SZGTS v Minister for Immigration
[2007] FMCA 1587
•17 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1587 |
| MIGRATION – Natural justice not denied – Tribunal entitled to rely on country information – Falun Gong activities in Australia for the purpose of strengthening refugee claim – disregarded – Tribunal can accept or reject evidence as its thinks appropriate – weight a matter for the Tribunal. |
| Migration Act 1958 (Cth), ss.36(2), 91R(3), 420, 422B, 424A, 425, 476, 474 |
| Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 |
| Applicant: | SZGTS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1231 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 17 August 2007 |
| Date of last submission: | 17 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Ms H. Blackman of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1231 of 2007
| SZGTS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 17 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 16 March 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 28 December 1984 and claims to be from China (“the applicant”).
The applicant arrived in Australia on 8 August 2004 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 15 November 2004. In this application she claimed that she came to Australia on a false passport from Taiwan and that she is not safe in China because she is a practitioner of Falun Gong. The applicant claimed to have begun practising Falun Gong in 1998 through a friend at high school, whose mother was the organiser of a local Falun Gong practice station. The applicant claimed that after the ban on Falun Gong her classmate’s mother was arrested. The applicant claimed that her classmates discovered she was a Falun Gong practitioner and reported her to the school principal who recorded it in her student records. The applicant alleges that despite good marks she was refused a place at university because her school records indicated she was as a Falun Gong member. The applicant claimed that after getting a job as a kindergarten teacher the police visited her at work several times, eventually resulting in her termination from that position (Court Book “CB” 25-26).
This application was refused by a delegate of the first respondent on 10 February 2005 (CB 32-38).
On 15 March 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 39). By decision signed on 24 May 2005, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (CB 86). A subsequent application for judicial review was dismissed by this Court on 17 July 2006 (CB 191). The applicant then appealed to the Federal Court of Australia, and on 19 October 2006, the Court, by consent, remitted the matter to the Tribunal to be determined according to law (CB 109).
By decision signed on 16 March 2007 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 208-212) (highlighting added):
On the basis of her travel document which she submitted at the hearing on 21 February 2007 I am satisfied that the Applicant’s real name is Yunmei Chen who was born in Fuqing in 1984 and that she is a citizen of the People's Republic of China.
The Applicant claims to fear persecution in China because she is a practitioner of Falun Gong.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169‑70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
In the present case I am not satisfied that the Applicant’s claims to fear persecution in China are accurate, for the following reasons:
Harm suffered by the Applicant
In the first place, I am not satisfied in the accuracy of the Applicant’s claims to have suffered harm in China because of her involvement with Falun Gong.
The Applicant claims her Falun Gong involvement was discovered while she was at school and that she was publicly humiliated by the school principal and made to promise not to continue practising it. She was not admitted to a university because of her record of Falun Gong involvement. Following this, she claims she was arrested, detained for a week and beaten in May 2003 after police detected her practising Falun Gong in a park, and that she was also beaten by police in December of that year. She claims she taught Falun Gong exercises to the kindergarten children in her charge and was detected doing this by a policeman in February 2004 who reported the matter to the kindergarten principal, leading to her dismissal. She claims she lived in hiding after this and finally left China with a falsified Chinese passport, obtaining a falsified Taiwanese passport in Taipei which she used to enter Australia. Following her departure, she claims her family was harassed by police and kept for a period under house arrest.
As put to the Applicant at the hearing and subsequently in writing, these claimed incidents were not mentioned at all in her application for protection. The claim that she was humiliated by her school principal at a school assembly and forced to sign a written undertaking not to practise Falun Gong was not mentioned in that application, her application for review, her submissions of 16 May 2005 or her submission of 5 February 2007.
She did not mention in her application for protection or her application for review the incident in May 2003 in which she claimed to have been arrested, detained and beaten, and this was not raised by her until the first Tribunal hearing. The claim that she was beaten by police in December 2003 was not made at any point before her submission of 19 February 2007. The claim that her parents were harassed was first mentioned in the 5 February 2007 submission and the first reference to their house arrest was made in the submission of 19 February 2007.
At the second Tribunal hearing and in her written response to the Tribunal’s letter of 26 February 2007 the Applicant claimed, in effect, that she had not known what was in her application for protection and that she was made to sign it under pressure from an unscrupulous and incompetent migration agent. She claimed that although she told the agent everything that had happened to her he omitted to include important details. She claims the same agent prepared her application for review and her subsequent submissions of 16 May 2005. She also claims that she was very nervous at her first Tribunal hearing and only answered questions which were put to her, so that she was unable to communicate everything she wished to communicate.
I have considered these claims but I am not satisfied that they satisfactorily explain the delay in revealing the information identified above. I do not find it plausible that important and relevant incidents such as the Applicant’s arrest, detention and beating for having practised Falun Gong would not have been recorded by her agent, even making allowances for his alleged incompetence, had she ever mentioned them to him. Nor do I find it plausible that she can have been unaware until the time of her first hearing (and, in the case of some of the claimed incidents, until February 1997) that important and relevant incidents had not been recorded in the documents submitted to the Department and the Tribunal. Having reviewed the audio recording of her first Tribunal hearing I am not satisfied that she was denied an opportunity to present her claims or that she did not have an opportunity to explain what had happened to her in China. I do not find it plausible that if her family had suffered police harassment and house arrest after her departure from China she can have been unaware of this fact until a month before the second Tribunal hearing as she asserted at that hearing.
These incidents, had they occurred, could reasonably be expected to have been dramatic and memorable for the Applicant and their relevance to her claim to be at risk of persecution from the Chinese authorities is clear. Their belated and progressive appearance in her account raises strong doubt as to their truth. I am not satisfied that the Applicant has provided satisfactory explanations for this delay and I am not satisfied as to the accuracy her claims concerning the incidents.
My concerns in this area are further strengthened by the Applicant’s claim that a plainclothes policeman observed her teaching Falun Gong to her kindergarten students but took no action beyond reporting the matter to the kindergarten principal. As put to her at the second Tribunal hearing and in writing, the independent country information indicates that, following the banning of Falun Gong in 1999 the Chinese authorities have adopted harsh and highly repressive measures against individual practitioners. I find it implausible that a police officer would have taken no direct action against the Applicant in the circumstances she describes. At the hearing the Applicant suggested that he may have wished to avoid alarming her students. In her response to the Tribunal’s letter of 26 February 2007 she argues that, at local level, enforcement of the government’s repression of Falun Gong is left to the discretion of individual police. I have considered both these reasons but I am not satisfied that they satisfactorily explain why a police officer witnessing the Applicant committing so serious an offence (in the eyes of the Chinese authorities, at least) as teaching Falun Gong to young children would not even have approached her to learn her identity. On the basis of the information before the Tribunal I am not satisfied that this incident occurred.
I reject the Applicant’s evidence concerning these incidents of harm. Given the importance of the claims for her claimed fear of persecution in China I am not satisfied that reliance can be placed on her other claims to have suffered harm in China. I also find that this raises doubt as to the reliability of her evidence in other areas.
Falun Gong involvement in China
The Applicant claims to have been introduced to Falun Gong by a classmate in 1998 and to have practised in private and in public up to and after the outlawing of the faith in 1999.
The only substantiation for the Applicant’s claim to have been a practitioner in China is the letter purportedly written by her friend and colleague at the kindergarten, Yun Qing Chen. This letter refers to her having taught Falun Gong movements to students and to have suffered dismissal and police beating. Its tone is notably expository and does not give the appearance of a normal communication such as could be expected between friends. As put to the Applicant at the hearing on 21 February 2007, it states things which would have been so well known to her, had they happened, as not to require mentioning. The Applicant acknowledged at the hearing that the letter had been written for the purpose of helping her with her Tribunal hearing. While I accept that this does not necessarily demonstrate that the things mentioned in the letter are untrue, given its provenance I am not satisfied that any significant evidentiary weight can be placed on it and I am not satisfied that the Applicant’s claims in this area are much more than simple assertions.
The Applicant’s claims about her Falun Gong involvement in China are closely entwined at a number of points with her claim to have suffered harm for this reason. Given that I am not satisfied that she did in fact suffer the harm she claims I am not satisfied as to the accuracy of her assertions that she practised Falun Gong while she was in China.
Falun Gong involvement in Australia
At both her Tribunal hearings the Applicant said she only began to practise Falun Gong in public, in Parramatta, four or five months after arriving in Australia in August 2004 but had practised it at home. She gave a number of reasons for this, including that Chinese government spies monitored Falun Gong activities, that she had been too busy making practical arrangements, that she did not speak English, that she did not know how to use public transport and that she did not know what view Australia had about Falun Gong practice. She said, at the second hearing, that practising in private was equivalent to practising in public.
Having considered these claims I am not satisfied that they satisfactorily explain the Applicant’s failure to join with other Falun Gong practitioners in public practice. They are inconsistent with her claims to have been a committed Falun Gong practitioner in China who risked and suffered serious harm for publicly practising Falun Gong and teaching Falun Gong movements to her students. They are inconsistent with her actions in obtaining a travel document in her own name from the Chinese Consulate-General in Sydney (submitted by her at the hearing) Such conduct could reasonably be expected to reveal her name and identity to the very authorities she claims are monitoring Falun Gong practitioners. I find it implausible that having fled to Australia in order, as she claims, to escape persecution for being a Falun Gong practitioner she would be unsure as to Australian attitudes to Falun Gong practice or that she could not have quickly found out that there were no restrictions on that practice. I find it implausible that competing priorities, ignorance of public transport or a lack of English would have prevented her, had she been a dedicated Falun Gong practitioner, from joining other practitioners in public soon after her arrival. Her claim about the equivalence of practising Falun Gong in private and in public was in some contrast with her response later in the hearing to the effect that Master Li taught the benefits of practising in public. I am not satisfied that the explanations offered by the Applicant for her delayed public involvement with Falun Gong in Australia are credible.
The Applicant’s claims concerning her Falun Gong practice in Australia are supported by the evidence of the two witnesses at the second Tribunal hearing and a number of letters. The great bulk of this evidence dates from the time of her detention at Villawood immigration detention centre in April 2005. The only two references to any earlier involvement are the letter from You Qin Liu of 25 November 2006 stating that he met the Applicant ‘more than a year’ previously and practised Falun Gong with her and the letter from Ai Juan Ye who speaks of practising Falun Gong with her in February 2005.
I accept that the Applicant did have contact with Falun Gong practitioners when she was placed in immigration detention in April 2005. The evidence is far less compelling for her contact with Falun Gong at any point before this, however, and her clear uncertainty about the practise site at Parramatta, revealed in her responses at the first Tribunal hearing, casts strong doubt on the accuracy of her claim. Given my concerns about the accuracy of her evidence in other areas I am not satisfied that she had any contact with Falun Gong practitioners in Australia until she was placed in immigration detention in April 2005.
I accept, from her responses, that the Applicant is familiar with basic aspects of Falun Gong theory. I accept that, having involved herself with the faith while in immigration detention she may have continued that involvement to some degree following her release. However, having regard to the timing I am not satisfied that her reason for involving herself with Falun Gong has been other than to strengthen her claim to be a refugee. While I accept that the Applicant may have been present at Falun Gong protests I am not satisfied that this was for reasons other than strengthening her protection case. Accordingly, consistent with the provisions of s.91R(3) I have disregarded this conduct in considering her claims to be a refugee.
Future harm
As noted, I am not satisfied that the Applicant was a Falun Gong practitioner in China or that she or members of her family ever suffered any harm for this reason. There is no reason to believe that she would face harm if she were to return to China because of anything that occurred prior to her departure. I accept that since arriving in Australia she has involved herself to some degree with Falun Gong practitioners and activities but I am not satisfied that her reason for doing so was other than to strengthen her claim to be a refugee. I am not satisfied that she would seek to practise Falun Gong or involve herself in Falun Gong activities if she returned to China and I am not satisfied that this would flow from any fear on her part of the consequences of doing so. Having regard to the nature of her Falun Gong activities in Australia I am not satisfied she would be targeted by the Chinese authorities for anything she has done here.
Among other claims in her submissions of 16 May 2005 the Applicant raised, as a separate ground for fearing harm in China, the claim that she would face severe punishment as a result of having left illegally on an illegal passport. This was the only mention of the claimed fear, and she did not raise it in either of the Tribunal hearings or in later submissions. Given that she was able to obtain a travel document from the Chinese Consulate-General in Sydney in her own name in August 2005 (which she submitted at the hearing) I am not satisfied there is any evidence that the Chinese authorities either know or are concerned about her involvement in passport irregularities in the past. I am not satisfied that this claim is more than simple speculation.
Summary
On the basis of the evidence before the Tribunal I am not satisfied there is a real chance that the Applicant would suffer harm in China because of involvement with Falun Gong, either in China or Australia, or because she left China using a falsified passport in 2004. I am not satisfied that she has a well-founded fear of persecution for a Convention reason should she return to China now or in the reasonably foreseeable future and I am not satisfied that she is a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In her application, the applicant set out three grounds as follows:
(1)There was an error of law in the Tribunal’s decision constituting a jurisdictional error. There was a procedural error in the Tribunal decision constituting are absence of the (sic) natural justice.
