FEDERAL COURT OF AUSTRALIA

SZMBU v Minister for Immigration and Citizenship [2008] FCA 1290

SZMBU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 941 of 2008

GILMOUR J

20 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondents costs to be taxed if not agreed.

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 against a judgment of a Federal Magistrate of 3 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 21 February 2008.  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.

PROCEDURAL HISTORY

2                     The appellant is a citizen of China who arrived in Australia on 19 May 2007.  On 25 June 2007 the appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs.  A delegate of the first respondent refused the application for a protection visa on 24 September 2007. On 23 October 2007 the appellant applied to the Tribunal for a review of that decision.

3                     Before the Tribunal the appellant claimed to have a well founded fear of persecution because of his status as a Falun Gong practitioner.  The appellant claimed to have begun practising Falun Gong in China since 1995 and stated that after the Chinese government declared Falun Gong to be an illegal organisation 1999, the police approached him and other practitioners.  He alleged that he was obliged to sign a confession and declare that he would never practice Falun Gong again.  The appellant, however, claimed that he continued to practice Falun Gong in secret until the police went to his home in June or July 2001, after which he was then required to attend “re-education” sessions at the local police station for a week.  

4                     The appellant claimed that he was laid off from his job and was unable to obtain a licence to open a shop because he was known to be a Falun Gong practitioner.  He claimed that he ran an unlicensed game machine shop until he was assaulted by two customers in August 2006 who claimed he stole their money.  He stated that the police would not act on his complaints but closed his business and confiscated his machines.  As a result, he applied for a passport and visas to enter Malaysia and Australia.

THE TRIBUNAL DECISION

5                     The Tribunal did not find the appellant to be a credible or truthful witness as his evidence at the hearing indicated a lack of knowledge of the basic principles and practice of Falun Gong.  The Tribunal in making this finding also relied upon a number of inconsistencies between the appellant’s claims made in his application for a protection visa and the claims made to the Tribunal at the hearing.

6                     These inconsistencies were put to the appellant by way of a letter sent to him pursuant to the provisions of s 424A of the Migration Act 1958 (Cth) (the Act).  In his written response the appellant claimed that he was nervous at the hearing, however the Tribunal did not accept his explanation for the inconsistencies.  The Tribunal found that the appellant’s response to the s 424A letter was inconsistent with the evidence given to the Tribunal at the hearing and further indicated that the appellant was not a witness of truth.

7                     The Tribunal rejected all of the appellant’s claims as it found him not to be a witness of truth and subsequently concluded that there was no real chance that the appellant would face persecution if he were to return to China then or in the foreseeable future due to his religion, membership of a particular social group or for any other Convention reason.  Accordingly, it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

8                     Before the Federal Magistrate the appellant claimed:

1.                  The RRT decision was affected by jurisdictional error.

            The applicant claims that he is a genuine Falun Gong practitioner and was persecuted by the Chinese Government when he was in China. The applicant fears that if he returns to China, he will again be persecuted. The applicant provided his written claims to the Department and also gave oral evidence before the Tribunal. The Tribunal found inconsistencies among his own evidence and therefore found the applicant is not a credible witness.

            The applicant claims he was nervous when attending the hearing and therefore he was unable to respond to the Tribunal’s questions clearly.

2.         The applicant claims that he has strong interests in Falun gong now in Australia.  He practices in Australia regularly. The RRT failed to consider this claim properly.

3.         The applicant claims that the Tribunal failed to invite him to comment on adverse information as required by s 424A of the Act. The Tribunal found inconsistencies in his response to s 424A letter and his oral response in the hearing in relation to information that the Department verified his employment details when assessing his visitor visa application (see page 22 of the decision record). The RRT failed to comment on such inconsistencies.

9                     The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that the Tribunal made a very strong finding of adverse credibility, a finding that was open to it on the basis of the evidence before it.  The Federal Magistrate stated that it is well established that a finding as to whether the appellant should be believed in his claim is a function of the primary decision maker and pointed out that the Tribunal did not accept the explanation that he was nervous as a reason for inconsistencies in his evidence.

10                  In regards to the appellant’s claims that the Tribunal did not consider his claims properly, the Federal Magistrate stated that the Tribunal completely rejected the appellant’s claim to be a Falun Gong practitioner at all.  His Honour concluded that, as a matter of logic, this would apply at least as much to a claim to have practised Falun Gong in Australia as it would to a claim to have practised in China.

11                  The Federal Magistrate was satisfied that the inconsistencies in the evidence were not matters that must be put to the appellant for comment as they did not constitute “information” within s 424A of the Act.  Moreover, His Honour stated that whether there were inconsistencies or not, the evidence considered by the Tribunal was all information provided by the appellant to the Tribunal for the purpose of the application for review and was therefore excluded from the operation of s 424A(1) by s 424A(3)(b) of the Act.  His Honour was satisfied that the Tribunal complied with s 424A(1) of the Act.

12                  In relation to the appellant’s allegation of bias, the Federal Magistrate found no evidence of bias as the only evidence presented to the Court was the Tribunal’s written reasons for the decision.  In the absence of a transcript of the Tribunal hearing, the Federal Magistrate dismissed the appellant’s claims in this respect as mere assertions.

THE PRESENT APPEAL

13                  The notice of appeal raises one ground of appeal:

1.         The decision of the Federal Magistrate Court is said to be wrong in that it failed to deal with the applicant’s additional claims that the Refugee Review Tribunal’s decision contains judicial error as it was affected by prejudgment and bias.

Particulars

The applicant was asked at the beginning of the hearing that (sic) whether the applicant’s agent had made up the claims for the applicant and the applicant answered ‘no, it is all my true experience’. The applicant claims that if the Tribunal had already formed an opinion, even before taking further oral evidence from the applicant, that the applicant’s claims were made up by his agent, it was impossible for the hearing to be fair and open. The applicant claims that after the Tribunal asked that unreasonable question, he was very upset and was not in a good mood to continue the hearing.

(Transcribed without alteration)

14                  The appellant’s oral submissions substantially repeated the particulars of the ground of appeal.  Ultimately he submitted that the Tribunal hearing was a mere formality and a foregone conclusion.

REASONS

15                  Before the Federal Magistrate, the appellant made an oral allegation of actual bias on the part of the Tribunal.  Contrary to what is set out in the Notice of Appeal this claim was considered and rejected by the Federal Magistrate at [55]-[56]. 

16                  The first respondent does not admit that the Tribunal member asked the question set out in the particulars.  The transcript was not before the Court.  The decision record of the Tribunal contains the following passage relevantly:

The Tribunal asked the applicant how his protection visa application and statement to the Department were prepared.  The applicant claimed that he told his agent who spoke Mandarin his story and the agent translated the information into English.  The applicant claimed that his agent had read back to him what he had written down and the information he submitted to the Department was true and correct.

This by no means suggests that such a question was asked.  I cannot however conclude that the question was not asked.  I will consider the appeal on the assumption that it was asked and that the appellant answered it in the terms set out in the particulars to the ground of appeal. 

17                  The appellant’s application to the Tribunal was refused because the Tribunal did not believe the appellant as to his claims.  His evidence was found to contain significant inconsistencies.  There was no finding that his migration agent had fabricated the claims on his behalf.  Indeed the adverse findings made in respect to the appellant did not in any respect concern the role of the migration agent.

18                  Furthermore, the situation is not such, in my opinion, that a fair minded lay observer, properly informed as to the nature of the proceedings, might reasonably apprehend that the Tribunal member, by asking the question about which the appellant complains, may not have brought an impartial mind to bear: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]. 

19                  There is nothing in the decision record that suggest that the Tribunal member had a pre-existing state of mind which disabled her from undertaking a proper evaluation of the relevant materials before it; Minister for multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at [35] and [72].  Indeed, the position is to the contrary.  The Tribunal’s role in conducting a hearing is one of an inquisitorial nature.  The Tribunal member was entitled to put a question to the appellant of the kind set out under the particulars to the ground of appeal in order to satisfy herself whether the appellant was a person to whom Australia has a protection obligation under the Refugees Convention.  

20                  The appellant also complains that he was very upset by the question asked by the Tribunal member and ‘was not in a good mood to continue the hearing’.  The Court in NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 as [49]-[50] suggests that an inability of the appellant to give evidence due to a disability may result in a failure to comply with s 425. The evidentiary onus is on the appellant to satisfy the Tribunal that he was not fit to give evidence at the hearing: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140.  The only complaint the appellant made to the Tribunal was in his response to the s 424A letter where he claimed he was nervous.  The Federal Magistrate noted at [42] that the Tribunal was not satisfied that the inconsistencies of his claims could be explained by his nervousness.  In any event mere assertion by him as to his state of health does not of itself establish that he was unfit to give evidence: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.

21                  The appellants ground of appeal fails.  The appeal should be dismissed and the appellant be ordered to pay the first respondents costs.

Associate:

Dated:         20 August 2008