SBPF v Minister for Immigration
[2007] FMCA 379
•19 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBPF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 379 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – alleged persecution based on Falun Gong involvement, Korean ethnicity and Christianity – no jurisdictional error shown. |
| Migration Act 1958, ss.91X, 477 Federal Magistrates Court Rules 2001, sch.1 |
| Applicant: | SBPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 276 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 March 2007 |
| Date of Last Submission: | 19 March 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 19 March 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. Bean |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to s.477 of the Migration Act 1958, the time for the commencement of these proceedings be extended to 13 October 2006.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 276 of 2006
| SBPF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application dated 5 October 2006 and filed on 13 October 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 8 September 2006, which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”), dated 23 May 2006, refusing the applicant’s application for a protection visa.
In his application, the applicant states that the date of the Tribunal’s decision was 8 September 2006, but does not give the date when he received the decision. It appears to have been sent to his solicitor under cover of the Tribunal’s letter dated 11 September 2006. In his application to this court, the applicant indicates he seeks an extension of time under s.477 of the Migration Act. The first respondent has indicated in his written submissions that he neither consents to, nor opposes, an extension of time being granted.
Given that it is not clear when the applicant received notification of the Tribunal’s decision, that his application to this court would only be a few days out of time, and in circumstances where the Minister neither consents to, nor opposes the extension of time and no prejudice has been demonstrated by the Minister which would suggest an extension of time is not appropriate, I am satisfied that it is in the interests of the administration of justice to extend until 13 October 2006 the time within which the applicant may seek an order for extension of time; and that the time for commencement of the proceedings be extended to 13 October 2006.
Therefore, one of the orders of the court will be that the time for the commencement of these proceedings be extended until 13 October 2006.
Section 91X of the Act provides that the court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant in the following terms at page 153 of the Court Book:
… he was born 14 December 1970 in Ziling Province, China. He is an ethnic Korean and gives his religion as Christian. His education history indicates that he completed nine years of education, and then worked on a government farm from 1987 to 1989, a worker in industry [from] 1989 to 1997, and then had his own restaurant from January 1997 until his departure for overseas.
The applicant claims to fear persecution in China because of his religious beliefs, Korean ethnicity and affiliation with Falun Gong practitioners.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 7 of the Tribunal’s decision (pages 153 to 156 of the Court Book (“CB”)). Relevantly, they are in summary:
a)people of Korean descent are discriminated against by the Chinese Government, and are considered to be second-class citizens;
b)Koreans are forced to obtain a permit before legally being able to give birth to a child, and are forced to pay fees to the government if the child is attending school;
c)the Government does not support Catholicism and regularly persecutes members of the faith;
d)government officials use excessive force to ensure that people either renounce their faith or become too afraid to attend religious gatherings and therefore lose contact with their church;
e)in 1998, the applicant met some Falun Gong practitioners and was sympathetic to their cause. The applicant offered to let them practise their Falun Gong beliefs in his house. They came to his house every day to practise Falun Gong. One day, the Falun Gong practitioners did not show up and this caused the applicant to fear that the practitioners had been caught by the Chinese authorities. As a result, the applicant did not return home that day;
f)the applicant’s father advised him that night that plain clothes police had attended his home asking for his whereabouts. The police told his father that they were aware of the applicant’s affiliation with the Falun Gong practitioners and therefore he was deemed to be against the government and subject to imprisonment. The applicant says that, if he was caught by the police, he would not only be gaoled but possibly killed;
g)the applicant says that he had no choice to leave China and some time after the incident in 1998, he made arrangements and travelled to Australia. His application for a protection visa was rejected and he was deported back to China by Australian authorities. Upon return in 2004, he went into hiding but fled again and arrived in Australia in September 2005, only to be deported again to China in November 2005;
h)upon returning to China for the second time, the applicant says he had no choice but to remain in hiding at his sister’s home because the police in his area were still actively looking for him and he feared being caught and killed by them. He fled to Australia again, arriving in March 2006. At the Tribunal hearing, referred to at Court Book page 155, the applicant said that when he was returned to China on the last occasion he was fined 3000 Yuan, and that he was required to pay this fine on arrival at the airport before he was released; and
i)the applicant told the Tribunal that, next time, he will have to pay 7000 Yuan before the authorities will release him.
The Tribunal’s decision and reasons
Turning to the Tribunal’s decision, after discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967. The Tribunal’s decision was based on the following findings and reasons:
a)as to the applicant’s involvement with Falun Gong:
The Tribunal has considered the applicant’s evidence about being sought by the authorities because he offered the use of his family home to a group of Falun Gong practitioners in 1998. The Tribunal accepts that this group of Falun Gong practitioners came every day for about two weeks to perform their exercises in his yard and that the last time the group came was in March 1998. The Tribunal accepts that the authorities may have had an interest in him at that time because of his affiliation with Falun Gong. It also accepts that the authorities may have visited his father and asked about his whereabouts at that time. It does not accept that the police continue to visit his parents’ house and ask about the applicant’s whereabouts because of his association with Falun Gong. The applicant confirmed at the hearing that he was released from detention at the airport after the requisite fine was paid when he returned in 2004 … At the hearing, the applicant said he had recently done some Falun Gong exercises to release stress of the detention centre, but he is not interested in other aspects of Falun Gong. In view of the limited role the applicant had with Falun Gong, the period of time since he gave that support, his clearance at the airport after paying the fine on his return in 2004 and his stated lack of interest in Falun Gong, the Tribunal does not accept that he is currently of interest to the authorities for this reason. The applicant does not claim and there is no evidence to indicate that he would actively pursue Falun Gong if he were to return to China. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising from this aspect of his claims. (CB 156 – 157).
b)as to the applicant’s claim that he is a Christian, the Tribunal said this:
At the hearing the applicant said that he had no problem practising Christianity in China. He has not had any problems practising his Christian faith. If he returned to China, he would use his enthusiasm to pass on the Gospel. He would do what he could. If possible, he would establish a church for Christians. In response to a question about what denomination the church would be, he said it would be of no denomination. (CB 157).
Referring to country information relating to the growing popularity of Christianity in China, the Tribunal said this:
The Tribunal finds, in the circumstances that there is no real chance that he would face persecution as an ordinary Christian of no particular denomination in China now or in the reasonably foreseeable future. (CB 157).
c)as to discrimination on the grounds of the applicant’s Korean ethnicity, the Tribunal said this:
The applicant does not claim and there is no evidence to support the claim made by his adviser about the discrimination of Korean families at the time of the birth and education of their children. The applicant did not claim that he was discriminated against when his daughter was born or when she went to school. There is no evidence to support the applicant’s claim at the conclusion of the hearing that he would be sentenced to 10 to 20 years in prison and have no land after his release on account of his Korean ethnicity … The Tribunal does not accept that the applicant was discriminated against due to his ethnicity. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising from Korean ethnicity. (CB 157 – 158).
d)as to the applicant’s claims about being detained and fined, the Tribunal said this:
The Tribunal accepts that he faces prosecution for [having left China illegally on two occasions] and may face a further fine and/or a period of detention as a consequence of his recent departure. There is no independent evidence before the Tribunal from which the Tribunal could conclude that the applicant faces more severe punishment for a Convention reason than other people who have left China illegally or on account of his Korean ethnicity. The fact that the applicant was released from detention at the airport after the fine was paid on his return in 2004 indicates that he was not of interest to the authorities at the time. There is no evidence to indicate that he was considered to be a traitor on his return back to China at that time even though he had applied for refugee status during his first visit to Australia. If the applicant went into hiding after he was released from detention at the airport in 2004, it was not for a Convention reason. In the Tribunal’s view, if the applicant is prosecuted on return to China, it will be because he again left China illegally, and not for a Convention reason.
(CB 158).In essence, the Tribunal found this:
… the applicant’s fear of returning to China is not for reasons of persecution for his religion, race or for any other Convention reason. It is not satisfied that any Convention reason is the essential and significant reason for the harm he fears. (CB 158).
