FEDERAL COURT OF AUSTRALIA

SZMRZ v Minister for Immigration and Citizenship [2009] FCA 201

SZMRZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2024 of 2008

MCKERRACHER J

5 MARCH 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed. 

2.                  The appellant is to pay the costs of the first respondent, to be taxed if not agreed. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant is a citizen of China.  She arrived in Australia on 25 November 2007.  On 17 December 2007 she lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 5 March 2008.  On 8 April 2008 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  The Tribunal affirmed the delegate’s decision.

2                     This is an appeal from a judgment of a Federal Magistrate delivered on 5 December 2008 (SZMRZ v Minister for Immigration & Anor [2008] FMCA 1636).  Her Honour dismissed an application for judicial review of the decision of the Tribunal handed down on 29 July 2008.  

THE APPELLANT’s CLAIMS

3                     The appellant claimed to fear persecution in China due to her practice of Falun Gong.  She claimed to have commenced practicing in 1998; to have participated in peaceful protests in Beijing; to have been imprisoned on several occasions after Falun Gong was outlawed in 1999 for distributing ‘truth clarification materials’.  According to the appellant, she was detained for six months in 2003 and forced to undergo ‘re-education’ training in a detention centre.

4                     The appellant appeared to disavow her initial claims when she appeared before the Tribunal.  Instead, she claimed to have been a practitioner since 2005 after being introduced to Falun Gong by a friend.  When asked by the Tribunal member whether her statement regarding being involved in protests and being detained were untrue, the appellant agreed that they were as she had in fact been in Korea at the time.  She stated that she had no problems with the authorities for practicing Falun Gong until September 2007 but could not verify why the PSB were looking for her.  The appellant stated that she suspected a fellow practitioner may have informed the Public Security Bureau (PSB) of her adherence.  The appellant further claimed that she had continued to practice Falun Gong in Australia.

BEFORE THE TRIBUNAL

5                     The Tribunal accepted that the appellant had disavowed her initial claims, and assessed her application on the basis of those claims pursued at hearing.  However, the Tribunal did not accept that the appellant was a Falun Gong practitioner or that she had been so identified, noting: the implausibility of the appellant engaging in the illegal activity of Falun Gong practice merely at the urging of a friend; her lack of knowledge of the seminal Zhuan Falun; inconsistencies in the appellant’s account of her residential arrangements before departing China, leading the Tribunal to infer that she had not been in hiding; and the absence of documentary evidence or witness accounts of her practicing Falun Gong in China.

6                     In these circumstances, the Tribunal was not satisfied that the appellant’s participation in Falun Gong-related activities in Australia was other than a device for enhancing her claim for protection.  It accordingly disregarded the conduct pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act).  As a result of these findings, the Tribunal did not accept that the appellant held a well-founded fear of persecution in China for a reason within the meaning of the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention).

THE FEDERAL MAGISTRATES COURT

7                     Before the Federal Magistrate the appellant claimed that:

1.         The Tribunal had bias against me and did not consider my application according to S91R of the Migration Act 1958.

2.         The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.

3.         The Tribunal failed to consider the claims of my application. The decision was not supported by sufficient materials.

8                     The learned Federal Magistrate noted that no ground was supported by particulars, evidence or written submissions.  The appellant informed the Court that a friend had written the grounds of her application and she was unable to make any meaningful submissions in support of her application.

9                     The learned Federal Magistrate interpreted ground 1 as an allegation of bias.  Her Honour was satisfied, however, that there was nothing in the Tribunal decision to suggest that it had prejudged the appellant’s claims.

10                  Her Honour interpreted the second ground as a claim about the adverse finding as to the truth of the appellant’s claims.  Her Honour was satisfied that the findings were open to the Tribunal and had been raised with the appellant.  Her Honour further noted that the Tribunal’s use of country information was permitted by s 424A(3)(a) of the Act.

11                  In relation to the third ground, her Honour found that the Tribunal had specifically dealt with all of the appellant’s claims.  This included the appellant’s claim that she had hidden on an island at a house owned by her sister, an issue specifically adverted to in the Tribunal’s reasons for decision.  Her Honour further found that the ground was otherwise merely a request for merits review.

12                  As no jurisdictional error was established, her Honour dismissed the application.

GROUNDS OF APPEAL

13                  The notice of appeal raises the following grounds:

1.         The Tribunal member did not ask proper questions in relation to my claims for a protection visa.

2.         I was denied procedural fairness in connection with the making of the decision.

3.         It is not reasonable for the Tribunal to point out that I was not a Falun Gong practitioner.

14                  Although the grounds are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal.

15                  At the hearing of the appeal before me the appellant stressed that it was clear that the Tribunal did not understand the risk of persecution to which Falun Gong practitioners were exposed in China.  She reiterated her adherence to the practice of Falun Gong and that her evidence concerning her practice of Falun Gong had been true.  Counsel for the first respondent correctly pointed to the fact that the Tribunal had disbelieved her evidence that she was a practitioner of Falun Gong and set out reasons why it had so believed.  The Federal Magistrates Court had correctly held that such a conclusion was open to the Tribunal and that the reasons given for the conclusion were adequate.  The conclusion reached gave rise to the rejection of the application. 

16                  As to the question of the Tribunal not understanding the consequences to which Falun Gong practitioners may be exposed in China, counsel for the first respondent correctly drew attention to several paragraphs of the Tribunal’s decision in which the risk faced by Falun Gong practitioners in China was clearly articulated.  Several documentary sources independently of the oral evidence of the appellant supported the existence of the risk.  The simple fact, however, was that the Tribunal did not believe that the appellant had been a practitioner of Falun Gong.  That is not a finding which is open to this Court to review. 

