SZMJE v Minister for Immigration and Citizenship

THE TRIBUNAL 7 The Tribunal said that it had listened to the tape of the hearing before the delegate and that the applicant made claims that "broadly coincided" with the claims made before the delegate. The applicant also claimed that his visit to Australia had been financed by his company as a reward. He also said that he had hosted a party at his house where he talked about Falun Gong. As a result he was taken to a police station and held for 24 hours. He stated that he was busy and did not practise often but he sponsored Falun Gong materials which were printed in his office. He claimed that he feared that he would be persecuted for having spoken at conferences and for giving support to the Falun Gong movement. The applicant also claimed that he wanted to organise Falun Gong to expose those things that were wrong in Chinese society. 8 The Tribunal found that the applicant's claim to be associated with Falun Gong lacked credibility. The Tribunal noted that the applicant knew nothing about the fundamental philosophy of Falun Gong and that his claim to want to organise Falun Gong practitioners to expose wrongs in Chinese society demonstrated a complete misunderstanding of the nature and purpose of Falun Gong. The Tribunal stated that it defied credibility that a person with such slight association or knowledge of Falun Gong would engage in the dangerous practice of printing Falun Gong material in his office. 9 The Tribunal also found that the applicant's claim that he was denounced to the security authorities and obliged to spend 24 hours at a police station as a result of remarks made at a dinner party at his house, lacked the detail necessary to be credible. The Tribunal rejected all of the applicant's claims. 10 The Tribunal said at [36] of its reasons: For these reasons, I do not need to consider what might be the implications of the inconsistencies between his written claims and later claims. I simply reject them all, individually and as a whole. I do not accept that the applicant has had any association of any kind with Falun Gong in China. I do not accept any claim that arises from that claimed association. 11 On the same day, namely, 21 May 2008, as the hearing, the Tribunal advised the applicant of its decision by the delivery of oral reasons.

THE FEDERAL MAGISTRATES COURT 12 The applicant applied for judicial review of the Tribunal's decision in the Federal Magistrates Court. In an amended application before the Federal Magistrate the applicant claimed: 1. The Tribunal failed to consider the fact that the applicant had been practising Falun Gong in Australia, which may cause him to be persecuted upon his return to China. 2. The Tribunal failed to comply with its obligations under s 424A of the Migration Act 1958 (Cth) (the Act). 13 In his original application the applicant had also alleged that the Tribunal was biased. Notwithstanding that the allegation of bias did not form part of the amended application, the Federal Magistrate dealt with this contention. The Federal Magistrate found that, while the Tribunal formed a strong view as to the applicant's credibility, there was no evidence produced by the applicant in support of the claim of actual or apprehended bias. 14 As to the grounds of review in the amended application, the Federal Magistrate was satisfied that the Tribunal was aware that the applicant had informed the delegate of his claims to be practising in Australia. The Federal Magistrate found that it was reasonable to understand the Tribunal's reasons as rejecting this claim as well as the other elements of the applicant's claims. The Federal Magistrate said at [15]: After explaining its adverse general opinion of the applicant's credibility, the Tribunal referred to all of his claims, and said: I simply reject them all, individually and as a whole. I therefore do not consider that an arguable case in support of this ground is made out. (Original emphasis.) 15 The Federal Magistrate observed that it followed that s 91R(3) of the Act was not engaged. 16 Further, the Federal Magistrate found that the Tribunal had, in making its adverse credibility findings, relied entirely upon its assessment of the applicant's evidence given to the Tribunal and the possible inconsistencies with that evidence and the evidence that he previously gave to the department. Accordingly, said the Federal Magistrate, s 424A(1) of the Act was not engaged in relation to the use of such information. 17 The Federal Magistrate was not satisfied that the applicant's application for judicial review raised an arguable case for relief and, therefore, dismissed it under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the FMC Rules).

