SZGQS v Minister for Immigration - [2005] FMCA 1796

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1796

MIGRATION – RRT decision – Chinese Falun Gong practitioner – Tribunal found no commitment when in Australia – no jurisdictional error found – delay in seeking judicial review.

Migration Act 1958 (Cth), ss.417, 424A(1), 483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8(2)(b)

Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 29
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
SZAQY v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 1382
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZGQS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1738 of 2005

Judgment of:

Smith FM

Hearing date:

22 November 2005

Delivered at:

Sydney

Delivered on:

22 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J A C Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1738 of 2005

SZGQS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 5 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 July 2001 and handed down on 26 July 2001. The Tribunal affirmed a decision of a delegate refusing the applicant’s application for a protection visa.
Although the amendments to the Migration Act which inserted the current privative clause provisions of Part 8 into the Act were made after this Tribunal’s decision, those provisions apply to the present application by reason of a transitional provision (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)). This is because the applicant did not commence any judicial review proceedings in relation to the Tribunal’s decision prior to the present application.
The effect of the privative clause limitations is that I do not have power to set aside the Tribunal’s 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 claims should be believed nor whether she qualifies for a protection visa or any other permission to stay in Australia. The final decision on these matters is left to the administrative decision‑makers, including the Minister.
The nearly four years delay before the applicant commenced proceedings for judicial review supports a submission by the Minister that the Court should in its discretion refuse relief, even if jurisdictional error were found, because the delay was unwarranted. I shall return to this submission below after considering the legality of the Tribunal’s decision.
The applicant arrived in Australia in December 2000. With the assistance of an agent called Billie Shi, she lodged an application for a protection visa on 15 January 2001. She stated that she lived at an address at Lakemba. This address appeared on all subsequent applications, including applications made to the Minister after the Tribunal’s decision. The applicant has today given evidence that this was her home address over the relevant years.
A typed statement attached to the application contained the applicant’s claims for the protection of Australia as a refugee. It said that she had been well‑educated, had worked as a manager in an administration department of a company, and was a member of the Chinese Communist Party. It said:
Before it was labelled as cult in July 1999, everyone including Communist Party members were not stopped from practising Falun Dafa. With the purpose of improving health situation

I joined the morning practice in our living area in year 1998.
The applicant said she discussed her practice at her work and when Falun Gong was labelled as a cult she “couldn’t agree with the government’s attitude towards it”. She claimed that she expressed her doubts at her weekly meeting, and said: “my words were recorded as bad examples and criticized by some other members. I was isolated to accept investigation and was forced to join a 15 days study class to wash my mind”. As a result of her experiences in this class:
It was from that day on that I decided to leave the Chinese Communist Party. My belief towards Falungong was stronger than before. I didn’t want to give up practicing. They didn’t allow us to practice in the public, I practices at home. They took away my books, tapes, clothes and photos of Master Li, I used my knowledge in my memory to continue the practice.
I was dismissed from the government and the Party, and was labeled someone with problems. I was not afraid of them any more, I knew what was going to happen to me if I continued my practice. But I was not afraid.
A delegate refused her application on 21 February 2001, significantly because she had not attended an interview to which she had been invited. The delegate recorded her agent as having informed the Department that “the applicant did not want to attend an interview in relation to her Protection Visa application”.
The applicant then employed a different agent when filing an application for review on 3 March 2001. This was a business called “Shine Business Consultant Centre”, in which somebody called Mark Sutherland held the Migrant Agent Registration. The applicant has today, however, referred to the person to whom she gave instructions as Thomas Liu at that firm.
In the body of the review application, it was claimed that the applicant had not been informed about the delegate’s interview and now wished to attend an interview. It gave her Lakemba home address and asked for correspondence to be sent to her agent.
Several letters sent to the applicant’s home address by the Tribunal were returned to the Tribunal for reasons that are not clear, but it would appear that the postman could not find the specified address. The applicant did receive notice of an invitation to a hearing on the 18 April 2001 which was sent to that address and to her agent, since she attended that hearing.
The transcript is not in evidence, but the Tribunal gives a description of her evidence which I have no reason not to believe. It included her repeating her claims to have practised in Falun Gong in the year before the crackdown:
At the hearing the applicant repeated her claim that she was a Falun Gong practitioner and she anticipated mistreatment by the authorities in China because of her Falun Gong activities. The applicant stated that she became involved with Falun Gong in 1998. She claimed that her health improved considerably by doing the Falun Gong exercises. The applicant stated that in August 1999, following the government ban on group, she was detained with 34 other Falun Gong practitioners and subjected to re‑education classes over a two week period. The applicant stated that during the detention she and other Falun Gong practitioners were told that the group was an evil cult. She stated that after her release she practiced Falun Gong only in her home.
The applicant claimed that in September 1999 she was expelled from the CCP and dismissed by her work unit because she was identified as a Falun Gong practitioner. The Tribunal indicated to the applicant that in her application she indicated that she was employed by the work unit until January 2000. The applicant replied that she took legal action against her work unit for unfair dismissal and the matter was not resolved in the courts until January 2000.
The applicant claimed that after Falun Gong was banned by the government she practiced Falun Gong at home. She stated that she discreetly met other practitioners to discuss Falun Gong. The applicant stated that the local authorities came to her house every two or three days and told her to stop practicing Falun Gong. She claimed that she eventually decided to leave the country to avoid further harassment by the authorities.
The Tribunal referred to discussing with the applicant whether she had participated in protest rallies involving Falun Gong in Australia and she said she had not. The Tribunal put it to her that her activities did not satisfy the Tribunal that she was a Falun Gong activist:
The applicant stated that in Australia she participated in Falun Gong activities with the [suburb] group. She stated that she attended daily practice sessions with the group and she participated in twice weekly group discussions at the instructor’s home. The applicant stated that she only knew the organiser of the [suburb] group as “J” and she could not remember her contact details. The Tribunal indicated to the applicant that the evidence she presented regarding her Falun Gong activities in Australia was vague. She was asked to provide a statement from the organiser of the Falun Gong [suburb] group outlining her involvement with the group. The applicant was told that if the organiser did not wish to provide the information, the applicant was to provide the Tribunal with contact details for that person. The Tribunal indicated to the applicant that it required further information to be satisfied that the applicant was a committed Falun Gong practitioner as she claimed. The Tribunal indicated that it would wait until 2 May 2001 for further submissions from the applicant.
Submissions after the hearing
The Tribunal received a telephone call on 2 May 2001 from a person claiming to be a friend of the applicant. The caller stated that the Tribunal should contact a person known only as “L” who could verify the applicant’s claims regarding her Falun Gong activities in Australia. The Tribunal asked the applicant to provide full contact details, including names and addresses, of witnesses who could verify the applicant’s claim that she attended Falun Gong activities in Australia. On 4 May 2001 the Tribunal received a submission from the applicant with contact details for “L”. The applicant provided telephone numbers but not the address of the witness. The Tribunal was unable to contact the witness on the telephone numbers provided and the applicant’s adviser was contacted again, by an officer of the RRT, and asked to provide further contact details for “L” and other witnesses that had seen the applicant attending Falun Gong activities in Australia.
On 31 May 2001 the Tribunal received a submission from the applicant’s adviser. He provided five names including “L” who did not provide her full name and refused to supply her address, “A”, “Ms. H” and “HLZ” who were “not answering telephone” and did not “supply address”. One name and address was included in the list provided but no details were submitted regarding the witness, his relationship with the applicant, or what information he could provide. On 1 June 2001 the Tribunal contacted the applicant’s adviser and indicated to him that the submissions provided were inadequate. The adviser was notified that the applicant had one week to provide evidence, including statements from witnesses, in support of her claim that she was involved in Falun Gong activities in this country. The Tribunal did not receive further submissions from the applicant and it proceeded to make a decision on the available information.
The Tribunal’s recounting of its correspondence with the agent is consistent with the documents in the Court Book, and is not disputed by the applicant.
In its statement of reasons, the Tribunal referred to country information concerning Falun Gong practice and the treatment of its practitioners up to the time of the Tribunal’s decision.
Under the heading “Findings and Reasons”, the Tribunal commenced by stating: “the Tribunal has reached the conclusion that the applicant did not present a truthful account of her circumstances in China and Australia”. It said:
The Tribunal accepts that the applicant had some involvement with Falun Gong prior to July 1999 when the organisation was banned by the government of China. The Tribunal also accepts that as a consequence of her involvement in Falun Gong she attracted the adverse attention of the authorities when the group was banned. The Tribunal accepts that during that period, and at the height of the government’s crackdown against the group, the applicant was subjected to political indoctrination classes and harassment by the authorities over a two week period.
However, the Tribunal then made a critical conclusion concerning the applicant’s current involvement in and commitment to the practice of Falun Gong:
Nevertheless, after considering the applicant’s evidence during the hearing, and her description of her circumstances in China and Australia, the Tribunal has formed the view that the applicant effectively abandoned her involvement with Falun Gong in mid 1999. It is the Tribunal’s view that if indeed the applicant has been involved in Falun Gong from mid 1999 until the present she would have been able to provide meaningful details regarding those activities. However the applicant’s evidence regarding this matter was vague. The applicant claimed that in Australia she attended Falun Gong practice sessions on most days of the week and that she also attended Falun Gong discussions groups twice a week. However, despite ample opportunity given to the applicant by the Tribunal to verify her claims through witnesses she was unable to provide evidence in support of her claims.
After considering the applicant’s evidence during the hearing and her subsequent failure to provide corroborative evidence from witnesses, the Tribunal is not satisfied that the applicant is a committed or active Falun Gong practitioner as she claims. It is the Tribunal’s view that the applicant fabricated these claims to enhance her protection visa application. The Tribunal has decided that the applicant’s claim that she is a committed Falun Gong follower lacks credibility and it is not accepted by the Tribunal.
The Tribunal then addressed a claim that she made at the hearing that she had been harassed after her attendance at the re-education classes. It concluded, after referring to inconsistencies in her evidence overall and to country information:
After considering the inconsistent manner in which this claim was presented by the applicant, and the applicant’s explanation for the inconsistencies, as well as relevant information from external sources, the Tribunal has decided that this claim was fabricated by the applicant at the hearing to enhance her application and it is not accepted by the Tribunal. It is the Tribunal’s view that when the applicant ceased to be involved in Falun Gong group activities she also ceased to be of interest to the authorities in China despite her previous association with the group.
The Tribunal’s conclusion that the applicant had ceased to have a commitment to Falun Gong practice, then provided its reason for rejecting a claim that the applicant had been the subject of search by the authorities due to her previous Falun Gong activities, which the applicant claimed to have been notified of by a letter from her sister. The Tribunal thought that claim “was fabricated by the applicant to enhance her protection application”.
The Tribunal considered the situation of Falun Gong practitioners who were detained in 1999, and said: “the authorities have not demonstrated an ongoing interest in those individuals once they stopped being involved in Falun Gong”. Following its previous conclusion that this applicant had stopped being involved, it said:
The Tribunal is not satisfied by the evidence that the authorities in China will have any interest in the applicant, or attribute an adverse political opinion to her, due to her previous involvement in Falun Gong.
The Tribunal’s reasoning concerning whether the applicant’s claims to have a well‑founded fear of persecution due to her actual or perceived involvement in Falun Gong if she returned to China was given in 2001, prior to many recent High Court cases which have clarified the law. I was concerned whether the Tribunal had made errors in its assessment of the applicant’s fears such as were discussed in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”). A clear principle emerges from that case that it would be an error for a Tribunal to conclude that “persecution does not exist if a person, by concealing opinions or behaviour likely to attract retribution and serious harm, can avoid such retribution” (see Gleeson CJ at [11], see also McHugh and Kirby JJ at [35] and Gummow and Hayne JJ at [80]). However, I do not consider that this Tribunal has fallen into that error since, on my understanding of its reasoning, it concluded that the applicant would not wish to practise Falun Gong if she returned to China due to a loss of commitment, and not by force of threats of persecution which would then exist in China if she returned. This reasoning may be contrasted with the erroneous reasoning identified by Tamberlin J in SZAQY v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 1382.
A separate concern arises from the judgment of McHugh and Kirby JJ in Appellant S395 as to the questions which a Tribunal should ask itself when a history is given of the abandonment of religious or political or social opinions or activities in the face of threats of persecution. Their Honours suggest that an assessment of a history of abandoning activities due to past persecution would need to take into account the reasons for the abandonment (see for example at [34]‑[35]). However, I do not understand their Honours to suggest that this needs to occur in all cases, nor to disagree that the principal obligation of a Tribunal is to make a predictive assessment as to how the applicant would wish to live his or her life if they returned to their country of nationality if persecution were absent, and the extent to which those wishes could be given effect in the face of a risk of persecution (see for example the reasoning of Gleeson CJ in Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 29 at [7] and of Hayne and Heydon JJ at [151]).
In the present case, in my opinion, the Tribunal has made a proper predictive assessment based on its conclusion as to the applicant’s current and likely future commitment to the practice of Falun Gong. Its assessment was based significantly on the Tribunal’s opinion as to the involvement of the applicant in her claimed practices while living in a free environment in Australia. I am therefore not satisfied that the Tribunal made any jurisdictional error by not discussing and making findings on the extent to which the applicant’s behaviour, prior to coming to Australia, had been modified by reason of threats of persecution. I do not consider that it was required to make a finding as to whether the applicant “effectively abandoned her involvement” and “ceased to be involved in Falun Gong group activities” as a result of past persecution. On the path of reasoning followed by the Tribunal, it was not satisfied that the applicant had maintained any commitment to Falun Gong while living in a free environment, unaffected by persecution. For that reason it was not satisfied that she would wish to practise Falun Gong if she returned in China, regardless of whether persecution of Falun Gong practitioners was then occurring. Since it also concluded that she would not be persecuted for past involvement in Falun Gong which would not continue, it could not be satisfied that her fears were well‑founded. I do not consider that this reasoning revealed jurisdictional error.

Counsel for the Minister canvassed with me whether the Tribunal’s reasoning, which referred to inconsistencies between the applicant’s original visa application statement and her evidence to the Tribunal, gave rise to a duty under s.424A(1) which was not performed. That is, a duty to invite written comments on adverse information which was used by the Tribunal as part of its reasons for affirming the delegate’s decision. However, I accept counsel’s submission that the Tribunal referred to the applicant’s claims in the original visa application and the manner in which it was presented, in a manner not giving rise to a duty (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)]).
The Tribunal’s reasons, after dealing with the applicant’s Falun Gong claims, considered her history concerning her employment in China and formed the view that if she encountered a denial of government employment this would not amount to persecution. It was not satisfied that she would be subjected to circumstances amounting to persecution in relation to employment “for a Convention reason”. I do not consider that it made errors of jurisdiction in assessing that part of her claims.
The applicant has not been legally represented in the present proceeding and has suffered handicaps from being in immigration detention, although it appears that she has been released since at least August. She has filed only one document in the Court, that being her original application, and has not prepared written submissions. Nor has she been able to make oral submissions directed at identifying jurisdictional error. Her oral submissions to me were essentially to maintain the truth of her claims and her fears of persecution. She has also maintained that she has additional probative material that she could present to a Tribunal if her case were remitted. However, as I have explained to her, the Court cannot give her this opportunity in the absence of jurisdictional error affecting the Tribunal’s decision.
The applicant’s application has four grounds:
A.I’m a citizen of China who claims to have a well‑founded fear of persecution for reasons of my Falun Gong practitioner in China under the Refugee Convention by the Refugee Protocol.
B.The RRT failed to deal with the applicant’s supplement claim of persecution by reason of my Falun Gong practitioner.
C.The RRT was in error of Laws finding were open to it from my fact and evidence.
D.The RRT member refused to receive that the applicant has a well‑founded fear of persecution [for] Convention reasons.
I am unable to identify any failure to deal with the applicant’s claims of persecution, nor error of law as is alleged in the second and third of these grounds. The other two grounds essentially dispute the Tribunal’s conclusion on the merits of the refugee claim.
I have considered whether there are arguments which could be made on behalf of the applicant. However, for the reasons I give above, I have not been able to identify any jurisdictional error affecting the Tribunal’s decision. I must therefore dismiss the application on that ground.
Before doing so, it is appropriate for me to record my conclusions in relation to the issue of delay, since this was the subject of evidence given by the applicant and submissions by the Minister’s counsel. I have reached a firm view that in this case the delay was unwarranted, and has not been explained in a manner which should cause the Court to overlook the unwarranted delay.
The applicant did not file affidavits explaining her delay but accepted an invitation to give evidence on oath. In evidence in chief she denied ever seeing the letter from the Tribunal informing her agent of the adverse decision given by the Tribunal in July 2001. She denied even knowing anything about an adverse decision by the Tribunal until she was taken into immigration detention in May this year. She claimed her migrant agent never told her of the outcome, and that when she sought to inquire of the agent she was told that the business had shut down and the agent had gone back to Beijing. She claimed to have made no further inquiries about her immigration status until being taken into immigration detention.
Under cross-examination a situation emerged quite differently. She responded to questions evasively. When presented with a letter sent to the Minister in November 2001, she initially denied her signature, but she later admitted she had signed it. The letter requested the Minister’s intervention, and included the statement:
I am looking for further legal activities in Australia, I need some time to finalize the process.
Could you please kindly consider my current situation, and kindly permit me to stay in Australia for this special period.
Please see the enclosed copy of my bridging visa E application form 1008, I would like to apply a temporary legal status of staying in Australia.
The bridging visa application signed by the applicant referred to her having previously made an application for review and: “RRT Decision refused”. The letter provided the applicant’s Lakemba address, and it was to that address that two letters were sent by the Department on 17 December 2001 and 6 February 2002, which eventually told her that the Minister had decided not to consider exercising his power under s.417. The applicant conceded that she had discussed the sending of her letter with her agent, and said that she had promised to pay him money if it resulted in a favourable visa.
I find it inconceivable that at that time she was unaware that her application to the Tribunal had failed. I also find it highly improbably that she did not discuss with her agent her remedies, including the possibility of judicial review proceedings. This remedy was expressly drawn to the attention of the agent, if not the applicant, in the Tribunal’s covering letter which had forwarded its adverse decision.
I therefore conclude that the applicant decided, after receiving notice of the adverse decision of the Minister, to continue illegally in Australia without seeking to challenge the legality of the Tribunal’s decision which had been made on her protection visa application. She remained in that status for several years until taken into detention, at which stage she brought the present application.
In my opinion, her delay in those circumstances was unwarranted. Giving every allowance for her personal situation, I do not consider that it is a delay which the Court should overlook. McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495, has pointed out that:
Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
I would therefore have refused relief even if I had found jurisdictional error affecting the Tribunal decision.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 December 2005