(a) Legal effect of statutory provisions
A jurisdictional is a narrow category of legal error. In Craig v South Australia (1995) 184 CLR 163 at 179 Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
If an administrative Tribunal fall into error of law, which cause it to identify a wrong issue to ask itself a wrong question, to ignore relevant material to rely on irrelevant material at least in some circumstance to make an erroneous finding or reach a mistake conclusion and the Tribunal’s exercise or purported exercise of power is there by (sic) effected (sic) it exceeds its authority or powers , such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal, which reflect it.
(2)The Tribunal’s member didn’t give the Applicant any consideration as to whether the circumstances of the procceding (sic) were such that it should rely on the country information make such conclusion to the Applicant not to grant the protection visa.
(a)It is possible to contend that the RRT did not determine my implied claim of persecution as a member of Falun Gong practitioners active in Australia i.e. in this respect, I note that the bulk of my claims referred to being persecuted because of the commitment of me as a Falun Gong practitioner also failed to deal with me (sic) fear of persecution as a member of Falun Gong practitioner targeted for persecution.
(3)The RRT in determining whether the applicant is a Falun Gong practitioner, embanked on a task in which it’s not an export (sic). The Tribunal’s member determined the issue by reference to the applicant’s lack of knowledge of Falun Gong and their significance, this is amounts to a jurisdictional error.
(a)The applicant has been provide the evidence about my Falun Gong activities in Australia but the Tribunal’s member did not take account of the applicant protection visa.
Findings of the Court in relation to the grounds in the application
Ground one alleges procedural error and a denial of natural justice. The ground includes a passage from Craig v State of South Australia (1995) 184 CLR 163 to the effect that if a Tribunal falls into error of law it exceeds its authority or powers; that results in jurisdictional error which invalidates consequential orders or decisions. No error of law by the Tribunal has been established in this case for the reasons set out below.
The second allegation is a denial of natural justice. Division 4 of Part 7 of the Act provides an exhaustive statement of the natural justice hearing rule applicable to this matter (s.422B). The Court finds no breach of that Division. Specifically s.424A was complied with by letter dated 26 February 2007 (CB 175); s.425 was complied with by letter dated 17 January 2007 (CB 115) and the applicant appeared at the hearing on 21 February 2007 (CB 194). A denial of natural justice has not been established. Ground one is rejected.
Ground two alleges that the Tribunal did not consider whether, in the circumstances, it should rely on country information to decide not to grant a protection visa.
The Tribunal, in conducting a review “may get any information that it considers relevant.” In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court of Australia decided at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The Court accepts the submission for the first respondent that Ground two misconceives the basis on which the Tribunal’s decision was made; that is, it was based on a rejection of the applicant’s central factual claims in information given to the Tribunal by the applicant. The decision of the Tribunal shows that most of the applicant’s claims were rejected. The Tribunal set out its reasons for doing so. There can be no objection to the Tribunal relying on country information: NAHI (ante) at [11]: The weight the Tribunal gives to country information is a matter for the Tribunal as part of its fact finding function: NAHI (ante) at [11]. Ground two is rejected.
Ground two particular (a) alleges a failure to determine the applicant’s “implied claim” of persecution as a member of Falun Gong practitioners active in Australia. The Court rejects this particular. It is misconceived. The applicant expressly claimed to fear persecution because of Falun Gong activities in China and Australia. Both claims were dealt with extensively and rejected at CB 210-212.8. This particular is rejected.
Ground three alleges that the Tribunal is not an expert in Falun Gong and therefore could not determine whether the applicant is a Falun Gong member. The Tribunal was empowered to make that determination as part of its fact finding exercise. The applicant gave evidence about her Falun Gong activities. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
The Court refers to the following passage in Chen Xin He v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, R.D. Nicholson J, 23 November 1995) at [24]:
It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.
The Court does not have the power to conduct a review of the merits. This claim is rejected.
Ground three particular (a) complains that the Tribunal did not take into account, the evidence about the applicant’s Falun Gong activities in Australia. As stated above, the Tribunal gave the applicant’s evidence about her Falun Gong activities in Australia extensive consideration (CB 211.1 – 212.8) but concluded that “I am not satisfied that this was for any reason other than strengthening her protection case . Accordingly, consistent with the provisions of s.91R(3) I have disregarded this conduct in considering her claims to be a refugee” (CB 212.2). Once the finding of fact was made, s.91R(3) required that conduct to be disregarded. As stated in SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 per Mansfield J at [53] and [54] :
Section 91R(3) directs the Tribunal to disregard any conduct engaged in by the applicant in Australia unless he comes within s.91R(3)(b) .... The reservation in s.91R(3)(b) requires the applicant to have satisfied the Tribunal (on the review, standing in the place of the respondent) ….”
Section 91R(3)(b) therefore also applies to the deliberations of the Tribunal. S.91R(3)(b) was not breached. Ground three particular (a) is rejected.
The applicant’s written submissions allege that the Tribunal “did not deal with the question presented by s.36(2) of whether Australia owed protection obligations to the applicant and cites Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 at [89]. Paragraph [89] of that decision is as follows:
The tribunal did not deal with the question presented by s.36(2) of the Act – did Australia owe protection obligations to the appellants? It either did not correctly apply the law to the facts it found, or its decision involved an incorrect interpretation of the applicable law. The ground of review specified in s.476(1)(e) of the Act was made out.
The Court finds that the Tribunal dealt specifically with the question presented by s.36(2) at CB 212.9 in finding that “the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.” It has now been shown that the Tribunal did not correctly apply the law to the facts as found, or that its decision involved an incorrect interpretation of the law.
Oral submissions
In oral submissions to the Court the applicant raised a number of issues. The applicant complained that the Tribunal did not accept photographs or photographic material tendered by her. It is a matter for the Tribunal which evidence it accepts or rejected in the circumstances: Lee (ante). The Tribunal had regard to the photograph at CB 199.3 but found that it was impossible to distinguish any details of the person shown. In such circumstances it is for the Tribunal to decide what weight it gave to the evidence: Lee (ante).
The applicant then complained that the Tribunal did not accept that she was a genuine Falun Gong practitioner. The Tribunal’s findings of fact are not subject to review.
The applicant complained that the Tribunal considered that she joined Falun Gong to support her application. Again, that was a finding of fact by the Tribunal that is not subject to review.
The applicant then stated she practiced Falun Gong in public, and if she goes back to China she will face persecution. That claim was specifically rejected by the Tribunal, which did not accept that she was a Falun Gong practitioner who would be persecuted if she returned to China. Those findings are not subject to review.
The applicant claimed that the Tribunal did not consider that a genuine Falun Gong practitioner who participates in Australia will come to the attention of China, and if she returns she will face persecution. The Tribunal found as a matter of fact that the applicant was not a genuine Falun Gong practitioner, therefore, this ground is not relevant to this review.
The applicant claimed that the Tribunal had no basis to say she would not face persecution if she returned to China. Again, these were findings of fact by the Tribunal that are not subject to review.
The applicant sought support from the decision in SZGYT v Minister for Immigration & Anor [2007] FMCA 883. That decision is not relevant here. In that case, the evidence was that the Falun Gong activities became genuine over time. That situation does not apply to this case. The Tribunal here assessed all the applicant’s Falun Gong activities in Australia and made its s.91R(3) finding in relation to all that conduct, and not just her conduct or intent at the time of joining Falun Gong.
As for Appellant S395/2002, in that case it was found that the Tribunal failed to consider the likely harm if the applicants returned to Bangladesh. It was said the Tribunal must determine how the applicants would then live on return to their country. The Tribunal here considered the future harm according to the principle in Appellant S395/2002. That consideration is set out at CB 212.4 as follows:
I am not satisfied that she would seek to practise Falun Gong or involve herself in Falun Gong activities if she returned to China and I am not satisfied that this would flow from any fear on her part of the consequences of doing so. Having regard to the nature of her Falun Gong activities in Australia I am not satisfied she would be targeted by the Chinese authorities for anything she has done here.
The applicant complained that not joining Falun Gong for four to five months after she came to Australia does not mean she was not a genuine Falun Gong practitioner. The Tribunal made a finding of fact that she is not a genuine Falun Gong practitioner. That finding of fact is not subject to review. The applicant restated that she did not join Falun Gong to support her application. The Tribunal found that that was her reason for joining Falun Gong: that finding of fact is not subject to review.
As for the photographs, the applicant stated that it was not her who patched everything together, but that they came from the internet. The Tribunal can accept or reject evidence as it thinks appropriate in the circumstances: Lee (ante). The Tribunal was entitled to reach the conclusion it did about the photographs.
The applicant stated that the Tribunal Member accepted that she was a Falun Gong practitioner and would be persecuted if she returned to China. The applicant referred to the top of page 209 for that proposition. As pointed out to the applicant by the Court, the passage at the top of page 209 states:
In the first place, I am not satisfied in the accuracy of the applicant's claims to have suffered harm in China because of her involvement with Falun Gong.
The Court rejects the application’s assertion.
The applicant stated that she was very scared to go back to China. The Tribunal made a finding of fact that it was not satisfied that the applicant has a well‑founded fear of persecution if she returns to China. That passage appears at CB 213.8.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 18 September 2007
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