17                  The appellant also emphasised that in her written materials, specifically the typed statement given to the Department of Immigration and Citizenship (the Department), there were a number of claims which were incorrect.  The appellant made the point that she had corrected those incorrect claims.  They had been made without her knowledge.  She was concerned that the Tribunal may either have relied upon the incorrect claims or may have relied on the inconsistency between her correct claims and her oral evidence. 

18                  In this regard, however, the Tribunal recorded she had completely resiled from the claims in the documents submitted to the Department as to detention by the police in China.  It also recorded that it accepted that she does not read English and was unable to establish with confidence that she knew what was written on her behalf in the typed statement submitted to the Department which was not signed by her and whose authorship she claimed not to know. 

19                  The Tribunal accordingly expressly recorded that it did not draw adverse inferences about her general credibility simply from the fact that her oral evidence differed markedly from that appearing in the written statement.  It noted that the appellant had made no attempt to pursue the assertions in the written statement and immediately rejected them.  On that basis there was no doubt that the Tribunal neither relied on the incorrect material nor expressed any adverse inference arising from the fact that the oral evidence was different from the written statement.  There is no jurisdictional error of any description made out in relation to this issue. 

ANALYSIS

Ground 1

20                  The first ground raised by the appellant is that ‘the Tribunal Member did not ask proper questions in relation to [her] claims for a protection visa’.  It is clear that the decision-maker is not required to make the applicant’s case for him or her:Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.  It is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214.

21                  In this case, the Tribunal’s decision record indicates that the Tribunal discussed with the appellant: her claims; her travel to Australia; the filing of her protection visa application; her residential history; her family; her plans before travelling to Australia; her practice of Falun Gong in China and Australia; her knowledge of Falun Gong; her father-in-law’s illness; the questioning of her parents by the police; her movements after she claimed she had been ‘dobbed in’; her husband’s absence at the Tribunal hearing; and information that might be a reason for refusing her application.

22                  The Tribunal came to the conclusion that the appellant was not a Falun Gong practitioner in China, or would be so identified, on the basis that the appellant’s evidence was implausible.  It is well settled that credibility findings are a matter ‘par excellence’ for the Tribunal, which is not open to judicial review: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.  As the Federal Magistrate concluded (at [57]):

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it.  Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.

23                  No error can be discerned in the reasoning of the Tribunal or the Federal Magistrate in this regard.

Ground 2

24                  The second ground advanced by the appellant is that she was denied procedural fairness in connection with the making of the decision.  The appellant has not provided any particulars or evidence in support of this ground. 

25                  Section 422B of the Act specifies that Div 4 of Pt 7 ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’.  Any breach of ‘procedural fairness’ must therefore be located within the statutory provisions of Div 4 Pt 7 of the Act.

26                  Under s 424A(1) of the Act, the Tribunal is required to provide the applicant with, in a way it deems appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal must ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.  The Tribunal must invite the applicant to comment on or respond to it. In this case, as noted by the Federal Magistrate, there was no ‘information’ which was required to be put to the appellant under s 424A(1) (at [46]).

27                  Section 425 of the Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The Tribunal will have breached s 425 where it fails to notify the applicant of the determinative issues arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.  If the Tribunal takes no steps to identify the issues which it considers dispositive or determinative, the applicant is entitled to assume that the issues that the delegate considered dispositive or determinative are the issues arising in relation to the decision under review; SZBEL.

28                  Further, the Tribunal is required to advise the applicant of any adverse conclusion which has been arrived at which would not obviously be open on the known material; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.  What is obviously open can only be identified by having regard to the issues arising in relation to the decision under review; SZBEL [at 38].  A process of characterisation must be undertaken to identify what the dispositive or determinative issues are; that is the issues on which the decision to reject the applicant’s claim is based; see SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486.  The Tribunal is not required to identify the significance of the questions that it puts to the applicant or the ultimate matter of issue to which those questions go: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88].

29                  In this case, the Tribunal’s decision record indicates that it complied with all of its obligations under s 425 of the Act.  As noted by the Federal Magistrate (at [53]):

A fair reading of the Tribunal’s decision makes clear that the Tribunal considered in detail all the Applicant’s claims arising from her oral evidence. The Tribunal put to the Applicant concerns it had about her evidence and noted her responses. In particular, the Tribunal noted that it told her that the inconsistencies as to where and when she was living in particular places may be a reason for refusing her application and invited the Applicant to comment or respond orally or in writing. The Tribunal noted that the Applicant “chose to respond immediately and orally”.

30                  In my view, the Tribunal complied with its obligations under s 424A and 425 of the Act.  No other breach of Div 4 Pt 7 of the Act is discernable from the decision of the Tribunal.

Ground 3

31                  The third ground raised by the appellant is that ‘it is not reasonable for the Tribunal to point out that [she] was not a Falun Gong practitioner’.  As noted above, the findings of the Tribunal were open to it on the evidence before it and for which it gave reasons.  Otherwise, this ground merely seeks merits review which is not the function of the Court: Ex parte Durairajasingham 168 ALR 407 at [67] per McHugh J. 

32                  In my opinion, the approach of the Federal Magistrate and her Honour's conclusion was entirely correct.

CONCLUSION

33                  The appeal will be dismissed.  The appellant is to pay the costs of the first respondent, to be taxed if not agreed. 

Associate:

Dated:         5 March 2009