FEDERAL COURT OF AUSTRALIA SZSLN v Minister for Immigration and Border Protection [2014] FCA 104 Citation: SZSLN v Minister for Immigration and Border Protection [2014] FCA 104 Appeal from: SZSLN v Minister for Immigration and Border Protection & Anor [2013] FCCA 1510 Parties: SZSLN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 2067 of 2013 Judge: COWDROY J Date of judgment: 19 February 2014 Legislation: Migration Act 1958 (Cth) ss 36, 65, 424A Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Date of hearing: 10 February 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 34 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr R Baird of Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2067 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSLN Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE OF ORDER: 19 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2067 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSLN Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE: 19 FEBRUARY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals from a decision of the Federal Circuit Court of Australia ('the FCCA') delivered in Sydney on 1 October 2013. By its decision, the FCCA dismissed an application made to it from the decision of the second respondent ('the Tribunal') dated 21 November 2012. The Tribunal's decision affirmed a decision of a delegate of the first respondent ('the Minister') to refuse to grant the appellant a Protection (Class XA) visa ('the protection visa') under s 65 of the Migration Act 1958 (Cth) ('the Act'). FACTS 2 The appellant was born on 1 August 1979 in the People's Republic of China ('the PRC'). She arrived in Australia on 6 July 2011 holding a student visa. On 28 November 2011, the appellant applied for the protection visa on the basis that she would suffer persecution if she was returned to the PRC due to being a Falun Gong practitioner. 3 The appellant claimed to have practised Falun Gong since 1998 when her cousin taught it to her in Zhengkhou Town, Hengshui City. The appellant claimed that she continued to practise Falun Gong in private after it was banned in 1999. The appellant was married in 2000, and gave birth to her first son in 2001. From 2005 until 2009 she claimed to have assisted her cousin and other practitioners to distribute leaflets and videos promoting Falun Gong. Approximately a month after the birth of her second son in November 2010, the appellant claimed that the authorities attended her home and discovered Falun Gong material. As a result, the appellant was detained until her family paid a bribe to the authorities and she signed a guarantee not to practise Falun Gong and to report other practitioners to the authorities in the future. She was released from detention on 14 March 2011. She thereafter wished to depart the PRC and study in Australia. 4 The appellant claims to have continued practising Falun Gong in Australia since her arrival. APPLICATION TO THE TRIBUNAL 5 The delegate of the Minister refused the appellant's application on 30 May 2012 having not accepted significant claims of the appellant, including that she was a genuine Falun Gong practitioner. 6 The appellant applied to the Tribunal for review of the delegate's decision on 4 July 2012. The appellant attended a hearing before the Tribunal on 4 October 2012, and accepted an invitation from the Tribunal through her migration agent to attend a second hearing on 22 October 2012. She failed to attend the second hearing. 7 The Tribunal did not accept the appellant's claims concerning her practice of Falun Gong in the PRC, finding that her evidence was inconsistent. Further, the Tribunal found that the appellant had only engaged in Falun Gong activities in Australia to support her claims to protection rather than as a genuine expression of her political or religious beliefs. 8 The Tribunal concluded that the appellant did not satisfy the refugee criteria in either s 36(2)(a) or s 36(2)(aa) of the Act and accordingly affirmed the decision of the Minister not to grant the protection visa. APPLICATION TO THE FCCA 9 By application filed on 24 December 2012, the appellant applied for judicial review of the decision of the Tribunal. Her application stated: 1. I am a Falun Gong practitioner and was arrested and suffered persecution. My life was under constant harassment after I was released form detention. After arrival of Australia., I joined Falun Gong activities ,attending the Melbourne anti-persecution protest. My picture appeared Epoch Times website. 2. But the Tribunal failed to take all my claims and evidences into account and made a decision of refusing my application . The Tribunal made jurisdictional error. [Errors in original] 10 The primary judge reviewed all of the factual information relied upon by the appellant. However her Honour concluded that the Tribunal clearly understood the nature of the claims made by the appellant and that it did not fall into jurisdictional error. Her Honour concluded that the Tribunal's findings were open to it upon the material before it. The primary judge also specifically rejected an oral submission made by the appellant, namely that the Tribunal failed to take into account a photo of her participating in Falun Gong activities on the Epoch Times website. 11 The primary judge concluded that the appellant's grounds of appeal appeared to disagree with the findings and conclusions of the Tribunal, rather than identify any jurisdictional error. Accordingly, the application was dismissed. APPEAL TO THE FEDERAL COURT OF AUSTRALIA 12 The grounds contained in the notice of appeal to this Court filed on 8 October 2013 are as follows: I am a aflun Ghong practitioner and arrested and peresecuted. After being released, I was under contant harassment. After arrival of Australia, I joined acticities and attended anti-persecution in Melbourne. My picture appears in the Epoch Times Websitre. The Trinbunal failed to consider my claims and evidence ,making jurisdictional error.; [Errors in original] 13 In substance, the grounds raised by the appellant before this Court are identical to those considered by the primary judge. 14 The appellant appeared unrepresented but assisted by an interpreter at the hearing before this Court. Upon invitation, the appellant made several submissions. 15 First, she stated that she believed that the second hearing before the Tribunal referred to above was her chance to explain any matter that was causing concern to the Tribunal. She claimed that she did not attend because she was informed by her then migration agent that she did not need to. Such claims must be considered against certain facts. 16 The record shows that a Response to Hearing Invitation form in relation to the second Tribunal hearing was completed by the migration agent and signed by the appellant before being returned to the Tribunal. Such form indicated that the appellant would attend the second hearing. The appellant identified her signature on the form which bore the date 14 October 2012, but stated that she could not read English. 17 Following the second hearing, a case note was prepared by the Tribunal on 22 October 2012 at 3.58 pm which stated, inter alia: I rang the representative and advised that his applicant had not attended the eharing this afternoon. [The migration agent] did not understand why this was the case as he said the applicant had attended his office a few days ago and said she would attend. I said the Tribunal would be sending a letter seeking comment on information in relation to the eth applicant's case and I aksed if [his] fax machine was working yet. [The migration agent] said it wasn't but that he would be happy to receive the letter by e-mail. I confirmed that the e0mail address was still […]. [The migration agent] said he was in the process of getting some material translated that had been sent by the applicant's sister from overseas and he may also want to make a submission about the applicant's non-attendance after he had spoken to her. I advised that the due date of the letter I was about to send would be 28 days from the date of the letter [Errors in original] 18 On 22 October at 4.27 pm, the Tribunal forwarded to the migration agent a copy of an Invitation to Comment or Respond to Invitation under s 424A of the Act. The attached letter raised the following issue: In your application for a student visa to come to Australia you included a copy of a letter dated 11 January 2011 from an education provider in Australia, offering you a place in a course commencing on 12 July 2011. The letter refers to your application to study at Holmesglen Institute of TAFE in Melbourne, Victoria. 19 The letter requested a response by 5 November 2012. 20 Subsequently two additional pieces of information were provided to the Tribunal. First, the appellant provided a letter to which were attached several photographs of a Falun Gong demonstration in Melbourne published on the Epoch Times website. 21 Secondly, on 23 October 2012 the migration agent sent letters to the Tribunal in support of the appellant's claims, including a letter purporting to be from the appellant's sister. 22 The Tribunal considered the above material. As to the response to the s 424A enquiry, the Tribunal noted at [124] of its decision the assertions contained in the letter purportedly written by the appellant's sister. Those assertions included that the appellant was arrested and detained because of her adherence to Falun Gong; that the appellant's sister had made all the arrangements 'and acted as the [appellant's] agent with regard to the application to come to Australia'; and that soon after the appellant's release from her claimed detention, the appellant's sister instructed the appellant's friend to raise with the appellant the idea of coming to Australia. 23 The Tribunal found at [124] however that: Indeed, the sister's letter neatly answers each of the Tribunal's concerns. However, it does not, and cannot overcome the directly inconsistent evidence given by the applicant in her written statement which is that she herself contacted Education Providers after speaking with her friend after her release from detention. The applicant confirmed the accuracy of this statement at the hearing. 24 The Tribunal concluded at [125] that the appellant's evidence on this issue was unreliable and the Tribunal did not find the appellant to be a truthful witness. 25 In relation to the photographs published in the Epoch Times, the Tribunal at [142] of its decision found that it was not satisfied that the appellant participated in Falun Gong activities as a genuine expression of her religious or political beliefs or for other reasons not associated with the making of an application for protection. 26 At [147] of its decision, the Tribunal also referred to the fact that it was unable to identify the appellant in any of the images which were published on the Epoch Times website. The Tribunal specifically considered the appellant's claim that she was told that the Chinese Government had spies in Australia and that she feared that a spy or agent had taken her photograph while she was participating in the rally. 27 Having considered the material before it, together with relevant country information on the PRC, the Tribunal did not consider that there were substantial grounds to believe that the appellant was at risk of harm if she were returned to the PRC. 28 The Court now returns to the submission of the appellant that she was told by her migration agent that she need not attend the second Tribunal hearing. Significantly, such claim was not raised before the FCCA nor in the appellant's grounds of appeal before this Court. There is no evidence to support such allegation. It is difficult to reconcile the appellant's claim with the fact that the migration agent is recorded as having expressed surprise at her non-attendance in the case note referred to above. Further, the migration agent had complied with the requests of the Tribunal for further information by providing letters in support of the appellant's claims. 29 Even if the appellant was informed that she was not required to attend the hearing, this fact, in the absence of proven fraud by the migration agent, does not entitle her to relief. In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, the High Court of Australia unanimously found at [51]–[52] that where a migration agent commits actual fraud on an administrative tribunal, the resulting decision of the tribunal is no decision at all. However the Court emphasised at [53] that where a person whose conduct before an administrative tribunal is affected by bad or negligent advice or some other mishap to the detriment of that person, that person can not be heard to complain. In the absence of any evidence of fraud by the migration agent, the appellant's claim provides no valid basis for challenging the decision of the Tribunal. 30 As a second basis for appeal, the appellant claimed that the inconsistencies in the dates of her evidence were due to a loss of memory because of her mental state. She submitted that it was for this reason that she arranged for her sister to write a letter to the Tribunal. She said that the Tribunal erred in concluding that the letter was written 'on purpose'. The Court understands this to mean that the Tribunal found that the information provided in the letter was false and only provided to support the claims of the appellant. 31 The Tribunal found that the letter, on the basis that it was written by the appellant's sister, answered the Tribunal's enquiries. However it did not adequately explain the clear discrepancy in the evidence provided by the appellant in relation to correspondence with an Australian education provider as referred to at [23] above. 32 Findings of fact are a matter solely for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. So too are findings regarding the credibility of the appellant or other persons: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Accordingly, the second oral submission of the appellant must be rejected. 33 The third issue raised by the appellant was the finding of the Tribunal that there were inconsistencies generally in the appellant's evidence. The appellant reiterated before this Court that she wished to return to the PRC 'more than anyone else' but that she would be persecuted because her photograph was published on the Epoch Times website. The appellant also emphasised that she was uneducated, and that she did what other people told her to do. These submissions, even if accepted as explanations as to why the appellant's evidence was inconsistent, only challenge findings of fact made by the Tribunal. They do not form a basis on which the Tribunal's decision may be impugned. 34 On the material before it, the Court cannot identify any jurisdictional error in the decisions of the Tribunal and the primary judge. It follows that the appeal must be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 19 February 2014