SZACV v Minister for Immigration - [2003] FMCA 322

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACV v MINISTER FOR IMMIGRATION

[2003] FMCA 322

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for reasons of his membership and practice of Falun Gong – where the Tribunal made adverse findings of the credibility of applicant’s evidence – whether the Tribunal made factual errors – whether the Tribunal’s reasoning was illogical – where the applicant seeks a merits review – whether the Tribunal failed to make a finding on future persecution – whether the applicant was denied procedural fairness.

Migration Act 1958 (Cth)

Muralidharan v Minister for Immigration (1996) 62 FCR 402
MIEA v Guo (1997) 191 CLR 559

MIMA v Yusuf (2001) 206 CLR 323
MIEA v Wu Shan Liang (1996) 185 CLR 259
WABR v Minister for Immigration [2002] FCAFC 124
NAMM v Minister for Immigration [2003] FCAFC 32
Abebe v The Commonwealth (1999) 197 CLR 510
Wang v Minister for Immigration (2000) 205 FCR 548
Re Minister for Immigration; Ex parte Applicant S20/2002;
Appellant S106/2002 v Minister for Immigration [2003] HCA 30
Minister for Immigration v NAOS [2003] FCAFC 142

Applicant:

SZACV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1375 of 2002

Delivered on:

8 August 2003

Delivered at:

Sydney

Hearing date:

10 July 2003
(Last submissions received 23 July 2003)

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr D Brezniak

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1375 of 2002

SZACV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China who arrived in Australia on 22 May 2001. On 22 June 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth). On 27 June 2001 a delegate of the Minister refused to grant the visa and on 30 July 2001 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal considered the matter and heard oral evidence from the applicant on 25 September 2002. On 29 October 2002 it made its decision to affirm that of the delegate and handed it down on 21 November 2002. The applicant now seeks review of that decision.
The applicant was represented at the hearing. He produced and tendered without objection a transcript of the evidence given before the Tribunal. On his behalf it was argued that the Tribunal made errors and did not accord procedural fairness to him. The Tribunal both asked the wrong questions and answered the wrong questions. At the conclusion of the hearing I requested the parties to provide me with written submissions which they have now done.
The applicant is a male in his thirties. He attended a technical school of motor transportation and appears to have lived and worked all his life in the Fujian Province. His claim to have a well founded fear of persecution for convention reasons arises out of his membership and practice of Falun Gong. He claims to have been involved in Falun Gong since the beginning of 1999. He claimed to have become active in the practising group which he joined. Due to his managing skills and active involvement he was asked to be a major voluntary organiser by the practitioners of the group [CB 56]. At [CB 57] he gave a list of his activities which range from allocating new members to orientation programs, to promoting the awareness of Falun Gong in the broader community of Fuzhou. He accepted that after Falun Gong was banned in July 1999 there had been changes to the group’s ways of gathering but stated that his activities had been similar to those done before the crackdown although in different and more restricted ways. He states:
“In summary, I am not simply an ordinary adherent of Falun Gong but an active facilitator and organiser.” [CB 57]
The applicant claimed that in March 2001 he received a notice from the Public Security Bureau requiring him to attend ideological reform classes for one week. He stated that during that time he was brainwashed. The applicant also claims to have received a notice [CB 38] dated 4 May 2001 requiring him to attend the social education section of the Bureau:
“To report and to declare your intention of drawing a clear line between yourself and Falun Gong and your situation or your ideological reform, in case you fail to comply with it, you will be regarded as Falun Gong members who refuse to repentant, subject to punishment.”
The applicant did not attend the PSB as requested because he had left the country. The applicant did claim that he was picked up by the PSB a second time but the Tribunal did not accept that this incident occurred.
The Tribunal came to the conclusion that the applicant did not have a well founded fear of persecution because it did not accept that he was a leader of the movement and found that on the country information available only those persons were of sufficient interest to the authorities to warrant a finding that they might be the subject of persecution. The Tribunal cited the ease with which the applicant was able to leave the country and the fact that he remained fully employed almost until the day he left as evidence in favour of its view that he was of no adverse interest to the PRC authorities. At [CB 92] the Tribunal states:
“Independent country research indicates that any FG practitioner can practice his or her beliefs in private. There is neither a need nor a requirement that one must display one’s belief publicly or be involved in FG in any way other than that required by private custom. On this information there is nothing prohibiting the applicant from returning to China and practising his beliefs on a private basis. Consistent with independent country research, in such an eventuality the applicant would be of no adverse interest to the authorities.
Where independent country research conflicts with that of the applicant the Tribunal prefers that of independent country research.
Based on the totality of the evidence before it the Tribunal finds that there is no basis for the applicant’s claim that he has a well founded fear of persecution because he is a FG leader (or a practitioner) if he returns to China now or in the foreseeable future.”
The written submissions filed by the applicant on 23 July 2003 appear to encapsulate those matters which were also raised in the written submissions produced at the hearing. I will therefore deal with them as constituting the applicant’s case. The first matter raised by the applicant is that the Tribunal did not accept that he was detained a second time in May 2001. At [CB 90] the Tribunal says:
“He also claimed he was picked up by PSB because of his activities involving his FG contact with other people.”
At [T16] the applicant said:
“On 4 May the local people told them that I was involved in Falun Gong so they knew a little bit more about me so that’s why I was called to the Bureau to be questioned again and they asked me questions.”
The applicant goes on to state that the RRT made no reference to the document found at [CB 38]. It is true that document is not referred to in the reasons but it was discussed with the applicant. At [T12] the Tribunal says:
“I don’t think that it is genuine, it is just on an A4 size piece of paper so I am not going to take that as being genuine.”
There is no duty on the Tribunal to refer to every item of evidence said to support a claim: Muralidharan v Minister for Immigration (1996) 62 FCR 402 at 414 per Sackville J; MIEA v Guo (1997) 191 CLR 559 at 593 per Kirby J; MIMA v Yusuf (2001) 206 CLR 323 at 67-68. In this case the Tribunal considered the available evidence advanced by the applicant and came to the conclusion that it did not accept it. I am unable to find any jurisdictional error in the conclusions of the Tribunal in this matter.
The second submission relates to the fact that the Tribunal accepted that the applicant was a Falun Gong practitioner but not a leader and complains that the Tribunal made no reference to the document found at [CB 36]. The Tribunal’s reasons for coming to this conclusion was set out in the middle paragraph at [CB 91]. The reasoning is strongly reliant upon the applicant's employment position. There was evidence in the Tribunal’s possession which would entitle it to come to this conclusion. The conclusion may not be one with which the applicant would agree, it may even be wrong but that does not make it a jurisdictional error. I accept that the document referred to by the applicant is not specifically mentioned in the grounds and reasons but

at [CB 91] the Tribunal does say:
“As already indicated above the Tribunal also accepts that the applicant could have been questioned by the authorities on one occasion.”
It is not difficult to infer that the one occasion was the one evidenced by the document.
The third submission argues that the Tribunal made no specific finding about the past participation of the applicant in Falun Gong. But its real point is that the Tribunal made no specific finding whether the applicant would continue to practice with others and spread the message as he asserted. Mr Reilly for the Minister submits that this is not a fair reading of the Tribunal’s reasons as required by MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. He says that the Tribunal plainly deals with his claim, to the extent that it is relevant, when it found that the applicant was an ordinary FG practitioner rather than an organiser [CB 91]. I would respectfully suggest that both parties have missed the point. Since WABR v Minister for Immigration [2002] FCAFC 124 the question is no longer what will the applicant do if he goes back but what could he reasonably be expected to do bearing in mind the nature of the proscribed activity and his previous involvement in it.
Thus the convention could protect against the refoulment of a Catholic priest to the Mexico of the 1920s and 30s but would not require a country to grant protection to an ordinary Catholic who was able to return there and continue in the faith by adopting a reasonable measure of discretion. The Tribunal came to the view, based upon the country information, that an ordinary member of Falun Gong (as it found the applicant to be) could maintain his adherence to that organisation’s philosophy in private without risking persecution. That conclusion cannot be attacked as a jurisdictional error.
The fourth matter raised by the applicant relates to a debate about the date upon which the Falun Gong organisation was banned in China. The Tribunal clearly gave this matter no weight [CB 90] and an argument relating to it cannot found jurisdictional error.
The fifth matter raised by the applicant relates to the questioning of the applicant. This and the sixth matter are complaints about the conduct of the hearing. It is not enough to point out areas in a transcript that would contribute to the muddled reasoning or illogical findings of the Tribunal. Faulty logic in fact finding does not constitute jurisdictional error: NAMM v Minister for Immigration [2003] FCAFC 32 at [46] and it is not enough to just point out a wrong conclusion on the facts because there is no error of law in making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. What has to be shown from the complaints made by this applicant would be an allegation of lack of procedural fairness. This has not been made in terms and the type of investigation which the applicant is requesting that the court undertake is to my mind the very sort of examination which would require an over-zealous scrutiny of the Tribunal’s reasons with an eye too keenly attuned to the perception of error: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. This type of examination was held inappropriate by the High Court in Re Minister for Immigration; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration [2003] HCA 30 and by the Full Bench in Minister for Immigration v NAOS [2003] FCAFC 142.
The next complaint made by the applicant relates to the paragraph found at the top of [CB 91]. This paragraph relates to the Tribunal’s concern at the applicant’s ability to obtain an Australian visa. It is possible from a reading of the transcript, country information and the reasons for decision to come to the conclusion that there were communication problems between the Tribunal and the applicant. At [CB 13] the Tribunal is explaining why it did not believe that the applicant was a leader in the Falun Gong movement through the applicant’s ability to leave the country. The Tribunal uses country information to indicate that there are a number of procedures, which an applicant would have to go through before obtaining a visa. These include applying to the PSB, providing forms and documents from one’s work unit and evidence of sufficient funds. The applicant would submit that this was not the case because these things were required for a passport, which the applicant already had. The applicant argues that a visa is something in the control of the Australian authorities, not the Chinese authorities. These matters were referred to at [CB 86] and would appear to refer both to a passport and an exit permit. If the Tribunal had been completely accurate it may well have referred to that last document rather than the “visa” but it seems to me that put at its highest this whole issue involves a possible error of fact which is clearly not a jurisdictional error: Abebe v The Commonwealth (1999) 197 CLR 510 at 137.
Other arguments made at paragraphs 8 and 9 of the applicant’s written submissions seem to me to be canvassing the merits of the applicant’s claim which is not a matter that the court is capable of reviewing.
Finally, at paragraph 10 of the submissions the applicant makes four points:
a)“The RRT has asked the wrong question – whether the applicant can practice Falun Gong in China without being persecuted rather than will the applicant be persecuted if he practices Falun Gong on his return to China.”
I do not accept that this has occurred. I think the Tribunal has asked the question whether the applicant can practice Falun Gong in China without being persecuted (if he practices it in a discreet manner). This is the appropriate question and it was answered in the affirmative.
b)“The RRT failed to make a finding on what would be the likely future conduct of the applicant if he returned to China i.e. would he, as a matter of fact, only practice Falun Gong in private.”
For the reasons given above I do not think this is a relevant question to have asked. The Tribunal has found that the applicant was not a leader in the Falun Gong movement. Whilst it might be expected that a leader would continue his leadership activities and might thus be persecuted, the same would not be expected of a person whose position in the movement was as found by the Tribunal in the case of this applicant.
c)“This is a case where the question is whether the restriction on the activity of the social (not religious) group was/is persecutory in the sense that it would require the member of the group to retreat from any of the identifying features of the group to which he belongs. See WABR v Minister for Immigration [2002] FCAFC 124.”
The Tribunal has found in its reasons that private practice is consistent with Falun Gong teaching and therefore there would be no retreat from any of the identifying features of the group. To that extent there is no relevance in the findings of Merkel J in Wang v Minister for Immigration (2000) 205 FCR 548 at [97 and 98] which the applicant relied on in his original submissions.
I am not convinced that this Tribunal has fallen into jurisdictional error in the manner in which it came to its conclusions in this case. I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: