Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451
Outcome: cited
The Applicant also handed up and stated that she wished to rely upon a letter dated 10 November 2008 addressed to the Court. For the purposes of the leave to appeal application the relevance of the letter is that it signifies a request on the part of the Applicant to add a further ground to the bases upon which, were leave granted, the appeal against the Federal Magistrate's decision would be prosecuted. Materially, the letter reads: More importantly I attach a copy of the Federal Court decision of SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (19/6/2008) and highlighted sections of my RRT decision on 4 January 2007. I have been informed that the RRT appears to have erred and made an error of law in taking into account my Falun Gong activities in Australia. Mention of these Australian activities also made in the Federal Magistrates Court decision (see attached). [sic] Attention was drawn by highlighting to particular passages in the attachments. 8 I mean no disrespect to the Applicant in observing that, though the letter is signed by her, it exhibits a standard of literacy in English and forensic sophistication quite beyond her, having regard to my observations of her at the November and earlier hearings. That is not in any way to gainsay her ability to seek to rely upon it. 9 Mr Baird of the solicitors for the Minister, whose conduct of the case for the Minister on the hearing of the application and on earlier occasions gave practical exemplification to the letter and spirit of the model litigant obligations promulgated by the Attorney-General in Appendix B to the Legal Services Directions made pursuant to s 55ZF of the Judiciary Act 1903 (Cth), had been made aware of the contents of this letter prior to the hearing being called on. On behalf of the Minister he did not object to the passage quoted in the letter being treated as an additional foreshadowed basis of challenge with whether to grant leave to appeal ought to be granted being determined accordingly. This seemed to me to be an appropriate course to take. I directed that the letter and its attachments be marked as Exhibit 1 so as to identify them. Because the letter identifies the Applicant's name and having regard to s 91X of the Migration Act , I also directed that these materials be a confidential exhibit. 25 In SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451 the Full Court held that this subsection first required a decision-maker to make findings of fact as to the conduct, if any, in which a visa applicant had engaged in Australia. Having so done and if it is found that the visa applicant has engaged in conduct in Australia, s 91R(3) had the effect, so the Full Court decided, that the decision-maker must for all purposes disregard the person's conduct in Australia, unless the person satisfies the decision-maker that he or she has engaged in the conduct in Australia otherwise than for the purpose of strengthening the person's claim to be a refugee. The statutory command to disregard was all embracing, so it was held, with it constituting a breach of s 91R(3) and an error of law for conduct in Australia to be taken into account for the purpose of assessing whether or to what extent to accept the credibility of a visa applicant's claim in respect of events said by that person to have occurred outside Australia. 26 Should the Applicant's belated raising of an asserted violation of s 91R(3) of the Migration Act make any difference to this outcome? 27 As in SZJGV , no point concerning s 91R(3) was taken before the Federal Magistrates Court on 12 November 2007, although the learned Magistrate did observe (at [26]) that, "jurisdictional error is not apparent in relation to the Tribunal's decision". 28 There are passages in the reasons of the Tribunal which arguably do evidence that the Tribunal's findings concerning the Applicant's activities in Australia influenced conclusions reached by the Tribunal concerning the Applicant's credibility generally and in particular whether or not she had practised Falun Gong in China. I set out these passages below: I asked the applicant when she learned to do the five exercises and she said before 2000. I repeated the question and she said 1995. I asked how often she did the exercises between 1995 and 2000 and she said "Very little" sometimes once a week or once a fortnight. She said that after 2000 she did the exercises once a week. She said that she does the exercises in Australia "sometimes" sometimes once in half a month or a month. She does them at her home. I put to her that most practitioners I had spoken to exercise more frequently. She replied that everyone is different. I asked whether being a Falun Gong practitioner involved anything other than performing the exercised. She asked whether I meant in China or in Australia. She said that in Australia she takes part in "activities". These activities consist of a parade at Town Hall stationer once a month. I asked the purpose of this parade, and she said that Falun Gong practitioners get together to hold activities. She said that she does not do any other Falun Gong activities in Australia. She then added that sometimes there is a parade in Chinatown. I asked what happens at these parades and she said that they take photos and distribute materials. I asked what the purposes of taking photos was, and she said that the other practitioners take photos maybe they have