SZFXK v Minister for Immigration - [2006] FMCA 1187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFXK v MINISTER FOR IMMIGRATION

[2006] FMCA 1187

MIGRATION – Review of RRT decision − where applicant previously discontinued matter − where applicant applied for reinstatement of the application − whether Tribunal committed jurisdictional error − whether the Tribunal failed to have regard to certain information − whether Tribunal failed to bring certain information to the applicant’s attention − where the Tribunal found applicant not to be credible

Migration Act 1958, ss.48B, 91R

Applicant:

SZFXK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG 668 of 2005

Judgment of:

Raphael FM

Hearing date:

7 August 2006

Date of Last Submission:

7 August 2006

Delivered at:

Adelaide

Delivered on:

7 August 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent:

Mr P. d’Assumpcao
Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 668 of 2005

SZFXK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(As Corrected)

The applicant is a citizen of the People's Republic of China. He claims to have arrived in Australia on 24 February 2003. On 17 November 2004 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 November 2004 a delegate of the Minister refused to grant a protection visa and on 30 November 2004 the applicant applied for review of that decision.
The applicant attended a hearing before the Tribunal at which he was represented by RACS. There were two hearings; the first on 7 January 2004 and the second on 2 February 2004. The Tribunal also had the benefit of a very lengthy submission made by the applicant and translated for the Tribunal. On 2 March 2005 the Tribunal determined to affirm the decision not to grant a protection visa and as the applicant was then in detention in Villawood a letter to that effect was sent to him on that date.
The applicant then filed an application for review of the decision of the Refugee Review Tribunal on 16 March 2005. The matter was due to be heard in the Federal Magistrates Court in Sydney on or about 6 May 2005, but on 4 May 2005 a letter was received by the Court which stated:
“My lawyer, Mr Ray Turner, came to see me this morning. He advised me that I won't win before the Federal Magistrates Court because the RRT didn't make any legal errors and I'd better write to the Minister for DIMIA than go to the Court. So I decide to cancel the hearing dated on 6 May 2005 with the reasons as following:
1. I have no money to pay the legal costs if I lose before the Court. I also don't want to make the Government waste money on me because I have already owed the Government a lot of money.
2. I can't make a go with the Court if the RRT didn't make any legal errors as my adviser Mr Ray Turner said.
3. I will get car sick on the way to the Court.
4. I would like to write to the Minister instead of to go to Court.
Thank you for all the trouble.”
This letter was treated as a notice of discontinuance and the file was placed in abeyance, but on 15 March 2006 the applicant filed a further notice of motion requesting that his case be reopened. That matter was heard before Federal Magistrate Scarlett, who transferred the case to Adelaide because the applicant was by then in immigration detention in Baxter. The matter has come on for hearing before me today. I have determined that I should not make an interlocutory decision not to permit a hearing and I have allowed the applicant to reopen the file and to present his case so that a final decision can be made after hearing all the necessary submissions.
The applicant did ask me whether I could adjourn the matter further because he claimed he had only just obtained some legal advice. The fact is the applicant was told about the hearing on 26 April 2006 and has had more than enough time to seek legal advice. I did ask the Minister's representative to contact the legal practitioner referred to by the applicant. He was able to contact some solicitors who claimed to have knowledge of the applicant's case but was unable to say that they had agreed to take it on. In all the circumstances I informed the applicant that it was best that the matter proceed before me this morning and that if I have made any error, or if I have not discovered an error made by the Tribunal, no doubt the Full Bench of the Federal Court will be able to intervene on his behalf.
When the applicant first applied for refugee status in Australia, he gave a story to the delegate in which he claimed that he was a labourer and an unmarried person. He claimed that he had departed China in 1993 for Malaysia and then departed that country for Australia in 1995. When the applicant came before the Tribunal, he recanted that story and claimed that his true situation was that he was an officer on a merchant vessel who had jumped ship in Adelaide in February 2003. He had found his way to Chinatown in Sydney where, after about a month, he was discovered and placed into immigration detention. The Tribunal based the claims which he had made on that statement and the subsequent particulars of his alleged well-founded fear of persecution for the Convention reasons of religion and political opinion.
