SZCDQ v Minister for Immigration - [2006] FMCA 287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCDQ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 287

MIGRATION – RRT decision – Chinese Falun Gong practitioner – Tribunal questioning about practice and teaching of Falun Gong – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(1)(b), 424A(1), 424A(3)(a), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572

Applicant:

SZCDQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2727 of 2003

Judgment of:

Smith FM

Hearing date:

15 February 2006

Delivered at:

Sydney

Delivered on:

15 February 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2727 of 2003

SZCDQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 11 December 2003 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 October 2003 and handed down on 13 November 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The applicant arrived in Australia as a visitor in August 2002. On 18 September 2002 he applied for a protection visa assisted by an agent, Mr Xu. His application attached a statement containing his claims upon which he sought protection in Australia from return to his country of nationality, The People’s Republic of China.
The applicant said that, after he was unfairly retrenched from his employment in 1998, he became depressed and found help by following the practice of Falun Dafa. This led to persecution which was referred to only in his last two paragraphs:
After learn Falun Dafa, I felt I am full of spirit. My health was much better than the period I lost myself. I knew while I worked for Dafa, Dafa benefit me and bless me. But I felt it would be dangerous to stay in my hometown. Many policemen came to my home frequently; they threaten me. I did not worry about myself, I was afraid they would do some violent to my family. I had to leave because I know if the government like they would do any thing they want, it is really terrible.
I come to Australia for just a few days, I love this land when I first load there. A free wind makes me happy than any time I experienced. I want beg the Australia could give me one more chance to stay here. Thank you!
A delegate refused the application on 4 October 2002. The delegate referred to country information suggesting that people who had not played a leadership or an organisational role in Falun Gong, and who had left China legally and without difficulty, were unlikely to suffer restrictions amounting to persecution.
The applicant appealed to the Refugee Review Tribunal on 11 November 2002, assisted by Mr Xu. Attached to the application was a short statement referring to his claims “in my previous application”, but making no additional claims in relation to persecution, and giving no further details about the claim that “many policemen came to my home frequently, they threatened me”.
The applicant employed a new migration agent, Pricilla Yu, and presented a further statement to the Tribunal. This claimed that the applicant joined a Falun Gong training centre in 1997 and practised there “almost every morning, and sometimes even in the evening”. It claimed:
In May 1998, I began to organize a new training centre together with some of friends. The new training centre was in a small park near to my home. We spread Falun Dafa on every morning, distributed books written by Master Hong Zhi LI, recruited new practitioners and provided them training. In the mean time, we invited those experienced Falun Gong practitioners to give us special lecture in order to assist us to learn more and more about Falun Dafa. The new training centre was quickly developed from only 12 members to 60‑70 people in the end.
The statement claimed that, following the July 1999 prohibition of Falun Gong by the Chinese Government, the applicant suffered various acts of persecution, including being “forced to join a political class”, in which: “I was forced to study official documents, to write my confession, and also to accept interrogation. During the interrogation, I was subjected to mental and physical mistreatment”. He claimed that he had subsequently been kept under surveillance by the local police and required to join political party classes. He said: “owing to my special background, my wife and I began to suffer from unemployment once again”.
The applicant attended a hearing conducted by the Tribunal on 23 September 2003, and was given the tapes of that hearing. However, no evidence has been placed before me as to the questioning by the Tribunal. The only evidence I have is the Tribunal’s description in its decision.
The Tribunal referred to the applicant’s evidence about his Falun Gong activities:
During this period of casual work, some Falun Gong acquaintances introduced him to ‘cultivation’ practices which he found improved his state of mind, and he occasionally participated in physical exercises. During 1998, with more time on hand, he began practising daily, including in other Chinese cities during work trips, and occasionally participating in discussion groups. The applicant stated that he ‘attended’ other events. Despite being given the opportunity to do so, he did not allude to more active responsibilities in relation to the new training centre, such as the distribution of materials or recruitment of new adherents, as claimed in the statutory declaration of 18 September 2003. Following his dismissal, however, he maintained contacts with some former colleagues, and introduced some of those with financial or personal problems to Falun Gong practices.
The applicant was adamant that action against Falun Gong began in [his city] in May 1999, contrary to independent advice and the statement in the applicant’s statutory declaration that the government crackdown was decreed only in July 1999. He claimed that he was initially detained in August 1999, for one month, during which he was forced to write a retraction, and was subject to beatings and humiliation. He did not receive medical attention during this period. He was detained on several more occasions during 1999, for about two weeks at a time. Asked by the Tribunal to explain why these claimed incidents were not referred to in his protection visa application or his application for review, while other details such as police visits and his fear for his family’s welfare were, the applicant stated that his recollection of the period was poor. He also attributed the omission of reference to his detention to his migration agent’s hasty and unchecked work.
From late 1999 to his departure for Australia in mid‑2002, the applicant claimed he was subject to police surveillance, and humiliation in the eyes of his family and neighbours. He claimed to have felt suicidal on occasions. Although he managed to secure some odd jobs through Falun Gong friends, he was usually dismissed within a few days when employers found out about his previous detention and association with Falun Gong. The applicant confirmed that he had practiced Falun Gong privately after 1999. This consisted of reading some of the texts, and doing some exercises at home. [He] continued to have difficulties finding and keeping work, and his wife also became unemployed due, he claimed, to his links with Falun Gong – but he was not subject to any further specific action from authorities.
The applicant claimed that a friend working for the PSB had secured his clearance for travel, and that his airfare was funded by friends and relatives. In response to the Tribunal’s observation that he had indicated on his protection visa application that he had not had difficulties departing China, he pointed out that this was because others had managed to make arrangements on his behalf. He experienced no problems departing China as a tourist.
The applicant stated that he had joined Falun Gong shortly after his arrival in Australia, and practiced regularly on Sunday mornings at Darling Harbour. He indicated that he had also participated in activities in Melbourne and Canberra.
The applicant described some basic tenets of Falun Gong, identifying its leader, the name of its moral code and the location of the ‘falun’ within the body. He described the distinction between Falun Gong and other forms of Qi Gong as being its focus on cultivation of the person and his soul, in addition to exercises. However, most of these were answered with hesitation and some prompting from the Tribunal. The applicant failed to demonstrate knowledge of other basic aspects of Falun Gong. He did not know the number of exercises, or the names or accompanying verses of any of them, and declined to demonstrate how they are performed. With respect to the performance of the exercises, the applicant stated that Falun Gong was primarily a matter of ‘cultivating the mind’, and that it was inappropriate to perform the exercises other than in a ‘quiet place’. Despite claims to have studied key Falun Gong texts, he could not name the primary text or its introductory passage, and was not able to describe the physical appearance of the emblem which represents the falun.
The Tribunal also indicated that it had raised generally with the applicant “materials relating to Falun Gong in the PRC, including the treatment of practitioners, and exit procedures for PRC nationals”.
The Tribunal then summarised extensively information on those topics, leading it to form the opinion:
In summary, there is general recognition that private practice is not likely to attract the attention of the authorities. Independent advice indicates that the interpretation of Falun Gong requirements and individual practice vary widely; in the majority of cases, restrictions on the right to perform exercises publicly are not likely to be a serious affront to essential beliefs.
Under the heading “Findings and Reasons”, the Tribunal said:
The applicant demonstrated a very limited knowledge of Falun Gong. His inability to demonstrate, either verbally or physically, any Falun Gong exercises leads the Tribunal to conclude that he is not familiar with them. This is inconsistent with his claim to have practiced regularly since 1997, including publicly until 1999, privately until mid‑2002, and again publicly since his arrival in Australia. Given the central importance of the exercises in the practice and teachings of Falun Gong, the Tribunal accordingly finds that the applicant is not a genuine and fully committed Falun Gong practitioner.
The applicant was able to provide some general comments on Falun Gong’s moral code, its approach to ‘cultivation’ and its teachings to support his claims of Falun Gong adherence. However, he could not demonstrate familiarity with the basic text or more detailed aspects of the belief system. The Tribunal concludes from this that the applicant has been introduced to some key aspects of the teachings, most likely in a cursory fashion. This evidence alone does not, however, indicate when or in what circumstances the applicant learned about basic Falun Gong principles. The applicant claimed that he was attracted to Falun Gong in the wake of his unemployment in 1997/1998, and that he found its ‘cultivation’ practices helped his state of mind. Despite the limited evidence before it, the Tribunal accepts that the applicant has maintained some interest in Falun Gong from a self‑improvement, psychological perspective, from 1997/98. The Tribunal also accepts the applicant’s claims that from 1997 to 1999, this included occasional participation in discussion groups, and exchanges with colleagues and others facing financial or other personal problems. The Tribunal accepts that the applicant had friends who helped him find occasional jobs and organise his travel to Australia, but, given the applicant’s limited knowledge of Falun Gong, it is not satisfied that these were part of a network of Falun Gong adherents. The Tribunal finds that the applicant’s involvement in any Falun Gong‑related groups or exchanges was marginal and occasional. The Tribunal accepts the applicant’s evidence that his engagement with Falun Gong, to the extent it occurred, has been in the form of private reading and contemplation.
The Tribunal’s finding which rejected the claimed extent of the applicant’s commitment and practise of Falun Gong, and its limited acceptance of his involvement, provided its essential reason for rejecting various aspects of his claims.
