SZFMB v Minister for Immigration

[2006] FMCA 1141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1141

MIGRATION – RRT decision – Chinese person claiming persecution for Falun Gong activities – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 424A(3)(b), 425A(3), 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
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZFIH v Minister for Immigration & Anor (2005) 196 FLR 126, [2005] FMCA 1847

Applicant: SZFMB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG98 of 2005

Judgment of: Smith FM

Hearing date: 31 July 2006

Delivered at: Sydney

Delivered on: 31 July 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms S McNaughton

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,125.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG98 of 2005

SZFMB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 13 January 2005 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 25 November 2004 and handed down on 17 December 2004.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The Court’s jurisdiction under s.483A is the same as the Federal Court’s 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 cannot set aside the Tribunal decision and send the matter back to the Tribunal 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.

4. The applicant arrived in Australia in July 2004, and on 27 July 2004 he applied for a protection visa.  His application explained why he sought protection in Australia against return to his country of nationality, the People’s Republic of China.  In a brief typed insertion, he said: 

   I became a “Falungong” practitioner in 1997, I worked as a self‑employer, I therefore had more time for “Falungong”.  I spent a lot of time in practicing “Falungong” and in organizing activities for “Falungong”.  I introduced “Falungong” to my employees, my friends and relatives.  I became a head at our branch.  In 1999 when Chinese government started to crack down “Falungong”, local police came to search our home and I was detained for 4 days.  During these three days, I was questioned and interrogated for other members and their activities.  I became a victim of another political movement organized by the Chinese government.  Four days later, I was released, however, I had to report to the local police every week.  I realized that local police was supervising me and I lost freedom in China.  I could not enjoy basic human rights and freedom of religion in China.  I wanted to leave China for my belief and freedom.  As I got my passport in 2001, I did not have any problem for leave China in July 2004, through the help of my friend, I finally got my visa to come to Australia for protection.  As there is no freedom of religion and democracy in China, I don’t think I can be totally free from being detained and being persecuted.  I will be persecuted under the political system of the Chinese Communist Party.  I hope that Australian government can kindly consider my application for a protection visa favorably. 

5. The application form did not disclose any previous travel outside China, and contained only the first page of his passport showing a date of issue in September 2001 and expiring in September 2006.

6. A delegate refused the application on 3 August 2004, and the applicant lodged an application for review on 8 September 2004.  As with his protection visa application, no agent was appointed.  His review application repeated his claim to have been detained for four days, and added: 

   I was tormented both physically and mentally.  After I was released, I had to report to local police periodically and lost basic human rights and freedom.  I realized that local police were supervising me.  I had to leave China so as to ask for protection from Australia. 

   No further details were given to the Tribunal, and no supporting material was ever presented. 

7. The applicant attended a hearing on 24 November 2004. The time of the hearing on that day was moved from 9.30 am to 11.30am by a letter sent to the applicant dated 12 November 2004. There is no evidence before me that this rescheduling of the hearing did not receive the consent or acquiescence of the applicant. It is probable that it did, and I am not satisfied that any jurisdictional error arises from the absence of the full period of notification of the rescheduling pursuant to s.425A(3) (see my decision in SZFIH v Minister for Immigration & Anor (2005) 196 FLR 126, [2005] FMCA 1847, and compare Bennett J in SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78).

8. The invitation to the applicant requested that he bring his passport to the hearing.  It appears that he did bring a passport issued on 8 September 2004, but not the earlier passport.  It also appears that his travel undertaken upon his earlier passport was a matter discussed extensively with the applicant at the hearing.  The Tribunal briefly referred to this discussion in its statement of reasons: 

   The Applicant produced a new passport at the hearing issued on 8 September 2004 in his name with his photograph and with his date of birth which was different to that he had provided with his protection visa application.  He explained he had lost his earlier passport in Campsie.  Asked if he had ever been overseas, the Applicant claimed in September 2001 he went as a tourist for 13 days to Thailand, Macao and Hong Kong. 

9. In the absence of a transcript, it is not possible for me to make findings as to the extent to which the contents of the applicant’s first passport, including when it was issued, was a matter upon which the applicant “gave” information to the Tribunal at the hearing for the purposes of s.424A(3)(b). I shall return to this issue further below.

10. The Tribunal asked the applicant various questions concerning his practice of Falun Gong in China.  Ultimately, the applicant told the Tribunal that “he is the leader of a small group in a small area” and did not claim to be a “leader at the higher level”.  The Tribunal questioned the applicant concerning his claimed detention for four days in November 1999.  It also referred to questioning the applicant concerning his understanding of whether Falun Gong was a “religion”: 

    The Tribunal referred to his claim that he “became a victim of another political movement organised by the Chinese government” and asked him about this claim and he replied for freedom of religion.  Asked what he meant by this, he replied in China Falun Gong is not allowed. 

    The Tribunal asked the Applicant for more details about what he meant by wanting freedom of religion and said that independent country information states that Falun Gong is not religious, it is not a cult or sect, or even a religion: there is no organisation to join and no priests and churches or rituals and worship services, and asked him to tell it about this.  The Applicant claimed that Master Li started the Falun Gong religion.  He also claimed that when practicing Falun Gong, you use your mind focusing on truthfulness, benevolence and forbearance, and you don’t need to worship. 

11. The Tribunal put various matters to the applicant including the significance of his 2001 travel: 

    The Tribunal put to the Applicant that he claimed he led a small Falun Gong group but left China for a few weeks in September 2001 and returned without any difficulty; he had no further problems, and then was able to leave China again without any difficulties in July 2004.  The Tribunal put to the Applicant that from this it deduced that he was of no interest to the Chinese authorities, but he responded that there were too many Falun Gong practitioners and the government could not manage them all. 

12. The Tribunal also referred to asking the applicant if he had been practising Falun Gong “since he arrived in Australia”.  It said that the applicant said “not now”.  Asked the same question again, the applicant replied “he didn’t know where they are” to go and practice. 

13. Under the heading “Findings and Reasons”, the Tribunal referred to the applicant’s claims as “very vague and general” and referred to the absence of evidence to support them.  As to his claimed connection with Falun Gong, the Tribunal made the following findings:  

    While the Applicant does not provide any evidence to support his claims, the Tribunal is willing to give him the benefit of the doubt and accept that he has been involved in a limited way with Falun Gong in the past.  It is also willing to accept that he helped organise small group practices of up to some 12 people from his residential neighbourhood and they practiced in a home but it does not accept that in any accepted sense he was a leader of the group or could more widely be regarded as head of the area with organisational responsibilities.  Indeed, the Tribunal accepts information on the official website that was also put to the Applicant in general terms at the hearing that Falun Gong is non‑commercial, non‑political and non‑religious (“Background on Falun Dafa”, 1999, Bkgrnd_Info.html) and in a recent publication Danny Schechter observes that Falungong stresses that it is “not a cult, or a sect, or even a religion.  There is no organisation to join.  There are no priests, temples, or churches.  There are no rituals or worship services.” (Schechter, D. 2000, “Falun Gong’s challenge to China.  Spiritual practice or ‘evil cult’?”, Akashic Books, New York, Ch.4, p.32) and is satisfied that if he was a dedicated Falun Gong practitioner he would not have made these references to Falun Gong being a religion. 

14. The Tribunal then addressed the applicant’s claim that he was detained in 1999.  It is unclear whether the Tribunal accepted that claim or not, however, it addressed his subsequent conduct in China and in Australia to assess whether there was a real chance that he would face persecution if he returned.  As I understand its reasoning about this, it appears to have assumed that he may have had a brief period of detention in 1999, but formed an adverse view of his current commitment to and interest in Falun Gong.  It gave significance to his lack of interest in finding out where to practice during the four months that the applicant had been in Australia: 

    In short, the Tribunal is satisfied that the Applicant has not only not practiced Falun Gong in the 4 months that he has been in Australia where it is not banned or illegal to practice it, but also that he has not made any efforts to join up with other Falun Gong practitioners since his arrival in Australia, and is satisfied that this demonstrates his lack dedication, commitment and even on‑going interest in Falun Gong.  It follows that the Tribunal does not accept that his disinterest in Falun Gong, and any unwillingness he may in the future have in practicing it if he returned to China, is because he was not allowed to practice Falun Gong in the past and the reason for his not practicing it is because the Chinese authorities threatened him and forced him to stop practicing Falun. 

15. The Tribunal then drew a series of adverse findings in relation to the applicant’s obtaining and travelling on a passport in September 2001, and his returning to China: 

    Importantly, the Tribunal also accepts that even though the Applicant lived at the same address from 1969 until July 2004 when he came to Australia, he never claims he was again harassed, had his house searched again, lost his job, or was arrested or detained in the over four and a half years he remained in China because he was a Falun Gong practitioner.  Nor does he claim that the local police or the PSB have been harassing his wife and wider family for any reason whatsoever (including because of the Applicant’s past involvement in Falun Gong) since his departure for Australia.  Moreover, the Tribunal accepts that the Applicant was issued with a PRC passport on 4 September 2001 without any difficulty.  And as was put to the Applicant by the Tribunal at the hearing, the Tribunal accepts that he was able to leave China in September 2001 for 13 days without encountering any difficulty whatsoever; was then able to return to China without any difficulty; and was then able to leave China for a second time on this passport issued in his name with his photograph and date of birth shown on it, again without claiming he had any difficulty.  The Tribunal is satisfied that if the Applicant was of any interest to the PRC authorities in [location] where he lived that the Ministry of Foreign Affairs in [location] would not have issued him with a Chinese passport less than two years after he claims he was detained, let alone being allowed to legally leave China on two occasions.  When the Tribunal put to the Applicant at the hearing that from this it deduced that he was of no interest to the Chinese authorities, he responded that there were too many Falun Gong practitioners and the government could not manage them all.  However, while accepting that there are indeed a large number of Falun Gong practitioners in China, given all the above the Tribunal has not been able to satisfy itself that there is a real chance that the Applicant would be subject to serious harm for a Convention reason on this basis if he returned to China, now or in the reasonably foreseeable future.  Indeed, the Tribunal is also satisfied that having left China in September 2001 the Applicant did not take the opportunity to seek refugee status or claim asylum in another country.  Indeed, the Tribunal accepts that the Applicant voluntarily chose to return to China, and the Tribunal is satisfied that if he had been subjected to serious harm for a Convention reason while in detention for 4 days in late 1999, and had a well‑founded fear of again experiencing serious harm because he was a Falun Gong practitioner, he would not have been willing to return to China in 2001. 

16. The Tribunal then referred to country information suggesting that “ordinary followers” of Falun Gong might not receive “a close interest” of the Chinese authorities, and arrived at a finding based on all its previous findings:  

    Accordingly, based on the claims made by the Applicant, its earlier findings and this independent country information, the Tribunal is satisfied that there is not a real chance that because of his past limited involvement in Falun Gong that the authorities will have any interest in him if he returns to China now or in the foreseeable future or that he will be subjected to serious harm amounting to persecution for a Convention reason on this basis in the unlikely event that he should again practice Falun Gong in his home as he has in the past. 

17. It might appear that a minor part of the reasoning leading to this conclusion was the Tribunal’s inference that the applicant would not have been issued with a Chinese passport in 2001 if he was “of any interest to the PRC authorities” in the region where he lived at that time. 

18. I canvassed with counsel for the Minister whether information upon which that finding was based was “prior information” taken from the DIMIA file which was not given to the Tribunal by the applicant at the hearing, so as to give rise to a duty under s.424A(1). However, as I have indicated above, I am not satisfied that this information was not also given by the applicant at the hearing (c.f. Kenny J in SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 at [35]‑[36], and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2 at [82], [173], [264]). I therefore do not think that a breach of the Tribunal’s duties under that section can be found.

19. The Tribunal’s reasons then addressed further aspects of the applicant’s claims.  It addressed the applicant’s fears that he would be persecuted as a result of having lodged a protection visa application in Australia, and said that it was satisfied that: 

    … in the most unlikely event the Chinese authorities became aware that he had lodged a protection visa application during his time in Australia that he will [not] be subjected to serious harm amounting to persecution for a Convention reason on this basis. 

    I think there is an obvious negative missing in this finding. 

20. The Tribunal also addressed whether the applicant would be at risk because of his general political opinions which objected to the generalised system of human rights abuse and political and religious suppression in China.  It concluded:  

    … the Tribunal is satisfied that he has not experienced any difficulty in the past because of his political opinions, religion or imputed anti‑government views – or that there is a real chance he would experience serious harm amounting to persecution for a Convention reason on these or any other basis now or in the foreseeable future if he were to return to China. 

21. There are parts of the Tribunal’s reasoning which are poorly expressed, but in my opinion the Tribunal has addressed the applicant’s claims, and has identified rational reasons for finding that it was not satisfied that he satisfied the criterion for a protection visa.  I consider that its reasoning was open to it on the material before it, and have been unable to identify jurisdictional error affecting its decision. 

22. The applicant’s original application to this Court had two grounds.  The first ground alleged that the Tribunal’s reasoning revealed “his bias towards me”.  However, I have not been able to make such a finding based on the Tribunal’s reasoning.  I do not think that a lay bystander might form the relevant apprehension based upon reading the Tribunal’s decision (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28).

23. The second ground disputes a factual conclusion drawn by the Tribunal, but does not appear to raise a ground of jurisdictional error that I can discern. 

24. The applicant’s amended application contains the following grounds: 

    1.The Tribunal refused to consider any of the claims that I put forward at the hearing. 

    2.The Tribunal failed to provide any evidence to support its decision. 

    3.The Tribunal did not observe Migration Act 1958 properly to making the decision.

    4.The Tribunal did not make the decision based upon a rational or logical foundation. 

    5.The Tribunal failed to exercise its jurisdiction as it failed to have any finding in weather I would be persecuted if I attempted to practice Falungong activities in China. 

    6.The Tribunal questioned about the genuiness of my being a Falungong member because I had expressed to him that “Falun Gong” is religion, and the Tribunal referred to the wrong independent information, believing that “Falun Gong” is not religion, the Tribunal therefore questioned about my credibility and began to have bias against me. 

1. I dealt with Grounds 1, 2, 3, 4 and 5 in my conclusions above, to the extent that I am able to give them any arguable substance. 

2. Ground 6 seeks to give further substance to the allegation of bias by criticising the Tribunal’s reasoning which drew an adverse inference from the applicant’s reference to Falun Gong as a “religion” (see [10] and [13] above).  I accept that a Tribunal might at times be able to view Falun Gong broadly as being a religion, however, there was country information before the present Tribunal which it cites, including from a Falun Gong website, which made the point that Falun Gong lacks most of the characteristics of a religion.  I am not persuaded that this element of the Tribunal’s reasoning was not open to it, and I do not consider that the point made by the Tribunal might give rise to a reasonable apprehension of bias. 

3. An un‑numbered last contention made in the amended application appears to argue that the Tribunal was in breach of s.424A(1) by failing to give the applicant an opportunity to comment in writing on the general country information relied upon by the Tribunal. However, it is now clear that this information was exempt from that requirement (see s.424A(3)(a) and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).

4. For the above reasons, I have not been able to find jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  17 August 2006