SZGRL v Minister for Immigration & Anor
[2007] FMCA 1528
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1528 |
| MIGRATION – RRT decision – Chinese applicant claiming fear of political persecution and for Falun Gong activities – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.91R(3), 424A, 425, 474, 476
| Applicant: | SZGRL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1709 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 24 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms S McNaughton |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
These orders shall not take effect until 21 September 2007.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1709 of 2007
| SZGRL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 30 May 2007, which has been set down for final hearing under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated and handed down on 9 May 2007. The Tribunal affirmed a decision of a delegate made on 30 January 2007, refusing an application for protection visa which was lodged on the applicant’s behalf by solicitors on 10 January 2007.
This was the applicant’s second protection visa application, brought pursuant to a discretionary permission given by the Minister in a letter dated 3 January 2007. At that time, the applicant was held in immigration detention, and had been there since 2005. He is still held in detention. Permission to make a second application was given after the applicant unsuccessfully sought judicial review in this Court during 2006 of a decision of the Refugee Review Tribunal made in 1998, affirming a 1996 decision of a delegate which refused the applicant’s first application for a protection visa made in March 1996.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the Court’s powers are confined by s.474 so that I do not have power to remit the matter to the Tribunal, unless I am satisfied that its 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 or should be given any other permission to stay in Australia.
The applicant’s claims for protection against return to China were presented in a statutory declaration and in a long letter in support of his application to the Minister for permission to make a second visa application. The applicant claimed that he came from a family which had been targeted during the Cultural Revolution, and that as a boy he had seen his father publicly humiliated and discriminated against. During high school he was arrested by officers of the PSB for distributing leaflets with classmates, and he was kept in a cell for several days and beaten and interrogated. After he was released, he was expelled from school, and was required to undertake a period of labour reform. Subsequently, he was warned in his village that he would be kept under supervision. In about 1980 he was sent to a carpentry factory, where he was given the hardest work and required to report to a security office. He claimed:
18.I kept my views to myself for a few years, but in 1988 I came into contact with a drama group for whom our factory was building stage scenery. The play they performed was anti‑corruption and pro‑democratic. Inspired by this, I joined the Democracy Movement which was on the rise at the time. I distributed leaflets and demonstrated on the streets.
19.On 4 June 1989 the Tiananmen Square Massacre occurred. After this event the Communists started investigating and arresting people who were active in the movement.
20.Because I had become involved in democracy demonstrations in my local area, I was arrested and tortured in order to extract confessions from me. I am not sure whether I was in jail or just an underground chamber at the police station.
21.The police wanted to know the names of the leaders and who was responsible for supplying the leaflets. I refused to tell this information and because of this I was detained for 6 months. Over this time I was continually tortured by kicking and whipping. A policeman smashed a chair over me, covering me with blood. I was doused with disinfectant and later they injured my back by forcing me to bend from the waist with my hands on the ground. I lost consciousness.
22.After six months, they released me with a warning not to join any political activities.
The applicant claimed to have spent money to obtain a passport in his own name, which he used to leave China and to come to Australia in 1996. As I have indicated, after his arrival he made an unsuccessful application for protection based on political claims which were similar, but not identical, to the claims made in 2007. When his 1996 application was unsuccessful, he remained unlawfully in Australia until being taken into immigration detention.
His statutory declaration in support of his 2007 visa application also raised another claim to fear of persecution, based on being a Falun Gong practitioner. He claimed: “I began practising Falun Gong in China in 1994 for my health”, and that he had found the practice “greatly beneficial to my health and also to my mental state”. He said: “because of the great benefit I have received from this practice I am greatly devoted to the continuing practice of Falun Gong. I feel that it is a miracle exercise”. He referred to the crackdown on Falun Gong since 1999, after he had left China, and claimed:
Since I have benefited so much from Falun Gong I also want to explain the benefits of Falun Gong to others. I know that it teaches people to be good people. I feel that it is a very bad Government that persecutes the followers of such a beneficial practice that only teaches people to be good. Therefore, when I have the chance I will expose this persecution to the Chinese people and tell them the truth.
He presented evidence to the Department and to the Tribunal by way of declarations and letters of support, which confirmed that he had participated in Falun Gong practices while held at Villawood immigration detention centre, and that on at least one occasion he had attended a demonstration of Falun Gong supporters away from the detention centre. Photographs of this involvement were presented.
