SZGTE v Minister for Immigration
[2005] FMCA 1899
•22 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTE v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1899 |
| MIGRATION – Review of decision by Refugee Review Tribunal – applicant claims Tribunal failed to consider claims – particular social group – applicant claims that the Tribunal asked itself the wrong question in respect of ability of the applicant to modify his behaviour – economic discrimination amounting to persecution. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36; 65; 91R; 91S; 422B; 424A; 474; 483 |
| Appellant s395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZGTE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS & AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1847 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 December 2005 |
| Date of Last Submission: | 6 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Dr J. Azzi |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Ms A. Alex, Phillips Fox |
ORDERS
That the Applicant’s applications before this Court are dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1847 of 2005
| SZGTE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 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.
The Applicant was born in Cao Tang, Chang Le City, Peoples Republic of China (“the PRC”) on 16 December 1967, and arrived in Australia on 24 January 1996.
The Applicant was born as a Chinese citizen and claims to remain a Chinese citizen.
The Applicant claims to be a practitioner of Falun Gong.
The Applicant has a wife, daughter born 26 July 1991, and son born
19 July 1994, who were residing in the PRC when the Applicant left the PRC.
The Applicant claimed that he departed Fuzhou Airport on 1 December 1995, illegally. The Applicant claims that Snake Heads helped him obtain a false passport and leave the PRC.
On 21 April 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that in the PRC he was targeted by the Public Security Bureau (“the PSB”) for his support of the student’s plight in the PRC and attendance at the student demonstration on 4 June 1989. The Applicant claimed that his association with the events in Tiananmen Square resulted in specific discrimination, namely, the refusal to grant the Applicant a licence to be able to run his own business.
On arriving in Australia, the Applicant was refused a protection visa and decided to remain in Australia as an illegal immigrant between 1996 and 2003.
In September 2003, the Applicant was detained by the Department and placed in detention. Whilst in detention the Applicant claimed that he was introduced to Falun Gong and has become a serious Falun Gong practitioner. The Applicant now fears that if he returns to the PRC he will be persecuted by the authorities for his Falun Gong beliefs and practices.
On 28 April 2005, the Delegate refused the application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 2 May 2005, the Applicant lodged an application for review before the Tribunal. On 30 June 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 13 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
On 7 September 2005, the Applicant filed an amended application (“the Amended Application”).
On 29 November 2005, the applicant filed a further amended application.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
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.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the 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.”
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 Convention.
The review by the Tribunal
The Applicant claimed to have been involved in the pro-democracy demonstrations in June 1999 and that he is a Christian.
The Applicant has been in Villawood Detention Centre since September 2003. At the time he was detained, he was having physiotherapy treatment for an injury to his arm from an assault in February 2003. The Applicant claimed that, whilst in Villawood, he commenced to practice Falun Gong for his injured hand and arm as an alternative treatment to physiotherapy.
The Tribunal noted that the Applicant had told the Tribunal that he received a book on Falun Gong only two weeks before the hearing and at that time had learnt only two or three of the exercises. The Tribunal noted that the Applicant was unable to discuss the basic teachings of Falun Gong or explain its role in cultivation.
The Tribunal noted that the Applicant had only received the book two weeks prior to the hearing before it and had read very little of it. Further, the Tribunal noted that there was no evidence before it to suggest that the Applicant had sought to obtain materials on Falun Gong, beyond the information relating to the benefits of the exercises to his injured arm. The Tribunal noted that such a benefit may be derived from a range of traditional and alternative therapies in Australia or in the PRC.
The Tribunal found that the Applicant had exaggerated his commitment to Falun Gong in order to strengthen his claim as a refugee. The Tribunal found that the Applicant is not a genuine and committed practitioner and cultivator of Falun Gong.
Given that the Tribunal did not accept that the Applicant has developed a genuine commitment to Falun Gong since arriving in Australia, it found that the chance that the Applicant would practise Falun Gong in the PRC was remote.
The Tribunal found that the Applicant had received therapeutic benefit to the injuries sustained to his hands by way of physiotherapy in the past and found that the Applicant would have continued that treatment had he not been detained. The Tribunal found that, because of his ability to avail himself of other therapies for his arm injury, in the event that he was to return to the PRC where Falun Gong was not available, the Applicant would turn to another type of therapy.
The Tribunal found that such modification of behaviour does not fall within the situation considered by the High Court of Australia in Appellant s395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 (“s395”). The Tribunal made that finding because it found that the Applicant’s case did not involve the suppression of an aspect of his belief or identity because it found that the Applicant did not have a genuine commitment to the practice of Falun Gong in the sense that it is akin to a religious belief or an aspect of his identity. Moreover, the Tribunal found that, on that basis, any modification does not involve any serious harm to the Applicant.
Therefore, the Tribunal concluded that it was not satisfied that the Applicant has a well founded fear of persecution because he is a Falun Gong practitioner, or for any other Convention reason.
The Tribunal noted its consideration of assertions by the Applicant’s representative that, because he had made an application for refugee status based on his Falun Gong practice, that it would be known in the PRC that he is a Falun Gong practitioner if he were to return to the PRC. The Tribunal noted the articles provided by the Applicant relating to PSB spies in Australia. However, the Tribunal, whilst acknowledging the wide reporting in the media of claims of harassment by authorities in the PRC of practitioners in Australia, noted that the full facts are yet to be established.
Having found that the Applicant is not a genuine Falun Gong practitioner, it did not accept that he would be returning to the PRC as a well known Falun Gong practitioner and face persecution by the authorities for that reason. The Tribunal concluded that it was not satisfied that the Applicant had a well founded fear of persecution by the Chinese authorities for reason of him being a Falun Gong practitioner.
The proceeding before this Court
The Applicant was represented by Counsel at the hearing before this Court. Leave was refused to rely on a further amended application, accepted for filing by the Registry two clear working days ago, in circumstances where the same Counsel for the Applicant had prepared and filed an amended application on 7 September 2005. The refusal of leave is dealt with in a separate ex tempore judgment.
The Applicant relied on the grounds identified below in support of his application for judicial review and constitutional writ relief in respect of the Tribunal decision.
Ground 1 – The Tribunal constructively failed to exercise its jurisdiction in accordance with the Migration Act 1958 by not considering the Applicant’s claim to fear persecution by reason of PSB spies infiltrating Australia and informing PSB in the PRC of his Falun Gong activities it is submitted:
a) Whilst acknowledging the Applicant is a recent adherent to Falun Gong, the Tribunal nevertheless rejected the Applicant’s claim based on a disproportional interrogation of Falun Gong exercises and philosophy;
b) The Tribunal unreasonably rejected the Applicant’s claim of fear of persecution being well founded in circumstances where it was accepted that “the full facts are yet to be established” with regards to the PSB spies issue.
In relation to (a) above, without producing a transcript, Counsel for the Applicant contended that the Tribunal had interrogated the Applicant in a disproportional and unfair manner dismissing his claim as a Falun Gong practitioner without reason. Counsel stated that he had sought to reproduce some of the dialogue between the Tribunal and the Applicant in his written submissions. However, his written submissions refer to parts of the Claims and Evidence section of the Tribunal decision, in which the Tribunal identified what it considered relevant in respect of its exchange with the Applicant. What is clear from that part of the Tribunal decision is that the Tribunal was careful to ensure that it had identified the Applicant’s claims and had sought to raise with the Applicant such matters it considered relevant arising out of the claims. The Tribunal is entitled to enquire into the Applicant’s beliefs.
There is certainly nothing on the face of the Tribunal’s decision that would satisfy me that there has been such “disproportional interrogation” of the Applicant as to amount to jurisdictional error.
