SZFRO v Minister for Immigration

[2005] FMCA 949

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFRO v MINISTER FOR IMMIGRATION [2005] FMCA 949

MIGRATION – RRT decision – Chinese policewoman claimed persecution as Falun Gong member – disbelieved by Tribunal – no error found.

Migration Act 1958 (Cth), ss.474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant: SZFRO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 339 of 2005

Judgment of: Smith FM

Hearing date: 23 June 2005

Delivered at: Sydney

Delivered on: 23 June 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms A Nanson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 339 of 2005

SZFRO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under section 483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 10 December 2004 and handed down on 6 January 2005. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to applicant.

2. Section 483A of the Migration Act gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present that jurisdiction is under section 39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the case back unless I am satisfied that the decision was affected by jurisdictional error.

3. I do not have power myself to decide whether the applicant's claims should be believed, nor whether she qualifies for a refugee visa or any other permission to stay in Australia.  Those questions are given to the administrative officers in the Department of Immigration and the Tribunal. 

4. The present applicant arrived in Australia on a business visa in July 2004.  She lodged her application for a protection visa on 1 September 2004.  Her claims for protection were contained in a relatively short typed statement which was a translation from a Chinese statement signed by the applicant.  I think her claims were accurately summarised by the Tribunal in its decision:

   The Applicant is a 22 year old single woman from X town.  She states that she speaks, reads and writes Mandarin.  She states that her occupation prior to her arrival in Australia was that of a police officer.  She lists twelve years of education and states that she attended police school from 1997 until 1999, and that she then worked as a police officer. 

   Attached to her application is a statement of claims at Folio 19 - 20 of the Department file. She states that she worked at the XX Police Office, Outskirts Branch, as an accountant from June 2000.  She states that the head of her police branch was a person by the name of W and that this person asked her if she would marry his retarded son, and that if she did this he would support her.  She stated that this idea was not at all attractive to her, but she was fearful of refusing him as he was the head of her police branch.  She stated as she did refuse him she was found later on that she was accused of being a Falun Gong practitioner and that they found Falun Gong material in her home and she was told that she would be arrested. 

   “I was so angry.  I knew W played the whole thing.  I went to W’s office and asked him why he did such things to me.  I could not believe he uses his point to force me to marry his retarded son.  I told him everything about how I became a Falun Gong practitioner is because I trusted him before.”

   She states that she then attacked W.

   “I stop hitting until W coma.  I ran out of the office.  I was very scared.  At that night several policemen came to my house and tried to seize me, but they found I had been fled.  The next day I was on the Falun Gong arrest order list made by in the local police office.”

   She states that after several months with a relative’s help she changed her name and was granted a business visa to enable her to come to Australia.

5. The delegate refused the claim in a decision made on 8 October 2004. In a statement of reasons given to the applicant, the delegate indicated doubts about the credibility of her claims.  The delegate said:

   I have considered the applicant's claims and reject them as lacking credibility for several reasons.  The applicant's statement contains no information at all about her alleged practice of Falun Gong other than stating that police discovered related material in her house.  However, if I were to accept the applicant's statement at face value, I do not accept that the police interest in apprehending her would be for her practice of Falun Gong.

6. This was because on her own statement the delegate thought she would be wanted for her attack on her senior officer, which would not be a Convention reason.  However, the delegate also said that: “I find the applicant's claims completely far-fetched and lacking in credibility”, and explained his doubts. 

7. At the end of his reasons the delegate made reference to general information concerning Falun Gong:

   The applicant has provided no documentary or other evidence to support her claimed adherence and commitment to Falun Gong.  It is relevant that there is no indication from the material submitted by the applicant that she is a Falun Gong leader or person of influence within the movement. A statement on the Falun Gong Bulletin Board indicates that “genuine Falun Gong practitioners seeking political asylum would obtain proofs through local Falun Gong assistance centers and local Falun Dafa Societies” (B:4).