In his decision, the delegate did not examine the political claims afresh, but relied on the previous adverse decision. The delegate considered the applicant’s Falun Gong claims, and thought that these had only been raised after the applicant was contacted by the compliance section. He said that there were serious doubts about the credibility of his claims and the genuineness of his claimed fear of Convention‑related persecution.
On appeal, the applicant was represented by the solicitors who had been appointed to assist him in his visa application, and they presented to the Tribunal submissions and further supportive materials. The applicant attended a hearing on 28 February 2007, and he was accompanied by his solicitor. Although the applicant was given the tapes of the hearing, he has not presented a transcript. I have no reason not to accept a description of the hearing which is set out in the Tribunal’s statement of reasons.
Subsequent to the hearing, the Tribunal raised a number of concerns with the applicant in a letter, and he and his solicitor responded to these in writing. On the evidence before me, the requirements of procedural fairness were very fully complied with in this case. I also consider that the Tribunal’s statement of reasons shows very careful attention to the claims made by the applicant, and a genuine attempt to address them on their merits.
The Tribunal at various points in its reasoning expressly reminded itself of the need to treat with caution its impressions of how the applicant had given his evidence at the hearing. It also noted a need to be cautious before drawing adverse inferences from the contents of his first visa application, which the Tribunal accepted had been attended with some problems. Ultimately, the Tribunal arrived at its conclusions upon its assessment of the material presented to it in support of the 2007 visa application, without drawing any particular adverse conclusions based on how the first application had been presented or decided.
The Tribunal correctly, in my opinion, identified the three general claims arising from the material presented by the applicant:
The applicant claims to fear persecution from PRC authorities for the following reasons: (a) as a political dissident, in view of his involvement in the 1989 pro‑democracy movement, (b) his Falun Gong adherence and (c) their knowledge that he is in Immigration detention and therefore possibly a refugee applicant.
The Tribunal then identified a general concern:
The Tribunal has serious concerns about the applicant’s credibility. On occasion he appeared evasive, or relied on bare assertions that did not withstand further scrutiny. On other occasions, he seemed to improvise when trying to explain his actions or inaction. The Tribunal discusses these instances later, where relevant. However, the Tribunal considers that it would be unsafe to rely on these impressions to draw general adverse conclusions about the applicant’s claims. It therefore examines them individually below.
In relation to the applicant’s pro‑democracy claims, the Tribunal concluded that it “does not accept that the applicant was involved in the 1989 pro‑democracy movement, or that he left China for any reason linked with it”. It expressly rejected the various incidents of “consequential harm” that the applicant claimed to have suffered, including his claimed family humiliation and deprivation, being assaulted by PSB officials, being expelled from school, and suffering a period of labour reform, surveillance, discrimination and detention and mistreatment immediately after the 1989 incident.
The Tribunal identified a series of reasons for these adverse conclusions, and took them all into account cumulatively. It identified unconvincing elements in the history claimed by the applicant, and found inconsistency in the circumstances that the applicant had been given a passport in his own name in 1992 and again in 1995, and had used the latter passport to depart China without difficulty. The Tribunal thought that the applicant had not explained the interval between his claimed mistreatment and his departure from China, and it found his evidence about his activities in that period to have been “evasive”. The Tribunal also noted that the applicant had not been involved in any political group in Australia, nor engaged in any other political activities. It said: “this contrasts sharply with the risks that the applicant claims to have undertaken for his political beliefs in China”.
The Tribunal said that it had considered the documents which the applicant had presented, claiming that they were letters from relations in China which confirmed that there was a continuing interest in the applicant and his family by the Chinese authorities. The Tribunal noted concerns about them appearing on their face, and concluded that “their contents are for the consumption of a refugee decision‑maker” and that they were “unreliable”. It found some of their contents “inconceivable”.
The Tribunal concluded in relation to the applicant’s political claims:
The Tribunal does not accept that the applicant was involved in the pro‑democracy movement in 1989, that the PRC authorities or anyone else view him as a political dissident, or that he left China for any associated reasons. The Tribunal finds nothing in the applicant’s circumstances in China or Australia to indicate that he has or will be imputed with a dissident political opinion. The Tribunal therefore finds that there is no real chance that he will be persecuted for any political reason if he returns to China.
The Tribunal finds that the applicant’s adherence to these claims casts serious doubt on his credibility generally.
In relation to the applicant’s Falun Gong claims, the Tribunal did not accept that he had “any involvement with or adherence to Falun Gong in China or in Australia prior to June 2005”, when he had been taken into detention. It explained reasons for that conclusion.
The Tribunal found his description of his introduction to Falun Gong in China “plausible” but “unenlightening”. It put significant weight on the fact that the applicant did not practise Falun Gong at all in Australia prior to his immigration detention, and noted that he had admitted this to the Tribunal. Although he later claimed that he had practised privately, the Tribunal did not accept that. The Tribunal also thought it significant that the applicant had failed to mention any Falun Gong concern in an interview with a Department official, when he was first taken into immigration detention.
The Tribunal took into account statements in the supportive letters, which accepted the applicant’s claims to have been a previously committed Falun Gong practitioner. However, the Tribunal noted that none of the makers of the statement had personal knowledge, and it said that “it is not persuaded that these statements are independent or reliable corroboration of what the applicant actually did prior to his detention”. The Tribunal also explained why it did not put weight on the purported letters from the applicant’s relations in China referring to Falun Gong practice.
The Tribunal was required to assess the applicant’s conduct in relation to his practice in Falun Gong in Australia in the context of s.91R(3) of the Migration Act, which provides:
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal alerted the applicant in the course of the hearing to the provisions of this section, and it is reasonable to assume also that they were familiar to his solicitor. Its conclusions were:
The Tribunal accepts that the applicant has participated in a range of Falun Gong activities since June 2005. His oral evidence regarding this was convincing. Witness statements, the photographs of the applicant at recent Falun Gong events and advice from reputed Falun Gong practitioners and Department officers (as noted in the Tribunal’s correspondence) also confirm that the applicant has participated in such activities.
The Tribunal is not satisfied, however, that the applicant engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee.
The Tribunal explained reasons for this conclusion, which carefully examined the supporting material concerning the applicant’s practice and the opinions presented in the letters of support. It said that it “finds no persuasive explanation for the applicant’s new‑found interest in public Falun Gong activities other than for the purpose of his refugee application”. It also considered a point which it had raised in the course of the hearing and in its subsequent letter, as to whether the applicant’s admitted adulterous relationship and his smoking habit were consistent with being an adherent to Falun Gong teaching. It arrived at the overall conclusion that it was unable to be satisfied that he had engaged in Falun Gong activities otherwise than for the purpose of strengthening his claims to be a refugee. It was therefore obliged to disregard his conduct in Australia, including the possibility that his Australian conduct in relation to Falun Gong might have come to the attention of the PRC government which it regarded would be a “direct consequence of his conduct”. It concluded:
In sum, the Tribunal does not accept that the applicant is a genuine Falun Gong practitioner, despite his recent involvement in Falun Gong activities, or that he will engage in any such conduct if he returns to China. Based on the material to which it may have regard, the Tribunal also does not accept that the Chinese authorities or anyone else will perceive him to be a Falun Gong practitioner. The Tribunal therefore finds there is no real chance that he will be persecuted for any reason connected with Falun Gong if he returns to China.
The Tribunal then addressed the third area of the applicant’s refugee claims, which was whether the Chinese authorities might harm him on his return as a result of his long detention in Australia and his making a refugee claim. It concluded:
The Tribunal accepts as plausible that the PRC authorities may suspect or surmise that the applicant has applied for refugee status. However, the available material does not suggest that unsuccessful refugee applicants face a real chance of persecution in China. The Tribunal does not accept that the applicant’s illegal overstay in Australia, his Immigration detention or his refugee applications give rise to a real chance of persecution in China. The Tribunal therefore finds that the applicant’s fears in this respect are not well‑founded.
The Tribunal concluded, overall, that it was not satisfied that the applicant had a well‑founded fear of Convention‑related persecution now or in the reasonably foreseeable future if he returned to China.
I have considered the Tribunal’s reasoning and procedures, and am unable to identify jurisdictional error affecting its decision.
The applicant has not been represented by a legal practitioner in this proceeding, although he has received advice under a referral for free legal advice. In his original application he set out three grounds for judicial review.