In relation to (b) above, the Applicant submitted that the Tribunal did not consider the Applicant’s claim that officials in Australia who are connected with the PRC may inform upon the Applicant. However, the Tribunal notes in the Claims and Evidence section of its decision the post hearing submission received on behalf of the Applicant in which such claims were made. Moreover, the Tribunal considered that material in the Findings and Reasons section of his decision and noted that it had considered the Applicant’s claims and evidence on this point but because it had found that the Applicant was not a genuine Falun Gong practitioner, it did not accept that he would be returning to the PRC as a known Falun Gong practitioner.
Those findings are findings of fact and were open to the Tribunal on the material before it and are not, in the circumstances, reviewable by this Court. They are findings that are not unreasonable, illogical, irrational or capricious.
Accordingly, this ground is rejected.
Ground 2 – The Tribunal constructively failed to exercise its jurisdiction in accordance with the Migration Act 1958 by failing to consider the Applicant’s claim of fear of persecution by reason of his belonging to a particular social group
Counsel for the Applicant submitted that the Tribunal should have considered whether or not there was a particular social group of which the Applicant was a member and comprising persons who were involved in the 1989 pro democracy demonstrations, were known to authorities and detained and who now practice in Falun Gong.
In the Claims and Evidence section of its decision, the Tribunal noted that the Applicant claimed to have suffered restrictions in the PRC because of his participation in the pro-democracy demonstrations in June 1989 and, if he is found to be a Falun Gong practitioner in the PRC, the penalty would be even worse because of his record. However, the Tribunal noted that the Applicant stated that he had no further involvement in the pro-democracy movement since 1995.
The Tribunal noted that it sought to clarify with the Applicant his current claims for protection. In so doing, it noted that the Applicant confirmed that his claims were based solely on claims relating to Falun Gong. The Tribunal noted that the Applicant stated that he did not believe he would be persecuted because of his involvement in demonstrations in 1989.
The Tribunal is only required to consider claims that plainly arise on the material before it. (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [55]-[63]).
Further, the Tribunal is only required to consider a particular social group in circumstances where there is evidence of the existence of such a particular social group and evidence of persecution for a Convention related reason of that particular social group and that the Applicant is a member of that particular social group.
In the case before this Court, there has been a specific finding by the Tribunal that it is not satisfied that it would be known to authorities that the Applicant is a Falun Gong practitioner were he to return to the PRC. Further, the evidence before the Tribunal was clearly that the Applicant’s claim was solely based on his claim to be a Falun Gong practitioner. The Applicant himself acknowledged that he did not believe he would be persecuted because of his involvement in demonstrations in 1999.
For those reasons I do not accept the Applicant’s contention that there was such a particular social group of which the Applicant was a member and which the Tribunal was obliged to consider.
Accordingly, this ground is rejected.
Ground 3 – The Tribunal committed a jurisdictional error of law by asking itself the wrong question with regards to the ability to avoid persecution in circumstances where the Tribunal unreasonably reached a state of satisfaction about the Applicant’s “genuine commitment of the practice of Falun Gong.”
Counsel for the Applicant sought to give this ground the widest possible interpretation. Counsel for the Applicant contended that the Tribunal erred in failing to ask itself why the Applicant would modify his behaviour if he were to return to the PRC. Counsel for the Applicant contended that, because the Tribunal had not identified a particular social group, it could not ask itself the right question or deal with the claims before it. I assume Counsel was referring to the question ‘why would the Applicant modify his behaviour?’ when he refers to “the right question?” in that contention.
The Tribunal plainly considered the issues raised by the High Court of Australia in s395 in finding that the modification of behaviour, that it found was open to the Applicant, did not involve the suppression of an aspect of the Applicant’s beliefs or identity because the Tribunal found that he did not have a genuine commitment to the practice of Falun Gong in the sense that it is akin to a religious belief or an aspect of his identity.
If this submission is predicated on the Tribunal being required to identify a particular social group of which the Applicant was a member, in light of what I have said above in these Reasons about such a claim, the ground is rejected.
If it be that the ground is seeking to cavil with the findings of the Tribunal referred to in this section, then I am satisfied that those findings were open to the Tribunal on the material before it and there has been no jurisdictional error of the nature alleged by Counsel for the Applicant in this ground.
Accordingly, this ground is rejected.
Ground 4 – The Tribunal committed a jurisdictional error of law by failing to appreciate that in some circumstances persecution may include transgressions on the freedoms normally associated with democratic societies, including economic discrimination
Counsel for the Applicant contended that, having accepted that the Applicant may have financial problems when he returns, the Tribunal has misunderstood that persecution can include economic persecution. Counsel for the Applicant contended that having found that was not sufficient harm to the Applicant to amount to persecution in the Convention sense, the Tribunal failed to consider that it would be doubly difficult for the Applicant to return now that he is Falun Gong practitioner.
However, as referred to above in these Reasons, the Tribunal did not accept that the Applicant was a known Falun Gong practitioner, it found that he would not practice Falun Gong if he were to return to the PRC and would modify his conduct by seeking therapy to his injured arm other than by way of Falun Gong. In those circumstances, the Tribunal did not have to consider the question because it did not arise on the facts before it as found.
Accordingly, this ground is rejected.
Other claims
The Applicant also contended that the Tribunal failed to put to the Applicant Master Li’s teaching to which it had regard before concluding that the Applicant was not a Falun Gong practitioner. Again, there is no transcript, to support this contention.
Section 422B of the Act applies to this case and is an exhaustive statement of the requirements of natural justice to be afforded to the Applicant. Those requirements are contained in s.424A of the Act.
No claim was made by the Applicant, in his Amended Application filed 7 September 2005, based on a requirement in s.424A(1) of the Act that the core beliefs and teachings of Master Li be provided to the Applicant in writing inviting his comment at the hearing.
Master Li is the author of the book that the Applicant had told the Tribunal he had been reading for the last couple of weeks. The Tribunal did note, in the Findings and Reasons section of its decision, that the Applicant was unable to explain the concept of cultivation of Xing Xing which is described by Master Li as the top priority of a Falun Gong practitioner.
It has never been alleged by the Applicant in either his original application, Amended Application before this Court or the further amended application sought to be relied upon, nor in oral submissions in support of his application through his Counsel at the hearing before this Court, that there has been any failure by the Tribunal to comply with the requirements of s.424A of the Act. The Applicant has had the benefit of his case being considered by Counsel, who has settled two applications on his behalf. No such breach has been alleged before. It was not until Counsel for the Applicant was in reply that he sought to raise the issue. An adjournment was not sought by the Applicant in order to provide an opportunity to the First Respondent to meet such a claim.
In any event, in the circumstances, it is my view that the information contained in Master Li’s book was given to the Tribunal by the Applicant and is therefore excluded, pursuant to s.424A(3)(b) of the Act from the requirements of s.424A.
Accordingly, I do not have further regard to such a claim.
In reply, Counsel for the Applicant also sought to raise a further claim that the Tribunal should have put to the Applicant why he would modify his behaviour were he to return to the PRC. However, for the reasons referred to above in these Reasons as to granting leave to the Applicant to identify any further grounds, leave was refused to the Applicant to make submissions in respect of such a claim. Again, the Applicant did not seek an adjournment in order to properly identify such claim or provide an opportunity to the Respondent to meet such a claim.
In any event, the Tribunal is not obliged to put to the Applicant its thought processes. (Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592). It is for the Applicant to satisfy the Tribunal that based on the evidence and material before it, the Applicant has a well founded fear of persecution for a Convention related reason in accordance with ss.36 and 65 of the Act. (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 (“SJSB”) at [14] – [15]).
The Tribunal in this case was not so satisfied. The Tribunal considered the claims and evidence of the Applicant, made findings based the evidence and material before it and provided reasons for those findings.
Accordingly, I do not have further regard to such a claim.
Conclusion
There being no jurisdictional error identified by the Applicant in respect of the Tribunal decision, the decision is a privative clause decision, and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications before this Court are dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 8 December 2005
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