   Even if I were to accept the applicant is a Falun Gong practitioner as claimed, I do not consider she would be subject to harm or mistreatment amounting to persecution on return to China.  In making this assessment, I give weight to a wide range of country information that Falun Gong can be practiced on an individual level, and practitioners are not required to proselytise or recruit members.  A number of independent sources including those listed at Part B above are of the opinion that ordinary adherent of Falun Gong are unlikely to be in danger of serious mistreatment from the PRC authorities.  Private practice of Falun Gong, without adverse consequences from the PRC authorities, is possible.

   Overall the applicant’s claims to fear persecution by the PRC authorities for her practice of Falun Gong are not credible or supported by independent country evidence.

8. The applicant lodged an application for review by the Refugee Review Tribunal lodged on 25 October 2004.   She did not take the opportunity to put forward more supportive material concerning her claims, but briefly referred back to assertions previously made.  Nor did she subsequently provide further supportive information, although her attention to the need for this was drawn by letters from the Tribunal dated 25 October 2004 and in a letter dated 9 November 2004 inviting her to attend a hearing. 

9. She did attend a hearing on 7 December 2004.  The applicant says she has been given a tape of the hearing, but she has not sought to tender that tape nor a transcript of the hearing.  It is difficult for me to make findings as to what happened.  However, in its reasons the Tribunal summarises the following discussion:

   The Applicant was asked why she considered herself to be a refugee.  The Applicant stated that she had a relative who was in poor health and that sometime around May 2003 a relative introduced her to Falun Gong.  She stated that she started to read about Falun Gong and to watch some of the videos, and that she had told her superior in the police force about her interest and following of Falun Gong.  The Applicant stated that this person had approached her in February 2004 about marrying his disabled son.  The Applicant stated that she did not wish to marry the disabled son and that she refused to do this.  She stated that because of this, her superior organised a police raid on her home and that they found Falun Gong literature at her house, as well as planting some Falun Gong literature there. 

   The Applicant stated that after this she ran away to stay with a distant relative.  The Applicant was asked some more details about when the police raided her house and where she was at this point in time.  The Applicant stated that she was in the street on the way to the post office to pay her telephone bill.  She stated that her parents were at home when the police raided her house.  She stated her parents then rang her to tell her not to come home and from here she fled to a distant relative’s place, where she stayed.   The Applicant stated that prior to going to a distant relative’s place, when she realised her house had been searched, she went to the police station and that the only person at the police station at that point in time was her superior.  She stated that she confronted him and hit him with an ash tray and that he began to bleed profusely.  She stated that after this she ran away and hid with the relative.

   The Applicant stated that her parents were arrested for some five to six days, as the police were unable to locate her.  The Applicant was asked what she did from March when these events took place to July when she came to Australia.  She stated that she hid with her distant relative and only made telephone contact with people.  She stated that this relative lived only about one hour by bus from her parents’ house.  The Applicant stated that because she realised she was in danger she decided that her best option was to travel overseas and that her friend organised her visa, passport, etc to come to Australia. 

   The Tribunal pointed out to the Applicant that in fact her passport had been issued in 2003.  The Applicant was asked how she came to have her passport given that she had gone down to the street to go to the post office and from this point in time had not returned home.  The Applicant was asked how she organised her passport to travel overseas, given those circumstances.  The Applicant stated that her friend arranged everything for her and she did not know how he came to get hold of her passport.  The Applicant stated that she did not ask him these sorts of questions. 

   The Tribunal put to the Applicant that the Tribunal had great difficulty believing this story and found it to be implausible.  The Applicant stated that she was telling the truth and that she did not have anything further to add.

10. The Tribunal's findings and reasons for affirming the delegate's decision were brief, and turned on its assessment of the credibility of the account given to it by the applicant.   It said:

    The Applicant’s claims may be summarised as follows. The Applicant claims that she had some interest in Falun Gong. The Applicant claims that her superior in the police force demanded that she marry his disabled son. When she refused he organised a raid on her home, arrested her parents and accused her of association with Falun Gong, she then confronted him physically attacked him and then fled, staying for sometime with distant relatives before fleeing to Australia. The Tribunal finds as follows.

    The Tribunal did not find the Applicant to be credible on several key aspects of her claims as outlined below. At the hearing the Applicant did not impress the Tribunal in responses in giving evidence which was weak, unconvincing and at times evasive. As such the Tribunal is not satisfied that the Applicant left China because of the circumstances she has described.

    The Tribunal considers the Applicant’s account of events that she claims led to her departure from China to be implausible in a number of ways such as when considered collectively they lead the Tribunal to the conclusion that the claims are fabricated.

    Given that the Applicant was a police officer from 2000 until 2004 the Tribunal considers it unlikely that she would have been engaged in Falun Gong activities in light of the fact that Falun Gong had been declared illegal in 1999. But even if the Applicant had some interest in Falun Gong and was reading Falun Gong literature the Tribunal considers it to be implausible that she would tell her superior in the police force that she was engaged in this activity.

    The Tribunal considers it to be peculiar that her superior would attempt to revenge the Applicant’s refusal to marry his son in the way she describes. The Tribunal also considers the Applicant’s account of events that after the claimed police raid on her home to be far fetched. That is she went to the police station, which the Tribunal considers to be most odd after her family has just warned her to not return home because of the police raid; her superior was the only policeman on duty; which the Tribunal considers to be against the odds, she assaulted him with an ashtray and he was seriously injured; which the Tribunal considers unlikely given that her superior is a trained police officer on duty with presumably some skills in self –defence and she then ran away.

    Furthermore the Applicant was unable to explain to the Tribunal how she came to have her passport to enable her to depart China. The Applicant claims that when the police raided her home she was out and about in the street and her family rang her on her mobile telling her not to return home. The Applicant claims she fled to a relative’s house and from there departed China some months later. In light of this chain of events and given that the Applicant had already been issued with a passport, the Applicant was unable to explain to the Tribunal how she was able to get her hands on her passport. She simply claimed that a friend organised this and she did not ask him any questions.

    Accordingly, the Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.

11. The applicant's application for judicial review filed in this court on 8 February 2005 made the following five complaints:

    1)The member of the Tribunal makes an error of law.

    2)The member of the Tribunal only referred to the country information unfavourable for the protection visa applicant.

    3)It is totally hypothetical of the Tribunal member to say the evidence provided to the Tribunal by the applicant was not genuine.

    4)The member of the Tribunal identified the wrong questions and ignored the relevant materials and relied upon irrelevant materials.

    5)The member of the Tribunal determined questions of law not in accordance with the law

12. In relation to Ground 1, I have not been able to identify an error of law for myself in the Tribunal's decision, and no argument has been presented by the applicant to allow me to address this ground further. 

13. Ground 2 is incorrectly premised because the Tribunal did not rely on country information unfavourable to the applicant. 

14. Ground 3 is difficult to understand, and has not been explained to me by the applicant.  I am unable to identify jurisdictional error arising from it. 

15. Ground 4 is too general to understand.   To the extent that it has been picked up in a further amended application, I shall consider this below. 

16. Ground 5 has not been particularised and I am unable to give it meaningful content. 

17. The applicant attended a first court date before a registrar on 16 February 2005 and was directed to file an amended application.   At a directions hearing held on 9 May 2005, I set the matter down for final hearing today.  The applicant has been referred for advice by a barrister under the legal advice scheme, and I am satisfied she had had sufficient opportunity to prepare for today's hearing.  She did not file any further documents explaining her arguments until attending court today, when she filed in court by my leave an amended application.  Ms Nanson for the Minister did not object, and has made useful submissions notwithstanding that she had not been given any notice of the arguments in this document. 

18. Ground 1 in the amended application is:

    1)The Tribunal commits a jurisdictional error since it ignores the relevant materials and asks the wrong question:

    The applicant claims are based on she is a Falun Gong practitioner.  But the Tribunal fails to question the applicant with her involvement with Falun Gong.  Instead the Tribunal ask irrelevant questions.

19. The applicant sought to elaborate this ground by drawing attention to the general situation facing Falun Gong practitioners in China.  I think that within this Ground is a complaint that the Tribunal has failed to address a significant component of her claim for protection, being her situation generally as a Falun Gong practitioner if she returned to China (c.f. on this type of error, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263).

