SZHSQ v Minister for Immigration
[2006] FMCA 538
•8 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHSQ v MINISTER FOR IMMIGRATION | [2006] FMCA 538 |
| MIGRATION – Application to review a decision of the Refugee Review Tribunal – where applicant did not attend Tribunal hearing – whether breach of s.424A – whether breach of s.426A – whether the Tribunal erred by failing to consider whether persecution would arise by reason of the applicant being forced to renounce or stop her Falun Gong beliefs – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425, 426A |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 AppellantS395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1426 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 |
| Applicant: | SZHSQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | SYG 3535 of 2005 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 10 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr S E J Prince (pro bono) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms R A Pepper |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3535 of 2005
| SZHSQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) made on 22 March 2001 and handed down on 18 April 2001 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal to these proceedings.
The applicant, a citizen of China, arrived in Australia for the first time in October 1996 on a student visa. On 25 August 2000 she lodged an application for a protection visa. On 4 September 2000 a delegate of the respondent refused the protection visa application and on 3 October 2000 the applicant sought review of that decision.
The amended application
The applicant relies upon her amended application filed 10 April 2006. The amended application raises three grounds of review:
a)The Tribunal fell into jurisdictional error by failing to consider whether persecution would arise by reason of the applicant being forced to renounce or not practice her Falun Gong beliefs.
b)The Tribunal breached s.424A of the Migration Act 1958 (Cth) (the Act) by failing to provide to the applicant certain information.
c)The Tribunal fell into jurisdictional error by failing to consider whether to exercise its discretion to adjourn the Tribunal hearing pursuant to s.426A of the Act in circumstances where the applicant failed to attend the hearing.
The applicant’s claims
In a written statement attached to her protection visa application the applicant claimed:
I am a Falun Gong Practitioner. As far as I know all Falun Gong practitioners are suffering persecution in China. Many of them have been jailed, many have been detained. For those practitioners who might not be detained or arrested, they might be mentally suffering from discrimination, being dispelled from employment, administration punishment etc.
I started practicing Falun Gong in May 1998, soon after I attended Falun Dafa Australian Experience-sharing Convention. I did not have a lot of things to do on that day, so persuaded by a friend of mine, who is also a practitioner, I went to the conference. I did not expect that I was really moved by the people at the conference. They were serene and modest, bringing me a completely new feeling. I talked with a practitioner who claimed she had suffered migraine for more than 20 years but after practicing Falun Gong her migraine disappeared. Another practitioner showed tempers to others since then.
I did feel doubtful about the statements of those practitioners. But also urged by my practitioner friend, I started learning. I insist on going to Darling Harbour every Saturday, read books of Master Li Hong Zhi, and obey with laws of Zhuan Falun. Gradually, I found myself became more open and clear than before. My health became better. I was quite east to catch up flu but now I won’t be affected even in one or two years. The most important is my mind has been cultivated and enlighten.
In May 1999, I attended another Falun Dafa Australian Experience-sharing Convention. On 13 May 2000, I participated in the first World Falun Dafa Day in Australia. Together with approximate 300 other practitioners, I walked from Hyde Park to Darling Harbour. We help up banners, such as 8th Anniversary of Falun Dafa and “World Falun Dafa Day”.
At the time that I cannot understand why Falun Lun Dafa is banned in China, I also fear that I would be subject to persecution if I go back to China. Because I have survived by Falun Dafa and I do not know if I still can survive without it.
Those facts about Falun Gong practitioners’ sufferings have shocked the world and also puzzled the world. If the Chinese people are granted human rights, why those things are still happening? I am not a political dissident. What I need is to live without harming others and without being harmed by others. I love peace. However, if I go back to China, how can I obtain a moment of peace? I would either give up practicing Falun Gong, or being jailed as many other Falun Gong practitioners. I do not want either of them.