The Tribunal rejected the claim that he had been involved in a leadership role in a training centre, and noted it had not been pursued at the hearing.
The Tribunal concluded that “the applicant is not likely to be regarded as a Falun Gong practitioner by the PRC authorities or the general communities”, notwithstanding his “marginal and occasional” involvement.
In relation to the applicant’s claims to have suffered harm in China, including the visits of the police, detention and mistreatment, the Tribunal said the late raising of the more serious harms “gives rise to doubts as to whether the detentions occurred at all”, and it said it was not satisfied that this occurred in 1999. It was prepared to accept only that the applicant had felt “publicly humiliated” before he came to Australia, but it said that “this alone does not constitute ‘serious harm’ within the meaning of s.91R(1)(b) of the Act”, and that “his loose association with Falun Gong (as opposed to his unemployment or other factors) was [not] a significant and essential reason for any such harm”. The Tribunal thought that he had lost employment for other reasons.
The Tribunal referred to the applicant’s obtaining of a passport and exit permit, and found:
regardless of what might have preceded it, the applicant was not at the time of his departure a person who was of ongoing adverse interest to the Chinese authorities.
The Tribunal referred to the applicant’s claims to have been a regular practitioner in Australia of Falun Gong, but said:
For the reasons mentioned above, the Tribunal does not accept that the applicant’s assertion that he has practiced recently or regularly; it accepts that the applicant has informed himself of the location of Falun Gong activities and that he may have associated himself with some of their events. Such activity is limited and low key, in keeping with the applicant’s claim to focus mainly on private practice. As such, the Tribunal finds that he has not engaged in any Falun Gong activity in Australia which has attracted any official attention by Chinese authorities or which would increase PRC interest in him if he were to return to that country.
The Tribunal’s general conclusions as to the situation which the applicant would face if he returned to China were:
The Tribunal does not accept the applicant’s claim that, if he were to return to China, his Falun Gong practices there would attract attention and leave him vulnerable to surveillance, possible detention and mistreatment, and continued job discrimination because of his Falun Gong practices. The Tribunal finds that, if the applicant were to pursue an interest in Falun Gong, these would consist of the private contemplation, reading and limited exercises which he claims form the core of his current practice. The Tribunal finds the applicant’s statement that it would be ‘meaningless’ if he could not develop and promote Falun Gong to be not credible, given that he has not demonstrated any public promotional work in the past, and given his low general level of engagement with Falun Gong.
The Tribunal therefore concludes that the applicant will not engage in Falun Gong‑related activities which would give rise to a well‑founded fear of persecution. It also finds that, given the limited scope of the applicant’s past involvement with Falun Gong and his narrow interpretation of its requirements, the need for him [to] refrain from conducting certain activities (such as public exercises or the distribution of pamphlets) will have a minimal impact on his personal beliefs, and would not amount to serious harm such as to constitute persecution.
Having considered the various aspects of the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied that the applicant is a committed Falun Gong practitioner, that he has suffered serious harm in the past as a result of being linked with the Falun Gong, or that he has a well–founded fear of persecution within the meaning of the Convention.
I have considered the Tribunal’s reasons which I have described above, and do not consider that it reveals any misapprehension as to the claims that were made by the applicant, nor any error of understanding of the relevant law. I consider the Tribunal’s finding of fact concerning the applicant’s involvement in Falun Gong were open to it on the evidence. I can find no jurisdictional error affecting its decision to affirm the delegate’s decision.
The application filed in this Court on 11 December 2003 criticises the Tribunal’s findings about the applicant’s involvement in Falun Gong, and alleges that there was a denial of natural justice:
PARTICULARS
a)I am a pious Falun gong practitioner, and I have regularly practiced Falun Gong since 1997, including publicly until 1999, privately until mid‑2002, and again publicly since my arrival in Australia.
b)I however do not think that it is fair and reasonable for a pious Falun Gong practitioner like me to demonstrate my knowledge and others in relation to Falun Gong to a person like the presenting member of the Tribunal who is absolutely not a Falun Going practitioner, and especially when such a demonstration must not be conducted directly by my own language and also in a particular environment – being questioned by an officer with totally different cultural background.
c)I do not believe that a person like the presenting member of the Tribunal without any actual experience and demonstrated knowledge of Falun Gong is able to or qualified to judge whether or not I have sound knowledge about Falun Gong, solely and simply based on some papers or pictures which just content limited information about Falun Gong.
d)I do not think that the presenting member of the Tribunal has given any good reasons to the contrary except ill‑founded issue about my knowledge of Falun Gong. As a matter of fact, I believe that a qualified member should understand that the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Particularly, the member should use all the means at his disposal to produce the necessary evidence in support of the application. Unfortunately, I do not think that the presenting member of the Tribunal has done so while he assessed my claims.

The applicant made similar criticisms to me orally today, and maintained that in fact he was a committed Falun Gong practitioner and that all such practitioners would face persecution in China. However, it is not my function to assess the truth of his claims, nor to decide whether the Tribunal arrived at the correct or preferable findings of fact.
I have considered the applicant’s criticisms of the Tribunal’s questioning of the applicant as to his knowledge of Falun Gong. There have been cases where, on judicial review, a Court has concluded that questioning by a Tribunal about knowledge and practices of a religion or quasi‑religious movement revealed unreasonable assumptions by the Tribunal, either as to what levels of knowledge could reasonably be expected or as to the tenets and practices of the movement. This can sometimes provide evidence of jurisdictional error.
However in my opinion, on the evidence before me, the Tribunal’s questioning did not suffer from such problem. On its account, it has questioned the applicant about basic knowledge of Falun Gong practices and theory, and has assessed him against how he responded. I think it was plainly open to the Tribunal to engage in the questioning it appears to have conducted, and to form its conclusions from his responses. In cases like the present, where an applicant presents no corroborative evidence of his claims, such questioning is a permissible and appropriate method of assessment of the truth of the claims.
I accept the points made by the applicant that the Tribunal needs to appreciate the difficulties it may have when making such an assessment, where it is not itself an adherent of the movement, and where it may be viewing reports of the movement through false cultural perspectives. However, I am not persuaded that the present Tribunal fell into those errors.
In short, I am not persuaded that the Tribunal’s hearing miscarried due to its questioning of the applicant about his knowledge of Falun Gong, nor that its decision was vitiated by jurisdictional error from the use it made of his evidence.
The applicant’s amended application repeated the paragraphs from the application which I have addressed above, and added an additional argument. This was that the Tribunal was in breach of its obligation under s.424A(1), by failing to invite the applicant to comment in writing upon the country information documents which it referred to. However, this contention overlooks the exception to the Tribunal’s obligation under s.424A(1), which is found in s.424A(3)(a) in relation to information “not specifically about the applicant”. Authorities since Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 have made it clear that that exception covers such country information as has been used by the Tribunal in this case.
For the above reasons, I do not consider that the grounds raised by the applicant have established jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision under s.474(1) of the Migration Act for which relief is barred from this Court, and I must dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 2 March 2006