SZFTR v Minister for Immigration

Case •

[2005] FMCA 1708

•

23 November 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1708
MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC as a member of Falun Gong – no serious harm.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S, 474, 483A
Abdul Raheem v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 940
Das & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 489
Saha v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 520
Applicant: SZFTR
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG494 of 2005
Judgment of: Emmett FM
Hearing date: 7 November 2005
Date of Last Submission: 7 November 2005
Delivered at: Sydney
Delivered on: 23 November 2005

REPRESENTATION

The Applicant appearing on his own behalf
Solicitors for the Respondent: Mr Cox, Phillips Fox

ORDERS

  1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

  2. That the Refugee Review Tribunal be joined as Second Respondent.

  3. That the Application filed 24 February 2005 is dismissed.

  4. That the Applicant pay the Respondent’s costs in the amount of $3750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG494 of 2005

SZFTR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

  2. The Applicant was born in Shang Dong on 5 August 1965 and claims to be a citizen of the Peoples Republic of China (“the PRC”).

  3. The Applicant departed the PRC from Qin Dao Airport on 18 July 2004 on a passport issued in his own name and arrived in Australia on 19 July 2004.

  4. On 28 July 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.

  5. The Applicant claimed that he is persecuted in the PRC on the basis of his Falun Gong beliefs.

  6. On 29 October 2004, the Delegate refused the Applicant’s application for a protection visa on the basis that the Delegate was not satisfied that the Applicant has a well founded fear of persecution for a Convention related reason, if he were to return to the PRC, and is, therefore, not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

  7. On 29 November 2004, the Applicant filed an application for review before the Tribunal. On 11 January 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa to the Applicant.

  8. On 24 February 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision (“the Application”). The Applicant seeks review on  grounds set out as follows:

    “1.    I believe that decision by RRT is not fair and reasonable.

    2.  Because I am a believer of Falun Gong. I will face a real chance of persecution and serious harm.

    3.  I believe that Immigration Department and Refugee Review Tribunal should understand chinese government which is very hard to our Falun Gong and give us a protection.

    4.  I can not go back to PRC and I can only stay in Australia to have my believe.”

Legislative framework

  1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.

  2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

  3. Australia owes protection obligation to a refugee on Australian territory.

  4. Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:

    “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

  5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Refugees Convention.

The Tribunal proceeding

  1. The Applicant gave oral evidence before the Tribunal in support of his application for review. The Applicant furnished no further written material in support of his application prior to the hearing, despite having being notified by the Tribunal, on 16 December 2004, that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone.

  2. The Tribunal had before it the material provided by the Applicant to the Delegate for its decision, which contained the statement of the Applicant claiming that he commenced Falun Gong practise in 1999. He claimed that at about that time he was arrested and sent to detention for 15 days where he was left hungry and sleepless and forced to watch video material “which forced us to give up Falun Gong practise”. The Applicant claimed that, following his release, he continued to practise Falun Gong at his place of work, as a result of which, he was “released from my factory”. The Applicant claimed that he came to Australia “in order to get off the control of chinese government.”

  3. In his oral evidence, the Applicant expanded on his claims before the Delegate. He claimed that the incident, in respect of which he was imprisoned for 15 days, took place in August 1999, and that he was “made to stand all the time, prevented from sleeping and was given little to eat.” He confirmed that he was dismissed from the factory in November 1999 because he continued to read openly Falun Gong material.

  4. The Applicant claimed, in his oral evidence, that since 1999 he had taken part in activities involving Falun Gong by distributing leaflets and posting posters with other practitioners. The Applicant agreed that he had not included those details in his protection visa application because his “writing level was low”.   

  5. The Tribunal noted that it asked the Applicant if anything else had happened to him. The Applicant responded that, because the Chinese authorities were harassing him, he had to move. The Applicant claimed that police kept coming to his businesses and those businesses “were getting worser”. According to the Tribunal, the Applicant stated “back then the police would turn up each week and month to harass me.” The Tribunal noted that it had asked the Applicant why details about the police harassing his business were not included in his protection visa application. The Applicant responded that he had thought he had included that detail. The Tribunal noted that it asked the Applicant why the Applicant did not leave the PRC until 2004 if he was being harassed by police since 2000 and his businesses were suffering because of that. The Applicant responded that he did not have the money to leave the PRC until 2004.

  6. The Tribunal noted that it asked the Applicant about addresses he moved to in the PRC prior to coming to Australia. The Applicant responded that the addresses were those of three houses he owned in the PRC, one of which he had given to his ex wife.

  7. The Applicant stated that he had not mentioned some things in his protection visa application because his education level was not good and he could not write. However, the Tribunal noted, that it reminded the Applicant, that the Applicant had told the Tribunal that he had written down his claims for his migration agent in his own language. The Applicant responded that he had just given the agent what the agent had asked for.

  8. The Tribunal accepted that the Applicant had some knowledge of Falun Gong and that he had read a book about Falun Gong at his work place in 1999. The Tribunal accepted that the Applicant was detained for 15 days and was dismissed from his place of work in November 1999 because he continued to read Falun Gong openly at work.

  9. However, the Tribunal did not accept that the Applicant practised Falun Gong after the end of 1999. The Tribunal noted that there was no evidence that the Applicant stopped practising Falun Gong after he was dismissed from work because he was threatened by authorities. The Tribunal noted that the Applicant claimed that he continued to participate in Falun Gong activities after he left the factory in 1999.

  10. The Tribunal did not accept the Applicant’s claim that he distributed leaflets and posted posters and was harassed by the police/authorities at his workplace, or that his business suffered and did badly because of that harassment. Nor did the Tribunal accept that the Applicant had been told that the authorities were still looking for him in PRC. The Tribunal noted that those facts had never been mentioned by the Applicant previously, and the Tribunal considered that they were a “recent invention” by him to assist him in his application for review.

  11. The Tribunal did not accept the Applicant’s claim in his statement in his protection visa application that he used to be detained and checked at home by the Public Security Bureau.

  12. The Tribunal did not accept the Applicant’s claims of being harassed by the authorities at his business as he was able to raise money for the trip to Australia from the businesses, and the Tribunal had regard to the Applicant’s agreement that the authorities did not pursue him after he shut down his businesses.

  13. The Tribunal did not accept that the Applicant left the PRC in 2004 and fears to return there because of harassment and/or fear from the PRC authorities or police because of his Falun Gong activities.

  14. The Tribunal did not accept as truthful the Applicant’s evidence that he had practised Falun Gong whilst in Australia. The Tribunal did not accept that the Applicant had engaged in any Falun Gong activities at all after the end of 1999.

  15. The Tribunal found that the detention of the Applicant and his dismissal from his place of employment did not amount to serious harm for the purposes of the Convention. In arriving at the conclusion, the Tribunal had regard to the fact that the Applicant continued to live in houses he owned, and continued to work in his businesses for about 4 years after that time before coming to Australia.

  16. The Tribunal did not accept that the Applicant left the PRC in 2004 from a fear of being harmed by authorities due to his involvement with Falun Gong, nor did the Tribunal accept that the Applicant fears return to the PRC because of any involvement with Falun Gong.

  17. The Tribunal concluded as follows:

    “Further, in the Tribunal’s view there is no persuasive evidence before it that enables it to conclude that there is a real chance that the Applicant will face serious harm for the purposes of the Convention, for his Falun Gong activities, either now or in the reasonably foreseeable future, if he returns to China.”

  18. Accordingly the Tribunal was not satisfied on the evidence before it that the Applicant has a well founded fear of persecution for the purposes of the Convention.

The proceeding before this Court

  1. The Applicant appeared unrepresented before this Court with the assistance of an interpreter. The Applicant made no submissions on his behalf in support of his Application.

  2. On 8 March 2005, the Applicant was directed to file an amended application. The Application filed on 24 February 2005, contains no particulars, and disclosed no reviewable ground. No further application has been filed by the Applicant. Nor, has the Applicant filed any submissions in support of the Application.

  3. The Applicant’s Application discloses a disagreement with the findings and conclusion of the Tribunal.

  4. At the heart of the Tribunal’s decision was its finding that the Applicant’s detention and dismissal from employment in 1999 did not constitute “serious harm” for the purposes of the Convention as identified in s.91R(2). That is a finding of a fact. The only relevant question for this Court is whether or not that finding was open to the Tribunal on the facts before it (Abdul Raheem v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 940 (“Raheem”) at [31]; Das & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 489 (“Das”) at [23]. The Federal Court made it quite clear in each of those cases that:

    “whether a particular type and severity of harm amounts to persecution is a question of fact and degree.”

  5. This Court is not empowered to assess the merits of the claim for refugee status. The fact that the Court conducting judicial review might have come to a different conclusion in respect of the facts as that arrived at by the Tribunal does not establish error. In Das, the Court did not find error with the Tribunal’s finding that smashing of an Applicant’s finger in the circumstances described was not persecution. In Raheem, the Applicant was a victim of violence, including being hit by a bottle, beaten and having his ear cut.

  6. In Saha v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 520 (“Saha”), the applicant was attacked with hockey sticks, chased to the edge of a roof, had his throat scratched with a razor, was forced to jump from the roof and was badly injured in the course of these activities. In Saha, whilst the Tribunal accepted that the incident claimed by the Applicant occurred, it did not consider that the beatings/injuries received by the Applicant were serious enough to constitute persecution. The Federal Court found that those facts were not so clearly outside the definition of persecution as to amount to an error of law.

  7. In the case before this Court, the Tribunal had regard to the claim by the Applicant that he had been made to stand, prevented from sleeping, given little to eat and sought to be reindoctrinated away from Falun Gong. The Tribunal noted, in the same sentence as that finding, that the Applicant had continued to live in houses he owned and continued to work in his businesses for about 4 years after that time, before coming to Australia. Further, the Tribunal found that the Applicant has not engaged in Falun Gong activities since the end of 1999. Those findings were open to the Tribunal on the material before it and are findings of fact.

  8. Having found that the Applicant did not suffer serious harm, the Applicant did not suffer persecution in the Convention sense as required in s.91R(1) of the Act.

  9. However, in those circumstances, and in the light of those findings, the Tribunal considered whether the Applicant’s fear of persecution in the future was well founded by considering whether there was a real chance of persecution in the reasonably foreseeable future for a Convention reason.

  10. The Tribunal noted that “there is no persuasive evidence before it that enables it to conclude that there is a real chance that the applicant will face serious harm for the purpose of the Convention.” The Tribunal did not accept that the Applicant’s fears in respect of his return to the PRC were because of any involvement with Falun Gong. Nor, did the Tribunal accept that the Applicant left the PRC in 2004 because he was afraid he may be harmed by the authorities due to involvement in Falun Gong.

  11. These findings, coupled with the Tribunal’s findings that the Applicant’s detention and dismissal in 1999 did not amount to serious harm for the purposes of the Convention and that the Applicant was not involved with Falun Gong activities since the end of 1999, provided a proper basis for the Tribunal to find that there is no real chance of persecution of the Applicant in the reasonably foreseeable future for a Convention reason were he to return to the PRC.

Conclusion

  1. In the circumstances, the Tribunal’s decision is not affected by jurisdictional error. The decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

  2. Accordingly, the Applicant’s application filed 25 February 2005 is dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  11 November 2005

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0