SZMGU v Minister for Immigration and Citizenship

THE TRIBUNAL DECISION 4 The Tribunal did not accept that the appellant was a credible witness. In support of this conclusion, it cited a number of inconsistencies in the appellant's account, including: his failure to raise the claim regarding torture in April 2000 in his initial application; differing accounts of the identity of the police office which detained the appellant in 2000; his failure to approach a doctor regarding an alleged spinal injury, suggesting that the injury had not occurred; and differing accounts of whether the appellant had had any problems in obtaining a passport. 5 The Tribunal accordingly rejected the appellant's claims that he had been arrested and detained on two occasions in 2000. It found that he had not been a Falun Gong practitioner in Australia or in the PRC and that his evidence of Falun Gong practice in Australia was not genuine and was merely an attempt to bolster his protection visa claim. 6 The Tribunal did not accept the authenticity of a Falun Gong membership card provided by the appellant that suggested the appellant had attended a Falun Gong course and graduated. It noted country information to the effect that Falun Gong groups have neither formal membership nor an initiation. 7 The Tribunal rejected witness evidence provided by the appellant. It rejected the evidence of his son in view of the inconsistencies arising from the adverse credibility findings it made in relation to the appellant. It did not give weight to evidence given by Mr Zheng due to the fact that his written statement was unsworn and because it could not test his evidence due to the fact he did not attend a Tribunal hearing, despite the Tribunal's request that he do so. 8 The Tribunal concluded that there was no real chance that the appellant would face serious harm for reasons of his alleged membership of a social group. In these circumstances, the Tribunal was not satisfied that the appellant held a well-founded fear of Convention-related persecution in the PRC.

APPLICATION IN THE FEDERAL MAGISTRATES COURT 9 By application filed in the Federal Magistrates Court of Australia on 16 May 2008, an amended application filed on 22 September 2008 and a second amended application filed in Court on 23 October 2008, the appellant, who was legally represented, sought judicial review of the Tribunal's decision. 10 As summarised by Federal Magistrate Scarlett, the appellant claimed in the second amended application that: a) The RRT failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law in not acting judicially, or in failing to accord procedural fairness, in acting upon findings based on illogical and/or irrational reasons.

b) 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 by reason that the Tribunal made findings that were illogical and/or irrational.

c) In the alternative, if the Court is of the view that the impugned findings of the RRT above are based on an assumption that the Applicant was detained in April 2000, then the RRT failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law by failing to take into account a relevant consideration.

11 Scarlett FM found that the findings of the Tribunal could not be described as 'illogical or irrational'. The illogicality referred to by the appellant was based upon the finding by the Tribunal that it did not believe that the appellant had been in detention in 2000 which did not sit with statements later in its decision where it said it did not believe that someone who was in detention would have practised Falun Gong openly so soon after detention as the appellant's account had suggested. His Honour expressed his understanding that the Tribunal was 'taking the Applicant's case at its highest, notwithstanding that it had already disbelieved his claim about his earlier detention'. His Honour also observed that the 'Tribunal's finding is a factual finding which is a matter for the Tribunal. It is of no significance that someone else hearing the claim on its merits might not have come to the same conclusion'. His Honour found that the Tribunal's finding was open to it on the evidence and it was not for the Court to undertake merits review. 12 In relation to ground two, Scarlett FM found that, contrary to the claims of the appellant, the Tribunal did take into account the appellant's claim to have been detained and tortured in July 2000, and concluded that the detention did not occur. His Honour stated that this was not a case where a 'matter can only be said to have been taken into consideration if it is accepted'. 13 In relation to the appellant's third ground, his Honour stated that the Court was not of the view that the impugned findings of the Tribunal referred to in grounds one and two were based on an assumption that the appellant was detained in April 2000. His Honour therefore rejected this ground.

APPEAL TO THIS COURT 14 On 8 December 2008 the appellant filed in this Court a Notice of Appeal from the decision of Scarlett FM. The appellant raises the following two grounds of appeal: 1. The Federal Magistrates [sic] Scarlett failed to consider the Tribunal erred in not having regard or proper regard to the Applicant [sic] claims.

2. The Federal Magistrates [sic] Scarlett failed to consider the Tribunal failed to exercise jurisdiction by the RRT erred in law in constructively failing to exercise jurisdiction.

SUBMISSIONS OF THE APPELLANT AND FINDINGS 15 The appellant appeared unrepresented but was assisted by an interpreter who translated the appellant's submissions as they were read by the appellant from a written document. The oral submissions of the appellant did not correspond with the two grounds raised in the Notice of Appeal. They appeared however to be particulars to the first ground of appeal, namely, that Federal Magistrate Scarlett failed to consider whether the Tribunal erred in not having regard or proper regard to the appellant's claims.