The first two grounds essentially dispute the Tribunal’s conclusions on the merits of the applicant’s refugee claims. They complain that it did not give greater weight to the letters of reference supporting his Falun Gong claim, and that it did not accept his claim to be at risk for political activities. However, these arguments do not provide jurisdictional error, even if they were factually correct.
The applicant’s third ground complains that the Tribunal “failed to afford the applicant procedural fairness by ignoring and disregarding the evidence put forth by the applicant regarding his involvement with the Falun Gong”. However, in my opinion, the Tribunal’s reasons show that it did have regard to all the material which is identified.
At today’s hearing, the applicant presented a written submission which counsel for the Minister had not had an opportunity previously to consider. It makes nine points. I have carefully considered the arguments set out in all of the paragraphs. Most of the submission raises arguments only going to the merits of the Tribunal’s reasoning and clearly do not raise any jurisdictional errors. I am satisfied that the Tribunal did address the applicant’s evidence relevant to all the issues which he addresses.
One of his points was that he was “slow in reacting” in the course of the Tribunal’s hearing, because his mother had died. This was asserted in his written submission, but no evidence was presented in support. A second point made orally by the applicant was that he developed a migraine in the course of the hearing. He claimed that he told the Tribunal about this, but was unsure whether his concern was translated. However, this assertion also finds no support in the evidence before me. No transcript has been presented, and there is no medical evidence of any incapacity before the Court.
On the Tribunal’s description of the hearing, the applicant was able to participate fully and without any observed incapacity. I also note that his solicitor was in attendance, and there is no concern mentioned in her subsequent submissions, nor any evidence from the solicitor, which provides support for these claims. I am not persuaded that anything happened in relation to the hearing which denied the applicant the opportunity required under s.425 of the Migration Act.
Another argument raised in the written submission which I should specifically address, is the applicant’s third point. This claims:
Thirdly, I had strongly mentioned that the colour of the scar and the skin on my body was still black as I was detained and persecuted after the pro‑democracy movement was cracked down in my letters to the minister of immigration and also in my material to the tribunal. But the tribunal ignored this issue and there was no argument about this in the tribunal decision book. The act that the tribunal deliberately ignored the favourable issue for the applicant was not fair.
Neither counsel for the Minister, nor I, were able to identify in the material in the Court Book anywhere that the applicant’s claim to have a scar was presented to the Tribunal or mentioned in the material before it, except in one line of the applicant’s lengthy letter to the Minister which had been attached to his protection visa application, and in one further reference in a letter sent in response to the Tribunal’s s.424A letter after the hearing. No mention of this claim was made in any sworn evidence presented to the Tribunal, nor was any medical evidence presented to elucidate the presence and causes of any scar. No mention of a scar was made by the applicant’s solicitor in her submissions to the Tribunal. There is no evidence, which counsel or I could locate, that there was mention of a scar at the hearing, and the applicant admits that the Tribunal was not invited to consider his scar or to look at his scar.
On the material before me, I am not persuaded that the applicant has identified any jurisdictional error in relation to this matter. The references to having a scar were not prominent in the material before the Tribunal and were unsupported. The Tribunal’s attention was not drawn to the claimed scarring at the hearing, and without more it is difficult to see what weight the Tribunal could have given to the claim beyond its consideration of his general claims of physical mistreatment at the hands of the PSB. It is clear from the Tribunal’s reasoning that it was aware that the applicant claimed to have been physically mistreated, and it addressed that claim. In this situation, I would not infer that the written references to a scar were overlooked by the Tribunal. I am not persuaded that there was any matter which the Tribunal was legally bound to consider which it failed to consider in relation to the applicant’s claim of mistreatment.
The applicant’s oral submissions to me today made some further points, as well as canvassing the points made in his written submissions. However, I did not identify any additional argument which went beyond a repetition of his refugee claims, and an invitation to the Court itself to arrive at conclusions different to those reached by the Tribunal. However, it is not the Court’s function to perform a factual assessment of the material to determine the truth of the applicant’s refugee claims.
For the reasons explained above, I am not persuaded that the Tribunal’s decision was affected by jurisdictional error. It was therefore a privative clause decision, and I have no power to remit the matter to the Tribunal. The application must be dismissed.
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: 18 September 2007
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