SZASI v Minister for Immigration
[2004] FMCA 339
•20 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZASI v MINISTER FOR IMMIGRATION | [2004] FMCA 339 |
| MIGRATION – Review of RRT decision – where applicant claims to be a member of the Falun Gong with a well-founded fear of persecution – where applicant did not attend RRT hearing – whether fact that applicant left country of nationality legally is relevant to Tribunal reaching required state of satisfaction as to protection obligations – whether applicant was not given opportunity to appear before Tribunal thereby denied procedural fairness. |
NASH v MIMIA [2004] FCAFC 4
NAOL v MIMIA [2003] FCAFC 243
NAKP v MIMIA [2003] FCA 1316
S395/2002 & S396/2002 v MIMA [2003] 203 ALR 112
NAEB v MIMIA [2004] FCAFC 79
| Applicant: | SZASI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 994 of 2003 |
| Delivered on: | 20 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
The applicant to pay the respondent's costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 994 of 2003
| SZASI |
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 1 February 2002. On the same day he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 16 April 2002 a delegate of the Minister refused to grant a protection visa and on 13 May 2002 the applicant applied to the Refugee Review Tribunal for review of that decision. The decision of the delegate had been given after sending to the applicant a letter asking him to comment upon certain matters which the Department would take into account in considering his application.
The Tribunal wrote to the applicant on 11 July 2002 advising him that a member had looked at all the information relating to his application but was unable to make a decision in his favour on that information alone. That letter provided a date for a hearing before the Tribunal on 2 September 2002, some two months after the letter was sent. A letter was sent to the applicant's migration agent who had been nominated as an authorised recipient [CB 41] and to an address which the applicant had given as his home address [CB 40]. The applicant did not attend the hearing.
The Tribunal proceeded in his absence, an action the Tribunal is authorised to take pursuant to s.426A(1) of the Migration Act, it having complied with s.425 of the Act pursuant to the provisions of ss. 425A(2) and 441A(4). The Tribunal reached its decision on
2 September 2002 and sent a copy to the applicant care of his migration agent and to his address. It is interesting to note that the applicant must eventually have received this decision because he was able on 4 June 2003 (considerably out of time) to make an application to this court.
The applicant's claim to have a well founded fear of persecution for the convention reasons of political opinion/religion/membership of a particular social group arise out of his claim that he is a member of the Falun Gong. He claimed that he commenced this practice in 1998 but from the beginning of July 1999 he experienced difficulties due to police interference and harassment. After an incident in August 1999 when the adherents with whom he was practising were dispersed by police he claimed that he could only practice Falun Gong in his own home. He said that the situation became harder for him by the end of the year 2000. He was still practising from home but he was suffering from psychological pressure.
The applicant obtained a passport in August 2000 and was granted an Australian visa on 30 September 2001. He left Shanghai legally on 31 January 2002.
The Tribunal, when considering the claims of the applicant, utilised the record which noted that the public or group activities were not fundamental to the practice of Falun Gong and that only certain types of Falun Gong adherents were of particular interest to the authorities. The Tribunal noted that the applicant had not responded to the delegate's letter of 14 March requesting further information.
The Tribunal considered certain country information relating to Falun Gong and then the situation in relation to passports and exit from China. It is appropriate at this stage to say that I have some very severe doubts as to whether any of that is relevant. This case, like many others which I have seen, claims a well founded fear of persecution not associated necessarily with a person being in trouble with the authorities.
It is perfectly reasonable to expect that someone claiming to be a Falun Gong adherent may not be the subject of police attention at the time he leaves his country of origin but has a genuine and well-founded fear that given the passage of time he would be discovered to have been such an adherent and would be likely to suffer persecution on his return. The fact that he left the country legally and was not a person on the wanted list has absolutely nothing to do with this fear. It cannot assist the Tribunal one iota in reaching or not reaching the state of satisfaction required by s.36 Migration Act.
The Tribunal came to the conclusion that this applicant had never claimed to be anything more than a Falun Gong practitioner who exercised privately either at his home or at the home of another person:
“If the applicant returned to China and continued as an FG practitioner, I see no reason to suppose that he would behave other than in the same low key and discreet manner as before. I conclude that he would thus continue to be of no adverse interest to the Chinese authorities.”
This conclusion depends heavily upon the finding of fact made at
[CB 59] that the police interference and harassment alleged by the applicant was not established. However, it is a finding the Tribunal was entitled to make on what evidence there was available and given the fact that the applicant had not appeared nor answered the questions raised by the Delegate.
The Tribunal also concluded that the applicant had exaggerated the situation and his state of mind after July 1999. The Tribunal based this finding on the fact that the applicant did not seek to obtain a passport until August 2000, some 13 months after he claimed that his situation began to become serious. The Tribunal also makes some comments about the time at which the applicant left the country, but there is no evidence about how long it might have taken him to obtain a visa to visit Australia.
The applicant claimed that he was not provided with procedural fairness because he was not given an opportunity to appear before the Tribunal. That claim must be rejected as the necessary requirements of the Migration Act were complied with by the Tribunal and it is clear from cases such as NASH v MIMIA [2004] FCAFC 44 at [19], that this would not found a claim that the Tribunal fell into jurisdictional error.
The applicant also made a number of complaints to me about what he considered to be the attitude of the DIMIA representatives with whom he came in contact. This hearing is to determine whether or not there was error in the decision of the Tribunal, not whether there was error in the decision of the delegate.
The applicant did make a complaint that the finding of the Tribunal was rushed. It is correct to say that the Tribunal came to its conclusion on the same day that the matter was due to be heard, but that is not unreasonable given that the applicant did not attend and there is clear authority that there is no jurisdictional error in coming to a decision speedily: NAOL v MIMIA [2003] FCAFC 243; NAKP v MIMIA [2003] FCA 1316
There is, however, one matter which deserves to be considered on the applicant's part, that is whether the finding of the Tribunal concerning his ability to practise Falun Gong in private falls foul of the reasoning of the majority in S395/2002 & S396/2002 v MIMA [2003] 203 ALR 112.
Mr Johnson submits that the quotation from the Tribunal's decision which I have set out previously did not involve any error of the kind discussed in those cases and referred in his written submissions to NAEB v MIMIA [2004] FCAFC 79. He argues that there would be no change of practice required of the applicant in this case:
“The Tribunal's findings were that the applicant had never been more than an ordinary practitioner. To the extent that the Tribunal envisaged that, when he returned to China, he would practise discreetly as he had before, this would not occur because of any threat of persecution but rather because he had no greater commitment. Thus, the need to practise discreetly would not, for this applicant at least, be persecution and, more significantly perhaps, his practising discreetly would not be for a Convention reason.”
Mr Johnson argues that the Tribunal was not requiring the applicant to practise discreetly, it was simply accepting that this is all that the applicant would do. He says there is no jurisdictional error in that approach.
I think that argument can be accepted on the basis that the Tribunal discounted the applicant's evidence about his previous activity prior to 1999 and the incident that he referred to. As I have found that the Tribunal was entitled to do this, it would follow that the decision does not exhibit the error identified by the majority judgment.
I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 31 May 2004
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