lodged protection visa applications as well. I asked the applicant about the content of the Falun Gong materials that she distributes. She said "I forget". I asked whether she could tell me anything about the materials at all, but she said that she cannot remember. I asked whether she has any Falun Gong materials at home. She said that she is not sure. I asked whether she has any books about Falun Gong. She said that she does not, and that she has not seen any books about Falun Gong. I then asked her the name of the founder of Falun Gong, which she knew, and asked whether he had written any booked. She replied that he had written Zhuan Falun. She said that she had read this book before, but now she forgets what it is about. She read it in China in 2005. She read it "roughly" at her home. She did not know whether Master Li had written other books, she only read that one book. I asked her what Falun Dafa means and she said that she does not know; nor did she know that a Falun is. ... I asked the application what it would to her if she was unable to practise Falun Gong any more. She said that this was impossible because she is addicted to Falun Gong. I put to her that she only practised once a week. She replied that this is what she likes to do. It would be impossible for her not to do this it is beneficial to her health. ... I asked her to tell me anything at all about the material she distributes and she said that she does not know anything. She said that she has forgotten what was written on the pieces of paper she handed out. I asked why she handed out this material and she said that because she is a Falun Gong practitioner, sometimes she needs to distribute this material. I asked by Falun Gong practitioners need to do this and she replied that they ask other people to practise Falun Gong. I asked why she had taken photos of herself handing out this material and she said that the photos were her "material". I asked the application about the purpose of a demonstration depicted in one of the photos she submitted, and she said that it was to let other people know that they were Falun Gong practitioners. I asked about a banner that she was standing in front of in one of the photos (concerning organ harvesting) and asked what it was about. She said that she had forgotten. ... I put to the applicant that in view of her lack of knowledge of Falun Gong I did not think that she was a genuinely committed practitioner. Further, it seemed to me that the Falun Gong activities that she had engaged in, in Australia were done for the purpose of strengthening her claims to refugee status, as she demonstrated so little understanding of Falun Gong. The applicant did not respond. .. I found the applicant to be a highly unsatisfactory witness. For most of the hearing she appeared to be deliberately attempting to avoid answering my questions. Many questions had to be repeated several times before she gave a meaningful answer. From the outset, when I asked her when she started to practise Falun Gong, she provided contradictory and inconsistent answers, saying at first that it was in 2000, then that it was "in the 1990's", and then that it was in 1995. When asked to resolve this contradictory evidence, she said that she took up "formal" practice after 2000, but was then unable to explain what she meant by this term, or to specify how her practice was different before and after 2000. The applicant was able to demonstrate some knowledge of some aspects of Falun Gong, for example, the names of the exercises, the name of the founder, and the fact that practitioners are supposed to be good people and do good deeds. She was also able to demonstrate one exercise. I note, however, that this basic factual information is readily available, for example, on the Falun Gong website. Moreover, the applicant claims to practise Falun Gong "very little" in both the PRC and in Australia, providing vague and inconsistent responses as to precisely how often, ranging from once a week to once a month. ... I do not consider that the applicant displayed the level of knowledge of Falun Gong that could reasonably be expected of a practitioner of at least five years standing, who has had the opportunity to practise both inside and outside China. Having considered the oral evidence presented by the applicant at the hearing, I am not satisfied that she is now, or was prior to her departure from the PRC, a Falun Gong practitioner. The applicant's lack of knowledge of the spiritual and theoretical beliefs of Falun Gong leads me to conclude that she is not a Falun Gong practitioner. Because I do not accept that the applicant is now, or ever was a Falun Gong practitioner, I do not accept that she came to the attention of the PSB prior to her departure, or that she was ever detained in the PRC as a Falun Gong practitioner. The applicant claims to practise Falun Gong in Australia alone at home, once a week, just as she claims to have done in the PRC. The main "Falun Gong activity" in which she claims to engage in Australia is distributing Falun Gong material. However, she was unable to tell me anything about the content of the material which she claims to distribute. Nor was she able to tell me the purpose of demonstrations in which she claims to have participated, and in which she submitted photographs of herself standing in front of a banner referring to persecution of Falun Gong practitioners in China. In view of her apparent lack of knowledge or understanding of the material she claims to distribute, or the purpose of demonstrations in which she claims to have participated, I am satisfied that, to the extent that the applicant has engaged in these activities in Australia, this is not done out of a genuine commitment to Falun Gong, but rather, to strengthen her claim to be a refugee. Accordingly, this conduct must be disregarded, pursuant to s 91R(3) of the Act. In all the circumstances, I do not accept that the applicant was a Falun Gong practitioner in the PRC or that she came to the adverse attention of the authorities as such prior to her departure. I am not satisfied that she has carried out Falun Gong related activities in Australia out of genuine commitment to Falun Gong. As I do not accept that the applicant is a genuine or committed Falun Gong practitioner, there is not reason, based on the credible evidence before me, to suppose that she should seek to practise Falun Gong it she were to return to the PRC. In these circumstances I am not satisfied that the applicant has a well founded fear or persecution in the PRC as a Falun Gong practitioner. 29 On the hearing of the application I queried whether or not in the circumstances of this case the interests of justice might be served by treating argument on the application for extension of time and leave as argument on any appeal and determining the appeal instanter in the event that the procedural application was successful. The Minister did not raise any objection to that course, although his representative had not, given the shortness of notice by the Applicant as to a desire to rely upon a s 91R(3) point, had the opportunity to confirm whether an application for special leave to appeal had been made in respect of the Full Court's decision in SZJGV . I was informed earlier in the week by counsel appearing on behalf of the Minister in another case that an application for special leave had been instituted and remained pending. That this was the position was confirmed having regard to available lists published by the High Court with respect to pending special leave applications. 30 It seems to me preferable not to put the position with respect to whether there has been a breach of s 91R(3) by the Tribunal any higher at the present than "arguable". That it is arguable and the potential consequences for the Applicant in the event that an extension of time and leave to appeal were refused dispose me, as a matter of discretion, to extend time and to grant leave to appeal. Upon reflection, the better course, it seems to me, given that a special leave application is pending, is not to proceed to determine the appeal. To allow that appeal on the strength of the applicability of what was said of s 91R(3) by the Full Court in SZJGV and to return the case to the Tribunal may be to proceed on what proves to be a false legal premise. On the other hand, if special leave is refused or an appeal against the decision in SZJGV is dismissed, the appeal in this case would be able to be heard relatively quickly. It seems to me preferable to await the disposal, one way or the other, of proceedings in the High Court in SZJGV . I expressly refrain from reaching any concluded view as to whether there has been a breach of s 91R(3). 31 I dispense with the requirement that an application for leave to appeal be filed within 21 days of the date of pronouncement of the judgment of the Federal Magistrates Court on 12 November 2007 and instead extend the time for the filing of the application for leave to appeal to 7 December 2007. A grant of leave to appeal should be granted to the Applicant but it should though be restricted to an appeal on the following ground, as derived from the s 91R(3) point sought to be raised in the letter of 10 November 2008 and that agitated in SZJGV : The Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal's decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa. In so doing, the Tribunal failed to comply with the stipulation, made in s 91R(3) of the Migration Act 1958 (Cth) that such conduct must be disregarded. 32 Because the Applicant is not legally represented, I note that the effect of O 52 r 15(1)(a)(ii) is that she must file and serve a notice of appeal expressing the ground upon which leave to appeal is granted within 21 days after today, ie not later than Monday 22 December 2008. 33 It remains to make some brief comment about the position in which the Applicant claimed to find herself so far as her visa status was concerned in the interval between the August and November hearings. I directed that a copy of the transcript of the hearing on 14 November 2008 be prepared and made available to the Minister's legal representatives with the Minister then making such response as he may be advised by 21 November as to the allegations made by the Applicant. I did so because, if accepted, the Applicant's allegations raised the spectre of possible interference by officers of the Executive Government with the Applicant's ability freely to prosecute her application and appear on its hearing on 14 November 2008. A response on behalf of the Minister was received on 21 November 2008. It seems to me that the response ought to be marked as an exhibit but, because it names the Applicant, that it ought to be a confidential exhibit and be placed in a sealed envelope marked "Minister's response to Applicant's allegations concerning visa dealings" and "Not to be opened without the leave of a court or a judge".