SZMWN v Minister for Immigration & Citizenship

Federal Court of Australia|2010-02-17|Before: Edmonds J

REASONS FOR JUDGMENT 1 This is an appeal from the Federal Magistrates Court (Raphael FM) ([2009] FMCA 1088) dismissing an application for review of a decision of the second respondent ('the Tribunal') to affirm a decision of a delegate of the first respondent ('the Minister') refusing to grant the appellant a protection (Class XA) visa.

Background 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on or about 14 March 2008. On or about 25 March 2008, the appellant lodged an application for a protection (Class XA) visa in which he claimed that he had suffered from persecution in China due to his political opinions and beliefs based on Falun Gong. 3 The appellant attended an interview with an officer of the Department on 30 May 2008. He submitted various documents to the Department for the purpose of that interview. 4 On 11 June 2008, a delegate of the Minister refused to grant the appellant a protection visa. In short, the delegate concluded that the appellant lawfully left China in a manner inconsistent with his claims of having been persecuted, the appellant only had a general knowledge of Falun Gong and that his claims of being an active Falun Gong participant were unconvincing. 5 The appellant sought a review of this decision and submitted various documents in support of this review, but the Tribunal affirmed the delegate's decision. This decision was quashed by the Federal Magistrates Court with the consent of the parties and the matter was remitted to a newly constituted Tribunal. 6 By letter dated 21 January 2009, the Tribunal acknowledged receipt of the appellant's remitted application for review. By letter dated 9 February 2009, the appellant was invited to appear at a hearing before the Tribunal. On or about 11 February 2009, the appellant responded to the hearing invitation. He subsequently submitted a statutory declaration for the Tribunal's consideration. 7 By letter dated 14 April 2009, the Tribunal invited the appellant to comment on certain particulars of information in accordance with s 424A of the Migration Act 1958 (Cth) ('the Act'). The appellant responded to this invitation by letter dated 28 April 2009. 8 On 13 May 2009, the Tribunal handed down a decision affirming the decision of the delegate.

The Tribunal's findings 9 The Tribunal's decision record sets out the claims made by the appellant in his protection visa application, the further claims made by him at the Departmental interview, the submissions made by him to the Tribunal on the first occasion, the evidence he gave at the Tribunal hearing on the first occasion and the evidence and submissions provided to the Tribunal on the second occasion. 10 The Tribunal accepted that the appellant was a national of China. However, the Tribunal was not satisfied as to the credibility of the appellant's claims to have been a Falun Gong practitioner in China or to have suffered persecution for that reason. 11 In rejecting the appellant's claims, the Tribunal made the following findings: (1) It preferred the evidence provided by the travel agency, which had arranged the appellant's travel to Australia, as to his employment with a freight company in China and on that basis it was not satisfied that the appellant was working as a small trader, that he was dismissed from his employment by reason of his Falun Gong practices or that he had been unable to find alternate employment. Particulars of the information received from the travel agency were provided to the appellant for his comment and he took up the opportunity to respond to that information; (2) the appellant had provided inconsistent evidence about what he had done in China after allegedly being dismissed from his employment and these inconsistencies reinforced both the Tribunal's doubts as to the appellant's evidence and its decision to accept the evidence provided by the travel agency. The Tribunal was not satisfied that the appellant had satisfactorily explained these inconsistencies; (3) it did not accept as credible the appellant's claims that he had practised Falun Gong in China since 1998 or that he was dismissed from his employment, arrested and detained for doing so. The Tribunal arrived at this conclusion by relying on the fact that the appellant's sister did not make any reference to these matters in her own application for a protection visa in May 2006 (almost two years before the appellant had made his application), even though she had also asserted persecution on the grounds of being a Falun Gong practitioner. The appellant's sister had alleged in the Tribunal hearing on the first occasion that her brother (the appellant) had introduced her to Falun Gong, but in her protection visa application she had said nothing about her brother or his alleged persecution. The Tribunal did not accept the explanations provided by the appellant or his sister. The Tribunal also rejected the appellant's assertion that he had been denied natural justice because he did not have access to his sister's protection visa application. The protection visa application had not been released because the appellant's sister refused to consent to its release, but the Tribunal found that there was no denial of natural justice as the matters relevant to his sister's evidence were fully explored with the appellant and his sister during the Tribunal hearing on the second occasion and were also raised in the Tribunal's s 424A letter; (4) on the basis of inconsistent evidence, it did not accept that the appellant had been involved in a confrontation with police on 7 July 1999 or that he had been arrested and detained; (5) on the basis of the appellant's inconsistencies regarding his employment and the other matters referred to above, it did not accept that the appellant was a Falun Gong practitioner or that he was ever harmed by Chinese authorities for that reason; (6) it placed no weight on certain documents submitted by the appellant on the basis that an alleged letter from his wife was implausible and inconsistent with his own evidence, the original versions of letters of support from other alleged Falun Gong practitioners in China had been written on the same notepaper as the letter from his wife, the authenticity of these letters was in doubt because they had been freely transmitted through the postal service although they contained evidence which was harmful to the appellant and the authors, and photocopies of a certificate of dismissal and a medical certificate appeared to have been produced on a personal computer; and (7) it did not accept that the appellant's Falun Gong activities in Australia were engaged in otherwise than for the purpose of strengthening his claim to be a refugee. 12 Ultimately, the Tribunal did not accept that the appellant was ever a Falun Gong practitioner in China or that he was ever harmed by the police, dismissed from his employment, arrested or detained or that he suffered any other harm in China for that reason. Accordingly, the Tribunal was not satisfied that the appellant faced any chance of persecution for any Convention-related reason.

In the Federal Magistrates Court 13 In the judicial review proceedings before the Federal Magistrates Court, the appellant asserted that the Tribunal did not comply with s 424A of the Act because it did not provide the appellant with the protection visa application which had been lodged by his sister. 14 His Honour rejected this contention by finding that the appellant was made fully aware of the relevant details of his sister's protection visa application and its doubts as to his credibility. His Honour relied on the decision in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at [7], [27] and [29] in support of the conclusion that the Tribunal was not obliged to provide the appellant with a copy of the actual protection visa application, if it had otherwise notified the appellant of the relevant information. 15 His Honour also rejected the appellant's oral submissions to the effect that the Tribunal was biased.

Notice of Appeal 16 The appellant's Notice of Appeal raised two grounds of appeal.

Appeal Ground 1: Alleged error relating to s 91R(3) of the Act 17 Although this matter was not raised before his Honour below, the first respondent does not oppose leave being granted to the appellant to raise it on appeal. 18 The Tribunal's rejection of evidence of the appellant's Australian activities was entirely consistent with a proper application of s 91R(3) of the Act: see SZIMY v Minister for Immigration & Citizenship [2007] FCA 249. 19 An appellant bears the burden of satisfying the relevant decision-maker that the appellant's activities in Australia should not be disregarded by that decision-maker: NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1536 at [26]; SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [39]. In the present case, having considered the evidence about the appellant's religious activities in Australia, the Tribunal correctly identified s 91R(3) of the Act as the applicable provision and explained its operation to the appellant. Further, consistent with the requirements imposed by s 91R(3) of the Act, the Tribunal correctly found that it was required to disregard the appellants religious activities in Australia unless the appellant satisfied the Tribunal that he had engaged in those activities otherwise than for the purpose of strengthening his claim to be a refugee: Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642. It is evident that there was no error in the Tribunal's application of s 91R(3) of the Act. 20 Ground 1 cannot be sustained.

Appeal Ground 2: Alleged error relating to non-disclosure of sister's protection visa application 21 Ground 2 contends that the appellant is 'sure' that his sister would have provided the Tribunal with consent to the disclosure of her protection visa application, if she had been asked. It is alleged that the Tribunal's failure to so ask established that the Tribunal did not want to obtain favourable evidence. 22 The Tribunal's decision record discloses that the appellant had in fact applied to the Tribunal for release of his sister's protection visa application, but it had been denied because his sister had refused to provide consent to the disclosure. In any event, the fact that the actual document was not provided to the appellant does not establish a denial of procedural fairness or natural justice. In the present case, the relevant adverse information was particularised and communicated to the appellant in a s 424A letter issued by the Tribunal. Having provided the appellant with particulars of the relevant adverse information, the Tribunal was not obliged to provide nor request a copy of the actual document: see Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 at [7], [27] and [29]. His Honour was correct in so concluding. 23 Nothing in the Tribunal's approach establishes that it was unwilling to obtain favourable evidence. The Tribunal's decision record discloses a careful and considered examination of all of the appellant's claims, documents, evidence and submissions. 24 Ground 2 cannot be sustained.

Conclusion 25 The appellant has not demonstrated any error on the part of his Honour below or any jurisdictional error on the part of the Tribunal. The appeal must be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

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