SZLZX v Minister for Immigration and Citizenship

Federal Court of Australia|2009-03-11|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Barnes FM delivered on 25 September 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. 2 There was no appearance in Court by the appellant this afternoon. The Minister had legal representation. I asked the Court officer in Sydney to call the matter outside the courtroom but there was no answer by the appellant. I adjourned the hearing to allow by associate with the assistance of the interpreter to attempt to contact the appellant by telephone. My associate has informed me that she was unable to contact the appellant.

BACKGROUND 3 The appellant is a citizen of China who arrived in Australia on 16 July 2007. On 20 July 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 15 August 2007. On 15 September 2007 the appellant applied to the Tribunal for a review of that decision. 4 The appellant claimed to have a well founded fear of persecution due to his practice of Falun Gong. He claimed that from August 1997, after being introduced to Falun Gong by a friend, he began to practice at his friend's house about three times a week. He claimed that after Falun Gong was banned in 1999, he was warned that he would be fired if he continued to practice, however he did continue to practice and he was forced to move from his workplace in Kaifeng to work in Zhoukou city. He stated that in March 2002 he was detained by police for practising Falun Gong and was sent to a labour education camp for one year. He said that he continued to practice secretly after his release, and that he heard that other practitioners were arrested, imprisoned and tortured by the police. He decided to flee China to avoid being arrested and tortured again.

PROCEEDINGS BEFORE THE TRIBUNAL 5 In summary, the Tribunal stated that while the appellant was able to provide some information on Falun Gong, it was not satisfied that the appellant was a genuine Falun Gong practitioner. Further, the Tribunal did not accept that he had practised Falun Gong in China, that he had been forced to move within China for being a Falun Gong practitioner, that he was detained in a labour camp for one year from March 2002 for being a Falun Gong practitioner, or that he would be placed in prison on his return to China for being a Falun Gong practitioner. 6 Because independent country information indicates that many documents are forged (as was put to the appellant by the Tribunal at the hearing), the Tribunal placed little weight on the documents supplied by the appellant as evidence of his detention or his claim that he would be imprisoned for being a Falun Gong practitioner on his return to China. Having concluded that the appellant was not a Falun Gong practitioner, the Tribunal did not accept that the scars on his body were supportive evidence that he was detained in a labour camp.

THE FEDERAL MAGISTRATES COURT 7 On 26 February 2008 the appellant filed an application for judicial review of the Tribunal's decision. In his application the appellant contended that the Tribunal: 1. Did not properly consider his claims in assessing the chance of persecution on his return to China. 2. Did not provide him with adequate opportunity to substantiate his claims. 8 The Federal Magistrate found nothing in the material before the Court to establish that the Tribunal misunderstood or failed to consider the appellant's claims. Her Honour stated that the Tribunal findings as to the appellant's credibility were a matter for the Tribunal, and were open to the Tribunal on the material before it. 9 In relation to the second ground, her Honour noted that the appellant attended the Tribunal hearing and gave evidence. The Tribunal raised with the appellant a number of issues at the hearing and gave him the opportunity to provide further information and to comment in writing on the matters that it raised with him, an opportunity which the appellant took. Her Honour noted that the Tribunal addressed this material provided after the hearing. Her Honour concluded that there was no evidence that the hearing was conducted unfairly, and was satisfied that the Tribunal put the dispositive issues to the appellant as required by s 425 of the Act. 10 The Federal Magistrate then dealt with the appellant's contention, raised in oral submissions, that the Tribunal did not accept his credibility or accept that the documents established that he had experienced the claimed events. Her Honour noted that one issue was whether the Tribunal rejected the appellant's supporting documents or decided to place no weight on the documents merely on the basis of independent country information. Her Honour found that, in light of having rejected the appellant's credibility, the Tribunal placed no weight on the documents provided by the appellant as evidence of his detention. Her Honour observed that the Tribunal's reasoning was that because the appellant lacked credibility, the Tribunal could not be satisfied with evidence allegedly corroborating his claims, particularly taking into account the additional factor of the independent country information. Her Honour was satisfied that this approach of the Tribunal did not disclose a jurisdictional error. 11 Her Honour then considered whether the Tribunal complied with s 91R(3) of the Act. Her Honour found that the Tribunal did not rely on the conduct the appellant claimed to have engaged in Australia to assess his case. Rather the Tribunal recounted the evidence given by the appellant and gave reasons why it rejected his explanation for his lack of knowledge of Falun Gong. Her Honour was satisfied that the Tribunal did not have regard to conduct in a manner which was contrary to the requirement to disregard conduct under s 91R(3) of the Act. 12 Finally, her Honour addressed the appellant's contention made in oral submissions that there were problems with the translation. Her Honour found that in the absence of any evidentiary basis for a claim based on language differences, this contention could not establish jurisdictional error. 13 Having found no jurisdictional error, her Honour dismissed the application.

APPEAL TO THIS COURT 14 By Notice of Appeal filed on 30 September 2008, the appellant raised the following grounds of appeal against the decision of Barnes FM: 1. RRT assumed my release from detention documents were not genuine. 2. RRT incorrectly decided I was not a genuine Falun Gong practitioner because I don't speak English which caused confusion when I explained my claims at RRT hearing. 15 The Minister filed written submissions and was represented by a solicitor at the hearing. The appellant filed no written submissions.

CONSIDERATION 16 In my view the grounds of appeal cannot be substantiated. 17 The first ground of appeal appears to allege bias on the part of the Tribunal. To the extent that this allegation is made, I note that such an allegation is a serious matter, which is not to be lightly made and must be clearly alleged and proved: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361 at [43]. In this case there is no evidence of bias, either actual or apprehended, in the deliberations of the Tribunal. Rather, as demonstrated by the reasoning of the Tribunal, the Tribunal concluded that the appellant's documentation was not genuine because, in summary: · independent country information indicated that many documents are forged; · the Tribunal concluded that the appellant was not truthful in his overall claims. 18 The learned Federal Magistrate, in considering the issue, found that the Tribunal had reasoned that, because the appellant could not be believed, the Tribunal could not be satisfied with the documents tendered in alleged corroboration. Her Honour noted further that the Tribunal had concluded, even before examining the documents, that the appellant was not being truthful and was not a genuine Falun Gong practitioner. Accordingly, her Honour found that, notwithstanding the presence of the documents, in light of its adverse findings as to the appellant's credibility the Tribunal placed no weight on the documents as evidence of his detention. This approach does not give rise to jurisdictional error. As observed by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 70: In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant. 19 In relation to the second ground of appeal her Honour found there was no evidentiary basis for a claim based on language differences (SZLZX v Minister for Immigration & Citizenship [2008] FMCA 1390 at [42]). No submissions have been put to me which suggests her Honour erred in this finding. 20 The appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 11 March 2009 Solicitor for the Appellant: The Appellant did not appear

Solicitor for the First and Second Respondents: Ms E Knight for the Australian Government Solicitor

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