The applicant has essentially three claims. The first was that he was a Christian. This was dismissed by the Tribunal as not leading to a well-founded fear of persecution because he had told the Tribunal that he had "moved on" from Christianity to Falun Gong. Membership of Falun Gong could be described as religious, political, or membership of a particular social group. The general view now is that the alleged treatment of its followers is not a species of religious persecution but it perhaps does not matter exactly what nomenclature the fear bears. The applicant claimed that he practised Falun Gong himself and that there was some practice undertaken by his mother in China. In regard to the practice of Falun Gong, the Tribunal said at [CB95]:
“The Tribunal concludes that the applicant has shown no dedication to Falun Gong such as would normally be associated with adherence to a religion. Less than 2 years ago he felt he was committed to Christianity, but since December 2004, he claims to be a sincere follower of Falun Gong. Despite his demonstrated inability to motivate himself to practise Falun Gong, unless a group is already at hand, under way and encouraging him to join in, he states that he thinks he will practice in future in China. However, he also said that a person does Falun Gong for himself, not to make a public spectacle, implying that he would not join in any of the public displays sometimes undertaken by adherents as a protest against the Chinese Government's opposition to Falun Gong. On the evidence, the Tribunal does not accept that the applicant will seek to practise Falun Gong in China.
The Tribunal is not satisfied that the Chinese authorities have any record of the applicant or any members of his family as practitioners of Falun Gong. The Tribunal is not satisfied that the applicant holds any understanding of or enduring commitment to Falun Gong and is not satisfied that he will seek to practise Falun Gong in the future. The Tribunal is not satisfied that the Chinese authorities' adverse view of Falun Gong will materially affect the applicant; that is, he will not refrain from Falun Gong simply out of fear of persecution.”
Before me today, the applicant sought to give evidence of certain events that have occurred in China since he has been in detention. These involved his mother and his wife. This Court cannot receive such additional and new evidence. Its duty is to consider whether this decision of this Tribunal was made according to law. If the applicant has any new grounds for claiming that he is entitled to the protection of Australia, he may seek to apply under s.48B of the Migration Act 1958 (the “Act”).
The second matter considered by the Tribunal was the applicant's claim to have a well-founded fear of persecution for the Convention reason of political opinion. This came about because whilst in detention, the applicant involved himself with a website run by an organisation called the Epoch Times. It would appear from the Tribunal's decision that the Epoch Times is organised out of New York and is involved with people who support Falun Gong and are antipathetic to the regime in China. The organisation encourages people to place on the website a revocation of their Communist Party adherence.
This is what the applicant did. He wrote a letter which he faxed to the organisation. I gather from what he has told me today that he possibly did not realise that the action he took would find its way onto the website and thus possibly into the knowledge of the Chinese authorities, but that is what happened. The applicant claims that this can cause him to be persecuted if he should return to China. It is important to note the following from the decision of the Tribunal at [CB99]:
“The article was faxed to tuidang.dajiuan.com on 24 January, 2005 either by the applicant or on his behalf, perhaps the Epoch Times' "contact person" at Villawood. The Tribunal had spoken to the applicant at the first hearing on 7 January, 2005 and, having gained the impression that the article had been written but not published, warned the applicant against taking further actions which could be construed as actions covered by s.91R(3) of the Act which the Tribunal explained. In the circumstances, the Tribunal regards the faxing of the article for publication on the tuidang.dajiuan.com website as an action designed solely for the purpose of supporting the applicant's claim to have an anti‑Government view which could lead to harm befalling him.
The Tribunal had the discussion with the applicant about s.91R(3) after hearing from the applicant that he had been interviewed via the telephone in December 2004. The interviewer came from the Sound of Hope station. The Tribunal had ascertained that the Sound of Hope station is a subsidiary of the Epoch Times. It is not broadcast on the airwaves, but is accessible through the Epoch Times website to those with auditory devices on their computers. The Tribunal discounted the impact of this interview at the first hearing as the applicant had been interviewed under his pseudonym.