20. I have thought carefully about whether the Tribunal did adequately identify and address the applicant's claims, and in my opinion, it has.  It is clear, in my view, that the applicant in her written statement, and again in her evidence to the Tribunal, based her claim to fear persecution upon the acceptance of the Tribunal of her account of her dealings with her superior in the police force.  I consider that the Tribunal was entitled to take the view that her fears as a Falun Gong practitioner arose out of the actions which she claimed he had taken by way of retribution against her refusal to marry his disabled son.  In particular, that that he placed her on a wanted list and was responsible for a police raid which uncovered evidence of her association with Falun Gong.  I consider that the Tribunal was entitled to take the view that the applicant did not put forward a fear based on other events or actions concerning her practice of Falun Gong.

21. The applicant had been given warning in the delegate's reasoning that acceptance of her fears relating to Falun Gong would require acceptance of her account of victimisation by her superior, or evidence of involvement in Falun Gong activities of a particular sort.  However, on the evidence before me, she did not attempt before the Tribunal to put forward a case based on the latter.  That is, she did not put forward an alternative basis for fearing persecution as a Falun Gong practitioner.

22. Ultimately, the Tribunal has rejected her claim to have a well-founded fear based on its rejection of the truth of her personal history.  I do not consider that the Tribunal has failed to exercise its jurisdiction when dealing with the applicant's claims.   In my opinion, its rejection of the applicant’s claims concerning her superior officer left no outstanding claim for refugee status which the Tribunal was obliged to consider.

23. In relation to the applicant’s complaints about the questioning by the Tribunal at the hearing, it is difficult to assess these in the absence of a transcript.  On the Tribunal's account of the hearing, it has not asked her irrelevant questions, and I am not persuaded that the Tribunal has made any error in failing to question the applicant further about her involvement in Falun Gong.  As many authorities have pointed out, it is up to the applicant to put forward her claims to qualify as a refugee.  The Tribunal is not obliged to make the applicant's case on her behalf through its own questioning.  I am not persuaded that she was denied an opportunity fully to explain her claims.

1. I therefore do not think any jurisdictional error is made out by the concerns raised under Ground 1 of the amended application.

2. Grounds 2 and 3 of the amended application are:

   2)The Tribunal commits a jurisdictional error since it identifies a wrong issue and make an erroneous finding and reaches a wrong conclusion.

   In Part D, Convention Grounds of the DIMIA’s  decision, it has been found that the applicant’s claims fall within the Convention reason of particular social group.  But the Tribunal contradicts itself in its decision that it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

   3)The DIMIA/Tribunal commits a jurisdictional error since it refers to the country information unfavourable for the protection visa applicant:

   In the DIMIA’s decision, it prepared to accept that the applicant is a Falun Gong practitioner as claimed, but it does not consider the applicant would be subject to harm of mistreatment.  This is because, in making the assessment, it gives weight to a wide range of country information that Falun Gong can be practiced on an individual level, and other practitioners are not required to proselytise or recruit members.  The Tribunal further applies the country information in its decision as a number of independent sources including those listed at Part B above are of the opinion that ordinary adherent of Falun Gong are unlikely to be in danger of serious mistreatment from the PRC authorities.  Private practice of Falun Gong, without adverse consequences from the PRC authorities, is impossible.

3. I accept the submissions of Ms Nanson that the particulars provided of these complaints appear to relate to the delegate's decision and not to the Tribunal's decision.   Such mistakes, if they existed, could not give rise to a jurisdictional error in the Tribunal's decision.  In any event, the criticisms of the delegate's decision do not appear to be correctly based.  If the contention is that there is some inconsistency between findings made by the delegate and the findings of the Tribunal, then I do not consider that this would establish jurisdictional error.  The Tribunal is not bound by findings of the delegate, nor obliged to make its decision upon reasoning which is consistent with the delegate’s reasoning.

4. I attempted to obtain further clarification of these grounds from the applicant, but she was unable to provide it.  Giving them such meaning as I can I am not persuaded that either of them has found jurisdictional error in the Tribunal's decision. 

5. For the above reasons, the applicant has not made out grounds for the relief that she has sought from this court. I can find no jurisdictional error affecting the Tribunal’s decision, and it is therefore a privative clause decision within s.474(1). I must therefore 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:  Iliya Marovich-Old

Date:  7 July 2005