Proceedings in this Court
As to proceedings in this court, the grounds of the application are:
1. RRT Member did not consider how dangerous it was for me to associate with Falun Gong practitioners.
2. Member of RRT [did not] give enough weight to the fact that Korean people are treated badly in China.
3. Religious persecution [on the ground of Christianity] not taken into account.
And at the hearing today the applicant made arguments based on the evidence he advances in support of his application for refugee status.
Dealing with each of these grounds in turn:
The Tribunal did not consider the danger of persecution by reason of association with Falun Gong.
The Tribunal did consider the evidence which the applicant gave concerning the consequences of his association with Falun Gong.
As can be seen from the quotation from the Tribunal’s decision on this subject ([9(a)] above), the Tribunal did accept that the authorities may have had an interest in him in the past, but it did not accept that the police continued to visit the applicant’s parents’ house and ask about his whereabouts.
Significantly, the Tribunal recounted the experience of the applicant when he was returned to China by deportation from Australia. The Tribunal observed that he had been fined and, once the fine was paid, he was released. Overall, having considered the evidence before it, the Tribunal was of the view that the applicant did not have a well-founded fear of persecution arising from this aspect of his claim. This was a conclusion open to it on the facts. Having asked itself the right question and come to a conclusion open to it on the facts, no jurisdictional error has been demonstrated in respect of this asserted ground of review.
Failure to give weight to bad treatment of Korean people in China.
Again, the Tribunal expressly considered the applicant’s claim that he would be persecuted because of his Korean ethnicity. Again, as the quotation from the Tribunal’s decision already appearing in these reasons makes clear ([9(c)] above), the Tribunal considered the evidence available to it and, on that evidence, found that there was no such discrimination.
The ground of review asserted in the application refers to a failure by the Tribunal to give weight to bad treatment of Korean people in China. However, the Tribunal did not find that there had been such bad treatment, so there is nothing to give any weight to. But, in any event, the Tribunal asked the question whether the applicant faced persecution because of his ethnicity, and, in a conclusion which was open to it on the evidence, found that he would not. Consequently, no jurisdictional error has been demonstrated in respect of this asserted ground of review.
The Tribunal did not take account of persecution of Christians.
Again, the Tribunal addressed itself to the ground raised by the applicant. In this respect, it asked whether the applicant might properly have feared persecution by reason of being a Catholic. However, the Tribunal observed that the applicant had said to it that he had no problems practising Christianity in China. The Tribunal took account of what the applicant had said to it, as well as independent country information which was available to it.
Drawing on the evidence available to it, it came to a conclusion which was open to it: that the applicant would not face persecution as an ordinary Christian of no particular denomination in China now or in the reasonably foreseeable future. Again, having directed itself to the correct question and arriving at a conclusion which was open to it on the evidence, the Tribunal reached a conclusion in respect of which no jurisdictional error has been demonstrated.
Oral submissions at the hearing in this Court
As to the applicant’s oral submissions today, the applicant focused on what he said would be the mistreatment he would suffer were he to return to China as a result of his association with Falun Gong. However, these submissions go to the merits of the Tribunal’s decision, not to issues of jurisdictional error. It is not the role of this court to decide the Tribunal’s decision again, or to reconsider the matters which were before the Tribunal. The role of this Court on a judicial review application, in respect of a decision of the Refugee Review Tribunal, is to determine whether there has been jurisdictional error in that decision-making process.
I should also observe that, in his submissions today, the applicant made reference to his illegal departures from China and he also addressed the individual points of review set out in his application. However, none of the arguments or submissions that he put demonstrated any error on the part of the Tribunal.
Conclusion
Consequently, jurisdictional error on the part of the Tribunal not having been shown, the application will be dismissed.
RECORDED : NOT TRANSCRIBED
In this matter, because the applicant has not been successful, there will be an order for costs in favour of the Minister. I see no reason why the ordinary course should not follow, which is that costs follow the event. Further, the Minister has sought an amount which is provided in paragraph 1(c) of Part 2 of Schedule 1 to the Rules of this court. As those are the costs prescribed by the Rules and there is nothing adduced to indicate to me why that figure is not an appropriate amount, that is the amount which will be ordered; the amount being $5,000.
Finally, the Minister has asked that the court record be changed to reflect his new title, and there will be an order to effect this.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 19 March 2007
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