THE PRESENT APPLICATION 18 The applicant filed an application for an extension of time to appeal against the decision of the Federal Magistrates Court. Accompanying that application was an affidavit annexing a draft notice of appeal which contained the following grounds: 1. The Tribunal failed to comply with its obligations pursuant to s 424AA of the Act in relation to the inconsistency between the applicant's oral and written statements. 2. The Tribunal constructively failed to exercise its jurisdiction by failing: (a) to consider what might happen to the applicant if "he openly practiced [sic] religious [sic]" in China; (b) to make a finding as to whether his activities in Australia increased his risk of persecution on return to China, or whether the activities would be disregarded under s 91R(3)(b) of the Act. 3. The Tribunal failed to properly deal with the applicant's claim of having practised Falun Gong in Australia. 4. The Tribunal failed to provide the applicant with a fair hearing and failed to comply with its obligations pursuant to s 425 of the Act. 19 The application was filed as an application for an extension of time to appeal against a decision of a Federal Magistrate. However, because the Federal Magistrate dismissed the application under r 44.12(1)(a) of the FMC Rules, the applicant requires leave to appeal. I have treated this application as an application for leave to appeal. It is conceded by the first respondent that if leave to appeal is granted, there is no need for an extension of time. 20 I have treated the proposed notice of appeal as alleging that the Federal Magistrate erred in not making the finding that the Tribunal erred in the manner alleged. In the document filed the applicant expressly makes that allegation only in respect of the proposed first ground of appeal. 21 In order to obtain leave to appeal from the decision of the Federal Magistrate it is incumbent upon the applicant to demonstrate that the decision is attended by sufficient doubt to justify the grant of leave to appeal. 22 As to the first proposed ground of appeal, this was not a ground which was raised before the Federal Magistrate. In his proposed grounds of appeal the applicant contends that the contravention of s 424AA is comprised by the Tribunal referring to "inconsistencies" between his oral statement and his written statement filed in support of the visa application but not seeking comment from him about the information in his written statement. In my view, s 424AA is a discretionary section which was not engaged in this case. There is no obligation on the Tribunal to disclose its thought processes which would include the "inconsistencies" referred to by the applicant. Further, there was no obligation on the Tribunal under s 424A to call for comment from the applicant on the written statement which he had lodged in support of his visa application because that was information which fell within the ambit of s 424A(3)(ba) of the Act. There is, in my view, no prospect of the applicant being able to succeed on this point on appeal. Accordingly, I would not, even if I was otherwise disposed to grant leave to the applicant to appeal against the decision of the Federal Magistrate, grant the applicant leave to raise this point on appeal. 23 As to proposed grounds two and three, as the Federal Magistrate observed, it is plain that the Tribunal rejected all claims made by the applicant which were based on the applicant's claimed association with Falun Gong, on the grounds of credibility. The credibility finding, therefore, extended to his claim to have practised Falun Gong in Australia. Accordingly, s 91R(3) of the Act was not engaged. In my view, the Federal Magistrate did not err in coming to this conclusion. Further, insofar as the claim in these proposed grounds of appeal included the complaint of a failure by the Tribunal to consider other integers of the applicant's claim, there is no substance in the complaint. The adverse credibility finding made by the Tribunal affected each of the integers of his claim. 24 As to the proposed fourth ground of appeal, the applicant produced no transcript of the hearing before the Tribunal in support of the complaint that he was not given a fair and proper hearing. Further, in oral submissions before me, the applicant did not provide any particulars of the alleged defect in the hearing other than generalised assertions that he was not given a fair hearing and that the Tribunal delivered its decision on the same day. The latter complaint was also made before the Federal Magistrate. However, as the Federal Magistrate observed, the delivery by the Tribunal of its decision on the same day is not a jurisdictional error and is contemplated by the Act. I am unable to find any merit in this proposed ground of appeal. 25 Accordingly, in respect of the matters raised by the applicant in his draft notice of appeal, I am of the view that the decision of the Federal Magistrate is not attended by sufficient doubt to warrant the grant of leave to appeal. 26 In oral submissions before the Court, the applicant raised two further points. 27 First, the applicant complained that he was deprived of his "right to speak" before the Federal Magistrate. The applicant did not produce the transcript of the hearing before the Federal Magistrate or any other evidence in support of his claim. Further, the claim is inconsistent with the Federal Magistrate having recorded in his reasons that the applicant had made submissions complaining about the fact that the Tribunal had delivered its decision on the same day as the hearing. I, accordingly, will not grant the applicant leave to appeal to raise that complaint. 28 Secondly, the applicant said that he did not have the benefit of legal advice and assistance before the Federal Magistrate notwithstanding that it was said that this would be provided. There was, however, before the Court the uncontradicted evidence of Ms Alissa Crittenden, a solicitor acting on behalf of the first respondent, that the Federal Magistrates Court did allocate a Legal Advice Scheme solicitor to the applicant and that that solicitor had reviewed the applicant's case and provided legal advice to the applicant before the hearing of the review by the Federal Magistrate. In light of that evidence, I will not give the applicant leave to appeal to raise this complaint as a ground of appeal. 29 In my view, the applicant has not demonstrated that the decision of the Federal Magistrate is attended by sufficient doubt to warrant the grant of leave to appeal on the grounds set out in the proposed notice of appeal. Nor is there any merit in the matters that he has raised in the oral submissions before the Court.

30 I, accordingly, refuse the applicant's application for leave to appeal. The applicant is to pay the first respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate: Dated: 21 November 2008 Counsel for the Applicant: The applicant appeared in person.

Counsel for the First Respondent: Ms A Crittenden