The Tribunal decision
The Tribunal decision is reproduced at pages 61 to 67 of the Court Book. At page 64 the Tribunal set out the following claims which appear in the applicant’s statement:
In her original application the Applicant states that she is a Chinese citizen who arrived in Australia for the first time in 1996. She states that she fears that she may be persecuted if she returns to China as she now practices Falun Gong. She is aware that many Falun Gong practitioners in China have been arrested.
The Applicant started practising Falun Gong in Australia in May 1998. She attended a Falun Dafa Australian Experience-sharing Convention. She was taken along by a friend. She was persuaded that Falun Gong would be good for her health and it was.
She insists on attending Darling Harbour each Saturday to perform exercises. She reads books by Li Hongzhi the founder of Falun Gong, and she obeys the laws of Falun Gong. She has attended other public outings of the Falun Gong organisation in Australia.
The Tribunal on pages 64 to 65 of the Court Book noted the following passages from the Department of Foreign Affairs and Trade cable dated 9 November 1999 (DFAT):
Country information indicates that the Chinese government campaign against the movement has targeted the leaders and organisers of Falun Gong and those with some degree of influence or recognition (DFAT update CX 38577, 9 November 1999).
Chinese authorities are likely to take a particular interest in adherents who are members of the Communist Party, government employees or workers in state owned enterprises, and may require them to renounce Falun Gong or be subject to further government action.
“Ordinary” practitioners would reasonably be expected to include rank and file followers who perform Falun Gong practices in the belief that it will improve their health. It would also embrace low-level political activists who have not held leadership positions, have not been involved in organising protest activities in support of the movement and have not engaged in activities which would place them at risk of detention or other forms of serious harm – notwithstanding that they may have participated in some form of public protest.
Rank and file followers who do come to the attention of the Chinese authorities through their participation in public demonstrations or by being named by others are likely to be lectured on the error of their ways and the social damage caused by Falun Gong, and urged to repent their actions and renounce their beliefs. Penalties inflicted depend on the adherent’s degree of co-operation with the authorities: compliance would lead to quick release; refusal to cooperate would almost likely lead to a period of detention, usually non-judicial (re-education through labour) (DFAT update CX 38557, 9 November 1999).
The Tribunal noted that in a letter dated 8 February 2001 the applicant was advised that the Tribunal had looked at all of the material relating to her application but would not make a favourable decision on the basis of that information alone. The letter invited the applicant to submit further evidence and to attend a hearing on 22 March 2001 to give evidence. Despite returning a Response to Hearing Invitation indicating her wish to attend the hearing the applicant failed to appear and no further evidence was submitted in support of her application.
The Tribunal was satisfied that the applicant is a citizen of China.
The Tribunal noted that the applicant’s fear of persecution may have been genuine but there was insufficient information for the Tribunal to accept that her claims of persecution were genuine.
In any event the Tribunal was not satisfied that any such fear of persecution was well founded. It noted that not all practitioners of Falun Gong were at risk of persecution in China, and that factors such as the position and status of the practitioner and the manner in which Falun Gong is practiced may influence the view of the authorities.
The Tribunal also noted that it was not apparent whether or not the applicant was a Party member or government official or leader or organiser of Falun Gong and further it was not clear how the applicant would practice Falun Gong if she were to return to China.
Accordingly, on the very limited information available the Tribunal was not satisfied that the applicant would be at risk of persecution were she to return to China.
I now propose to deal with each of the grounds of review as they appear in the amended application.
Ground 1
The first ground relied upon by the applicant alleges that the Tribunal fell into jurisdictional error by failing to consider whether the applicant being forced to renounce or cease practicing her Falun Gong beliefs would amount to persecution. Mr Prince of Counsel argued that the Tribunal misconceived the applicant’s true claims given that the applicant’s claim was that if she returned to China she would have to conceal or renounce her Falun Gong beliefs or be detained. Further, it was argued for the applicant that the Tribunal limited its consideration to whether there was a real chance that the applicant would be detained or imprisoned upon her return but dismissed that possibility by reference to an implied assumption that the applicant would not openly practice Falun Gong upon her return to China and so not be exposed to non-judicial detention. Thus the Tribunal was said to have erred in a manner similar to the decision in AppellantS395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, at [35], [43], per McHugh and Kirby JJ. That case involved a finding by their Honours that a homosexual male in Bangladesh who was required to conceal his homosexuality or practice it in a discreet way is no less persecuted than a person who does not do so and suffers harm by reason of following his or her sexuality openly. It was contended for the applicant that the same parity of reasoning applies in the present case, namely the failure by the Tribunal to consider the impact upon the applicant’s ability to pursue her own beliefs within China reveals an error in understanding the nature of persecution for the purposes of both the Act and the Convention.
In WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [23], the Full Court of the Federal Court comprising RD Nicholson, Jacobson and Bennett JJ said:
To come within S395/2002 the appellant would have to demonstrate that the Tribunal’s view of persecution was that persecution does not exist where an asylum seeker can be expected to take reasonable steps to avoid adverse consequences by hiding the fact that he or she is of a particular religious, ethnicity or social group. The Tribunal did not make such a finding. Its only relevant finding was that relating to discrimination in education and employment generally. Its further finding that the appellant had not been exposed to such discrimination was not predicated on a finding of avoidance. Such findings cannot, as the appellant urged, be inferred from the absence of a denial by the Tribunal of evidence recited. Furthermore, the opening sentences in the passage quoted at [9] above is a positive finding that the Tribunal did not accept that the evidence had the effect the appellant contends should have been found.
In my view the decision in WAJW means that Ground 1 must fail. In its decision the Tribunal makes no finding that the applicant was a practioner of Falun Gong and that she practiced that faith in a particualr way. Nor is there any finding that upon the applicant’s return to China she will practice in a particualr way. It is apparent the Tribunal was unable to make such findings because of the applicant’s non-attendance before the Tribunal and the lack of information to support her claims.
Ground 2
The second ground relied upon by the applicant alleges that the Tribunal breached s.424A of the Act by failing to provide certain information to the applicant.
Section 424A relevantly provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non‑disclosable information.
It was submitted for the applicant that there were two pieces of information that were not the subject of s.424A notices. The first was the “future practice information” and the second was the “little support information”. This ground is misconceived. There was no future practice information or little support information. The Tribunal relied primarily on the DFAT cable. It had before it a series of claims of persecution not supported by the evidence of the applicant herself or by any further material.
I have had regard to the recent decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 and to the procedures followed by the Tribunal. I note that in its decision the Tribunal refers to the applicant’s claims in her original protection visa application and her written statement. However it is plainly apparent that that information was not the reason or part of the reason for the Tribunal affirming the delegate’s decision. Rather there was a lack of information (SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29-3], per Allsop J; SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801 at [22], per Allsop J; SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1426 and affirmed on appeal in [2006] FCA 238 at [12], per Allsop J.
Accordingly, this ground fails.
Ground 3
The third and final ground relied upon by the applicant alleges that the Tribunal fell into jurisdictional error by failing to consider whether to exercise its discretion to adjourn the proceedings pursuant to s.426A of the Act in circumstances where the applicant did not attend the hearing.
The Tribunal noted at page 65 of the Court Book that the applicant had been advised of the hearing date and that she had confirmed her attendance.
Section 426A provides that:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
Section 426 is related to s.425 of the Act. The Tribunal is empowered to make a decision on review without taking any further action where an applicant does not appear. The Tribunal also has the power to adjourn the application and reschedule the applicant’s appearance.
It was submitted for the applicant that the Tribunal misunderstood or misapplied the statutory regime is imposed upon it by the Act. There is no evidence before the Court that the Tribunal did not understand that it was exercising its power under s.426A to proceed with the making of the decision without giving the applicant any further notice. The applicant was advised in the Tribunal letter of 8 February that if she failed to attend the hearing or if a postponement was not granted the Tribunal may proceed to make a decision without further notice. This is precisely what it did whilst alluding to the fact that there was no appearance and no further evidence submitted by the applicant. In those circumstances this ground fails.
As no jurisdictional error is apparent the application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 8 May 2006
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