Appellant's first ground 16 The appellant referred to several particulars to his first ground of appeal which the Court will summarise. These were the Tribunal's dismissal of his Falun Gong certificate as proof of his membership of Falun Gong; the Tribunal's failure to consider his witnesses; the Tribunal's rejection of his alleged detention in April and July 2000; the Tribunal's rejection of evidence of his practice of Falun Gong in Australia which accordingly breached s 91R(3) of the Migration Act 1958 (Cth) ('the Act'); the Tribunal's belief that he would not be persecuted in the PRC despite his claim that he would not renounce his Falun Gong practice which would therefore lead to his persecution; and that the Tribunal did not consider his written and oral submissions in a reasonable and fair manner. By way of example to the last particular the appellant claims that the Tribunal did not ask him for details of the alleged raid upon his house in April 2007. 17 Though the particulars raised by the appellant are many, this is an appeal from the decision of Federal Magistrate Scarlett, not the decision of the Tribunal. Accordingly, the only question the Court must answer as to this ground of appeal is whether Scarlett FM erred in not considering whether the Tribunal paid appropriate regard to the appellant's claims. 18 In his judgment Scarlett FM referred extensively to the Tribunal's findings and to its reasons which comprehensively set out the appellant's claims and the reasons for their rejection. In his conclusion, Scarlett FM did not, in terms, discuss whether the Tribunal had paid appropriate regard to the appellant's claims. However, the appellant never raised such issue before his Honour. The appellant cannot maintain that Scarlett FM erred in his decision if such issue was not raised before his Honour. 19 If the appellant seeks to appeal on grounds not raised before the Federal Magistrate, leave is required to do so from this Court; see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. Leave may be granted if it is 'expedient in the interests of justice to allow the new ground to be argued and determined': see VAAC v Minister for Immigration and Multicultural Affairs (2003) 129 FCR 168 at [26]. Such considerations require the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26]. The Court will now consider the merits.

Merits of the appellant's particulars 20 Most of the particulars of the appellant's first ground of appeal, namely that the Tribunal failed to consider his claims are based upon facts determined by the Tribunal. For example, the Tribunal's finding that the membership certificate was not genuine; that the alleged detention(s) in 2000 did not occur; and that the appellant did not practise Falun Gong in Australia. The claim that the Tribunal did not have proper regard to such matters constitutes an attempt by the appellant to have this Court reject the factual findings of the Tribunal. However, such findings of fact cannot be questioned by this Court as to do so would be impermissible merits review: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. 21 To demonstrate a legal error in these factual findings, the appellant must demonstrate that there was no evidence at all for the findings of fact made by the Tribunal: see Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321. Deane J said at 367: When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

22 It cannot be said that there was no evidence for the findings of fact made by the Tribunal. It consulted independent country information and questioned the appellant extensively regarding the certificate, it highlighted a number of inconsistencies in regards to the claims regarding detention which led it to believe that the detention did not occur, and it pointed to the appellant's lack of understanding of Falun Gong as well as its belief that he was not a credible witness to conclude that he was not a Falun Gong practitioner. 23 The Tribunal's rejection of the appellant's witnesses was based on an assessment of their credibility. Such assessment is a matter for the Tribunal par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] and accordingly the Court is unable to revisit the Tribunal's conclusion. 24 The appellant's claim that the Tribunal breached s 91R(3) of the Act in relation to his practice of Falun Gong in Australia displays confusion concerning the nature of the section. The Tribunal relied upon such section to disregard photographs which showed the appellant participating in demonstrations and rallies on behalf of Falun Gong in Australia because it concluded that the appellant's claimed conduct in Australia had not been engaged in otherwise than for the purpose of strengthening his claim to be a refugee. Upon these factual findings, the Tribunal was entitled to apply the provisions of s 91R(3) of the Act. Such application is not in 'breach' of this section. 25 The final particular, namely that the Tribunal failed to treat his application in a reasonable and fair manner, is merely another way of claiming that the Tribunal did not have proper regard to the appellant's claim, that is, the first ground of appeal. 26 The Court is not persuaded that there is any merit to the claim that the Tribunal failed to have regard or proper regard to the appellant's claims. It therefore refuses to grant leave to appeal on such a ground.

Appellant's second ground 27 The Court cannot find any meaning in the appellant's second ground of appeal. Accordingly, the ground is rejected. 28 The appeal is therefore dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 26 February 2009 Counsel for the Appellant: Appellant appeared in person

Solicitor for the First Respondent: Australian Government Solicitor