gong related conduct, to be conduct engaged in for no reason other than to enhance her refugee claim. In the circumstances, this was a finding that was open to the Tribunal to make. There has been no demonstrated error on behalf of the Federal Magistrate in coming to this conclusion. 35 The appellant must demonstrate that the reasoning of the Federal Magistrate was affected by some factual or legal error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] and MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]. I can identify no error in the Federal Magistrates' consideration of the Tribunal's findings. This ground of appeal is dismissed.

Ground 3 - s 424A of the Act 36 The appellant submitted that the Tribunal failed to comply with its obligations in respect of additional information pursuant to s 424A in two ways: first, the Tribunal used information given by the appellant's brother to make adverse findings against the appellant and, secondly, that the appellant gave information to the department of the first respondent as to the number of Falun Gong banners she hung in public places. This was later found by the Tribunal to be inconsistent with later claims. Only the first issue was pursued on appeal to this Court. 37 Before the Federal Magistrate, the appellant submitted that this information was used by the Tribunal as "part of the reason for affirming the decision under review" and that in both circumstances, the Tribunal failed to put this information to the appellant in compliance with s 424A(1) and (2). 38 I can identify no error in the reasons for decision of the Federal Magistrate. The testimony of the appellant's brother did not constitute a "rejection, denial or undermining" of the appellant's claims to be a person to whom Australia owed protection obligations and therefore was not information that formed part of the reason for decision: SZBYR 235 ALR 609 at [17]. The inconsistencies between the brother's testimony and the testimony of the appellant was not information and therefore not subject to s 424A(1): SZBYR 235 ALR 609 at [18]. 39 Further, the evidence of the appellant's brother was called on by the appellant. It was information given by the appellant for the purpose of her application for review and is therefore excluded information: s 424A(3)(b) of the Act (see also VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at [44] and SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653 at [24].

Ground 4 - breach of procedural fairness 40 The appellant did not pursue this ground of appeal.

CONCLUSION 41 For those reasons, the application is dismissed and the appellant should pay the first respondent's costs to be taxed in default of agreement. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 26 May 2008 Counsel for the Appellant: Mr Ben Zipser

Solicitor for the Respondent: Australian Government Solicitor