FEDERAL COURT OF AUSTRALIA SZOWU v Minister for Immigration and Citizenship [2011] FCA 860 Citation: SZOWU v Minister for Immigration and Citizenship [2011] FCA 860 Appeal from: SZOWU v Minister for Immigration & Anor [2011] FMCA 319 Parties: SZOWU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 770 of 2011 Judge: COLLIER J Date of judgment: 2 August 2011 Legislation: Migration Act 1958 (Cth) s 91R(3) Cases cited: Coulton v Holcombe (1986) 162 CLR 1 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited NAJT v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 147 FCR 51 cited O'Brien v Komesaroff (1982) 150 CLR 310 cited Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 cited Date of hearing: 1 August 2011 Place: Brisbane (Heard in Sydney) Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Wood of Clayton Utz Solicitor for the Second Respondent: The Second Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 770 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOWU Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 2 AUGUST 2011 WHERE MADE: BRISBANE (HEARD IN SYDNEY) THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent fixed in the amount of $2,340. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 770 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOWU Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 2 AUGUST 2011 PLACE: BRISBANE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an appeal from a decision of Cameron FM on 12 May 2011, in turn dismissing an application for judicial review of a decision by the Refugee Review Tribunal (Tribunal) handed down 6 December 2010. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the appellant a protection visa. Background 2 The appellant is a citizen of China who arrived in Australia on a business visa on 11 November 2009. On 27 January 2010 the appellant 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 4 May 2010. The appellant applied to the Tribunal on 31 May 2010 for a review of that decision. 3 The appellant claimed to fear persecution from the Chinese Government because he was a Falun Gong practitioner in China. He claimed that he promoted Falun Gong to his friends and colleagues and continued to practice it in secret after it was banned by the Chinese Government in 1999. The appellant also stated he became the target of the Chinese Authorities because they suspected that he was a member of Falun Gong. In March 2006 the appellant claimed he was arrested, detained for 15 days and forced to sign a confession by the police. The appellant was released once a fine was paid to the police. The appellant claimed this had led to the police threatening to close his business if he did not tell them names of other Falun Gong practitioners. He claimed that the authorities would continue to investigate him if he returned to China. The appellant stated his wife who remains in China had been threatened in police attempts to obtain his whereabouts since he had come to Australia. He also claimed to have participated in Falun Gong activities in Australia. Refugee Review Tribunal 4 On 31 May 2010 the appellant applied to the Tribunal for review of the delegate's decision to refuse his protection visa application. The appellant attended the Tribunal hearing on 26 July 2010. The Tribunal did not believe the appellant's evidence regarding his involvement in Falun Gong in China. The Tribunal stated that certain answers given by the appellant in his protection visa application were identical copies of the claims submitted by another applicant in 2003. This cast doubt on the appellants claims, leading the Tribunal to conclude that the appellant's claims were not true. 5 The Tribunal also did not believe that the appellant had been detained in 2008 for practicing Falun Gong. This claim had not been raised at the delegate's interview. The Tribunal concluded that the appellant had invented this claim after his application was rejected by the delegate. The Tribunal noted that according to country information from the Department of Foreign Affairs and Trade, a person who has come to the adverse attention of the Chinese authorities would experience difficulties in obtaining a legal passport. The fact that the appellant was able to obtain a passport in his own name and travel to Ethiopia in 2009 casts doubt on his claim that he was detained in 2006 for being a Falun Gong practitioner. The Tribunal disregarded the appellants activities in Australia in accordance with s 91R(3) of the Migration Act 1958 (Cth). The Tribunal affirmed the delegate's decision to refuse to grant the appellant a protection visa. federal magistrates court 6 On 22 December 2010 the appellant made an application for judicial review of the Tribunal decision. On 3 May 2011 the appellant amended that application and included the following grounds: 1. The Appellant claimed that his circumstances in China had been good and this matter supported a conclusion that his claims concerning events in China were true. The Tribunal overlooked this matter in finding that that it did not accept the Appellant was telling the truth about his involvement in Falun Gong in China. 2. The Appellant, after arriving in Australia on 11 November 2010, commenced practicing Falun Gong in mid-November. The promptness with which the Appellant commenced practicing Falun Gong in Australia is relevant to whether his interest in Falun Gong was genuine. The Tribunal overlooked this matter in the course of making its finding under s.91R(3) of the Act. 7 The Federal Magistrate dismissed the appellant's first ground on the basis that the Tribunal's determination was ultimately an assessment of the appellant's credibility. The Federal Magistrate stated that once the Tribunal concluded that it did not accept the appellant's allegation of adherence to Falun Gong and his claim of consequential harassment, it was unnecessary for it to consider the family and quality of life issues which the first ground raises. 8 In relation to the second ground, the Federal Magistrate stated that promptness in commencing Falun Gong activities in Australia is as consistent with intent to manufacture an appearance of adherence as it is with a genuine belief. Consequently, the significance of the point at which the appellant commenced his practice of Falun Gong in Australia could only serve to underscore the genuineness of that practice if that practice was itself accepted by the Tribunal to have been genuine. If the Tribunal concluded that the appellant's adherence to Falun Gong was not genuine then it was open to the Tribunal to reject the genuineness of the appellant's Falun Gong activities in Australia. For these reasons the Federal Magistrate dismissed this ground. The Federal Magistrate dismissed the appellant's application. appeal to this court 9 On 30 May 2011 the appellant filed a notice of appeal in this Court against the decision of Cameron FM. The notice of appeal contained the following grounds: 1. Just because my answers to questions 42-46 were allegedly identical to a previous case, the RRT doubts my credibility and gave little weight to my other evidence. 2. RRT had no knowledge of the procedures of criminal detention and arrest in China, and refused to listen to my explanation or investigate my claims. 3. RRT flatly refused to accept my evidence on ground there are many fraudulent documents in China. 10 Prior to the hearing both the appellant and the Minister filed submissions. The appellant was self-represented and the Minister represented by Mr Wood of Clayton Utz Lawyers. 11 In summary, the appellant submitted as follows: He was assisted in his initial application by his friend. The fact that material in his initial application was identical with claims submitted by another applicant in 2003 is purely coincidence, and in fact given the nature of the relevant questions on the application the fact that the answers are identical is not surprising. He was not aware of the procedure before the Tribunal and understood that further evidence could be submitted at a later time. Further, the Detention Certificate and the Arrest Warrant were not available at the time the protection visa was lodged with the Department, but were subsequently found by his family. The Tribunal has misconceived the definition of criminal detention and arrest under the Chinese Criminal Procedure Law. The Tribunal prejudiced the appellant by refusing to recognise official documents, in particular the Property Ownership Certificate, the Property Purchase Invoice and the Household Register, as genuine. The Tribunal erred in respect of the appellant's travel to Ethiopia because his position was misrepresented by the interpreter before the Tribunal. The Tribunal failed to consider the appellant's written statement. Consideration 12 It appears that none of the grounds of appeal before the Court were raised before the Federal Magistrate. If the grounds raised by the appellant on appeal are neither referable to the decision of the learned Federal Magistrate nor raise issues which were before the Federal Magistrate, the appellant requires the leave of the Court to raise those grounds: NAJT v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 147 FCR 51. In particular, the appellant must demonstrate that it is expedient and in the interests of justice that new grounds of appeal be raised: O'Brien v Komesaroff (1982) 150 CLR 310 at 319, Coulton v Holcombe (1986) 162 CLR 1 at 7. 13 The Minister contends that none of the grounds of appeal have merit and therefore leave should be refused. However it is clear from written submissions that the Minister is in a position to meet these grounds of appeal. In the interests of justice I am prepared to entertain them, and therefore grant leave for the appellant to raise them. First ground of appeal 14 It is clear that the coincidence of answers given by the appellant to those provided by another appellant in 2003 was taken into account by the Tribunal in doubting the truthfulness of information provided by this appellant to the Tribunal. It is also clear, however, that the Tribunal put its concerns to the appellant, and that the appellant had the opportunity to comment on those concerns. The Tribunal observed in its Statement of Reasons: The applicant said by way of response that everything he had said in relation to his personal matters and his activities was true but he did not understand fully what had been translated by his friend in answer to questions 42 to 46 on the application form. I do not accept that this is a case where the similarity in the two sets of claims can be explained on the basis that the applicant told his personal experiences to his friend in Chinese and that his friend happened to choose language in translating the claims which was similar to that employed by another applicant. As I put to the applicant, the claims which he submitted were copied word for word from the earlier set with only the relevant dates changed. As I put to the applicant, I consider that this casts doubt on whether those claims are true. 15 The appellant's answers to questions 42-46 on the application form are included in the material before me. The answers are not brief – they constitute two pages of typing, including typographical errors both of spelling and grammar. If these answers are identical to answers given by another appellant some years earlier, it is a not unreasonable inference for the Tribunal to draw that they have been directly copied. To that extent, it is not unreasonable for the Tribunal to form conclusions concerning the credibility of the appellant. 16 The weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Findings in respect of the credibility of the appellant are matters for the Tribunal: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423. The appellant contends that the reason for the identicality of answers to questions 42 to 46 is because Falon Gong practitioners tend to have similar backgrounds. This, however, was clearly an issue for consideration by the Tribunal alone. 17 I do not consider that this ground of appeal has merit. Second ground of appeal 18 The Minister has submitted that this ground of appeal cannot be substantiated because the appellant was given ample opportunity to explain to the Tribunal why the detention certificates and arrest warrant contained dates that seemingly bore no relationship to the dates upon which he asserted he was incarcerated. 19 It is clear from the Tribunal's Reasons for Decision that the Tribunal engaged in substantial discourse with the appellant in respect of his claimed detention and arrest, and procedures in China. I note in particular the Tribunals Reasons for Decision at [65]-[68] (where the Tribunal records the details of its engagement with the appellant in relation to this topic) and at [82]-[86] (where the Tribunal explains, in detail, its findings in respect of those claims). 20 In my view this ground of appeal cannot be substantiated. Third ground of appeal 21 The appellant claims that the Tribunal: flatly refused to accept my evidence on ground there are many fraudulent documents in China. 22 In my view this is not correct. After detailed consideration of the appellant's evidence concerning his alleged arrest and detention, the Tribunal continues at [85]: As I put to the applicant, I also consider it relevant in this context that the information available to me indicates that any document can be either bought or forged in China (DFAT Country Information Report No 301/00, dated 5 June 2000, CS 42649; Research Directorate, Immigration and Refugee Board of Canada, 'China: The manufacture, procurement, distribution and use of fraudulent documents, including passports, hukou, resident identity cards and summonses in Guangdong and Fujian in particular (2005-May 2009)', 24 June 2009, CHN103134/E). The applicant suggested that I could verify whether his evidence regarding the two occasions on which he claimed he had been detained was true but as I put to him I consider that the only way in which I could verify that he is telling the truth would be to contact the PSB in Henan province and this is obviously not possible given that the applicant is claiming that he fears being persecuted by the Chinese authorities. As I put to the applicant, this means that I may give greater weight to the view I form of the applicant's credibility than I do to the documents he has produced. 23 The approach demonstrated by this paragraph is one of scepticism of the Tribunal of the veracity of documents produced by the appellant in the context of the Tribunal's overall view of the appellant's credibility. That the Tribunal should form an initial view of the documents is reasonable in light of country information available to the Tribunal. 24 In my view this ground of appeal is not substantiated. Conclusion 25 The grounds of appeal reveal no appealable error in the decision of his Honour below. Further, they identify no jurisdictional error in the decision of the Tribunal. 26 The appropriate order is that the appeal be dismissed with costs. The Minister has filed an affidavit sworn by Mr Wood in which Mr Wood deposes that the sum of $2,340 represents 65% of the professional costs incurred by the Minister in respect of this matter. I am prepared to order that costs be fixed in this amount. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 2 August 2011