FEDERAL COURT OF AUSTRALIA

SZFNP v Minister for Immigration and Multicultural Affairs [2006] FCA 1527

Migration Act 1958 (Cth), s 424A

SZFNP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 1424 OF 2006

TAMBERLIN J

8 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Raphael made on 11 July 2006. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) and ordered the appellant to pay the respondent’s costs.  The Tribunal handed down its decision on 3 December 2004 and affirmed a decision of the Minister’s delegate refusing to grant the appellant a protection visa.

2                     The Notice of Appeal dated 26 July 2006 states that the Court erred in law by not identifying jurisdictional errors committed by the Tribunal on the basis that: (i) the Tribunal used out of date country information in making its decision; and (ii) the Tribunal did not put country information to the appellant. The Amended Application for judicial review filed on 15 April 2005 added bias as a third ground of review.

3                     The appellant is a citizen of the People's Republic of China.  He arrived in Australia on 8 May 2004 and lodged an application for a protection visa on 21 June 2004 on the basis that he was entitled to protection under the Refugee Convention.  The substance of his case before the Tribunal was that he was a practitioner of Falun Gong in China, and would be subject to persecution due to his membership of that group.  The Tribunal found that the appellant lacked credibility, and that therefore the claims could not be accepted.

4                     At the hearing before the Tribunal on 30 November 2004, the appellant stated that he commenced his practice of Falun Gong in 1997 and that he had been assaulted by police in China in 1998 or 1999.  The Tribunal Member put to the appellant that Falun Gong was not banned until 1999, and the appellant stated that "1999 was the big one", which I understand was intended to convey that the widespread crackdown on the practice of Falun Gong was carried into full effect in that year.  The Member pointed out that at a later point during the hearing, the appellant stated in evidence that perhaps the injuries had been inflicted in 1999.

5                     The appellant was then questioned by the Member as to the practice of Falun Gong and could not correctly answer questioning as to how many movements were practised in Falun Gong, nor state the colours of the Falun Gong symbol.  As a consequence of this and other reasons, the Member did not accept that the applicant was a genuine and sincere Falun Gong practitioner.  The other grounds relied on in relation to the question of credibility included the fact that the appellant claimed that he had paid to obtain his passport in 2002, yet did not depart China until May 2004.  This was also considered to be inconsistent with the contention that he was likely to be subject to persecution on account of his practice of Falun Gong.

6                     When the matter came on for hearing before me, I asked the appellant to state his reasons as to why there had been an error either on the part of the Tribunal or the Federal Magistrate. He was unable to do so or present any argument as to error.  This is understandable because his understanding of the English language appears slight and he has no experience in legal matters or court procedure.  Nevertheless, no affirmative case of any kind or merit was advanced before me. 

7                     I entertain some concern at the finding of "a lack of credibility", which is of central importance in this case and was based on questions concerning the practice of Falun Gong.  As previously noted, the Member stated that the applicant could not correctly answer how many movements were involved or state the colours of the Falun Gong symbol, and this was an important reason for finding a lack of credibility.  There is nothing in the reasons of the Tribunal which indicates the source of the information on which this conclusion was based.  The Tribunal Member put to the applicant that there were in fact five movements in Falun Gong and not eight, which was the number the appellant had stated previously in the hearing.  He replied that he had been sent a disc and was asked to learn what was on the disc, and that there had been eight movements.  My concern in relation to this line of precise questioning as to the way in which exercises are carried out is that the information is used as an important element in refusing to accept the appellant as a credible witness, yet there is no indication to the appellant as to the source of the information which was put to him and on which the Tribunal based its decision that the appellant was not acquainted with the “correct” practises of Falun Gong or the colouring of its symbol.  If the source of the information on which the questions as to practice and knowledge are based were put to an applicant, there would be an opportunity to challenge the accuracy of the source of that information or to suggest that there are other ways in which Falun Gong can properly be practised.  By way of example, if one were to ask a man claiming to be a Catholic what was the nature of the “Holy Trinity”, it could be important as a matter of fairness to inform the person as to what source or version was being used to test his understanding.

8                     Notwithstanding the above reservation, I am not persuaded that the decision of the Tribunal reflects jurisdictional error having regard to the provisions of s 424A of the Migration Act 1958 (Cth).  In particular, sub section (3)(a) of that provision has the effect that the section does not apply to information which is “about a class of persons of which the applicant or other person is a member”.  In this case, the information relied on concerned a class – namely Falun Gong practitioners - and therefore, it did not have to be disclosed to the appellant.  However, I do consider that in this type of case, it is appropriate to inform an applicant, where such questions can be used or might be used to reject the witness as a credible witness, of the source of the teaching so that the applicant may have a chance to challenge the information.  I note that in this case, the Member squarely put the contention to the appellant that there were five movements, and not eight, and did raise the question of the colours of the Falun Gong symbol thereby giving the appellant the opportunity to answer. 

9                     In these circumstances, I am not persuaded that there has been any error of law or principle which would warrant any departure from the decision of His Honour or the decision of the Tribunal Member.  I therefore dismiss the appeal with costs.

Associate:

Dated:         29 November 2006