In short, the applicant took actions - or was encouraged to do so - in December and January which were designed to give him a public profile, a person who would speak out against the Chinese Government. Even if the Tribunal was not discounting these actions under s.91R(3), it is not satisfied that they would give him the political profile he was striving for. As noted, the interview was done under a pseudonym, and the applicant was told that it would be edited into a 5‑minute piece. The Tribunal is not sure that the interview was, in fact, from a broadcast but in any case, an anonymous 5-minute piece would not attract a great deal of attention from the authorities.”
The Tribunal also concluded that having found that the Chinese authorities did not regard the applicant adversely in the past, and the fact that they were not privy to his occasional practices of Falun Gong in Villawood, there was a small chance only that they may have noticed his message on the website, but in the face of 40,000 or more other messages, the Tribunal concluded that chance was remote. Because of these matters, the Tribunal concluded that it was not satisfied that he had a well-founded fear of persecution for reasons of his political opinion.
The Tribunal also pointed out that the applicant had told it that when he first arrived in Australia after jumping ship, he went immediately to the Chinese Embassy to see whether or not they would repatriate him. He was only discouraged from taking the repatriation course at that stage because of the fact that the Chinese Embassy told him he would have to pay all his own costs. The Tribunal came to the view that this indicated that he had no subjective fear of persecution at that stage.
In his grounds for application, the applicant makes the following points:
“(1) The RRT officer made apparent errors in applying the law in my case.”
Regrettably, the applicant has not particularised these errors in any way, and it is difficult for me to make any findings in this regard in the absence of such particulars. I have read the Green Book. In my view, the Tribunal came to its conclusions by a lawful process. It did not refer to any information that the applicant was not advised about. It put to him the difficulties he might have because of s.91R(3) of the Act and, in all other ways, seems to have given a thorough hearing and provided detailed reasons for its decision.
“(2) The RRT decision-maker mistook the information about Falun Gong practitioners' persecution in China from his own information resource.”
Before me today, the applicant raised a number of matters concerning what occurs to Falun Gong practitioners in China. I have already stated that I am unable to receive such additional evidence and must make my decision on the basis of the evidence that was there put. This is not one of those cases where the Tribunal has made findings about the treatment of Falun Gong practitioners in China based upon what may now be considered to be slightly out-of-date information. The Tribunal's decision with regard to Falun Gong was that the applicant was not a serious practitioner, if he was a practitioner at all. If, in that, it is mistaken, it is a mistake of fact which is within jurisdiction.
“(3) The RRT decision-maker can't obtain the newest information that the Chinese Embassy spokesman declared on 28 January, 2005 that Falun Gong has been a reactionary organisation in engaging in anti-China activities. That means any Falun Gong practitioner will be persecuted by the Chinese Government.”
If the declaration by the Chinese Embassy referred to was made on 28 January 2005, this was some months before the Tribunal decision, and the applicant could have advised the Tribunal of it and sought to make further representations. He did not. It is not a jurisdictional error on the part of the Tribunal not to have regard to information that might be of assistance to an applicant if it is not drawn to its attention.
“(4) The RRT decision-maker didn't accept any of my evidence about Falun Gong.”
This is a credibility complaint. Credibility is a matter for the Tribunal par excellence. The Tribunal gives its clear reasons for any views which it takes about the applicant's credibility. In fact, my reading of the decision is not that the Tribunal didn't believe the applicant. It just did not think that the practice of Falun Gong as described by the applicant brought him into a class of persons who might have reason to fear should they return to China.
In all the circumstances there is nothing that I can find in the Tribunal's decision that would lead me to believe that it made that decision having fallen into jurisdictional error. I must therefore order that the application be dismissed. The applicant is to pay the respondent’s costs which I assess in the sum of $3500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: