SZHYL v Minister for Immigration
[2007] FMCA 979
•5 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 979 |
| MIGRATION – Merits not subject to review – application dismissed. |
| Migration Act 1958 (Cth), ss.48A, 91R, 474 |
| Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Multicultural and Indigenous (1994) 34 ALD 347 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZHYL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 634 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 5 June 2007 |
| Date of last submission: | 5 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr D. Jordan |
| Solicitor for the Respondents: | Ms E. Warner-Knight of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 634 of 2007
| SZHYL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 23 February 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”) handed down on
30 January 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 has not filed an amended application.
The applicant was born on 22 September 1966 (according to the applicant’s passport) and claims to be from and of Chinese ethnicity and Yiguandao faith.
The applicant’s wife and daughter remain in China.
The applicant arrived in Australia on 6 December 1997 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 30 December 1997. In a statutory declaration attached to the application (CB 4), the applicant claimed that he arrived in Australia on a business trip with two companions: a woman from his work unit (identified in the Tribunal’s decision record as “B”), and a man (“ZL”), the leader of the group and a representative of Liaoyang City Foreign Trade and Economic Relations. The applicant claimed that while in Australia he visited a Weide Temple “out of curiosity” with B and ZL, and that “during and after the visit, I aired my views…on the doctrines of this particular religion…Between the three of us, I talked about my intention to join the religion.” The applicant claimed that ZL later informed him that “this religion is actually Yiguandao, a counter-revolutionary religious sect banned in China.” The applicant claimed that ZL “warned me that he had told his leaders of my activities here and that I should be responsible for my association with the temple.” The applicant later discovered that followers of Yiguandao had been killed and imprisoned in China, and, fearing punishment by the authorities, the applicant refused to return to China with ZL. The applicant claimed that ZL has since made an official report to the authorities “who are determined to punish me when I return” (CB 4-5).
This application was refused by a delegate of the first respondent on
22 May 1998 (CB 42-5), however, the applicant was not validly notified of that decision until 18 May 2005 (CB 79-80) (The Court notes that a second protection visa application was lodged by the applicant on 8 December 2000. Section 48A of the Migration Act provides that a person who has made an application for a protection visa that has been refused, may not make a further application for a protection visa. Section 48B provides that if the Minister thinks it is in the public interest to do so, the Minister may determine that s.48A does not apply to a non-citizen. No such determination was made in this case. The second application was invalid by reason of s.48A.
The applicant filed an application for review with the Refugee Review Tribunal on 15 June 2005 (CB 81-4), and by decision signed on
10 November 2005 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (CB 106). An application for judicial review was subsequently filed with this Court. On 21 September 2006 the Court, by consent, quashed the decision of the Tribunal and remitted the matter to the Tribunal for rehearing and determination according to law (CB 129).
By decision signed on 8 January 2007 the Tribunal, differently constituted, affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. In considering the applicants claims, the Tribunal found (CB 190-193) (highlighting added):
The applicant claims to fear persecution in China because of his association, in Australia, with the Yi Guan Dao religion and with Falun Gong. He claims that he joined Yi Guan Dao soon after arriving in Australia, and that that became known to his superiors and other authorities in China, and that he later became involved in Falun Gong.
On the basis of the applicant’s passport, and his own assertions, the Tribunal accepts that he is a citizen of China.
When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his or her claims. However, it is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) FCR 220).
The applicant claims that he travelled to Australia for a genuine business purpose. However, his oral evidence to the Tribunal about the nature of his business activities in Australia was very unconvincing. The Tribunal does not accept that three people would be sent to Australia to explore business options with only one company without first ascertaining in some detail the quality and suitability of the products they were to examine, and their price. The applicant’s witness, YL, told the Tribunal that he was aware that the applicant was coming to Australia and was expecting to hear from the applicant. The Tribunal has noted the applicant’s explanation that his mother made contact with YL because she was worried about him, but does not accept it in the circumstances of his unconvincing evidence about his alleged business activities in Australia. The Tribunal finds that the applicant came to Australia with the intention of making contact with YL and not for the business reasons he claims.
The applicant claims to have joined Yi Guan Dao after his arrival in Australia. He submitted to the Department a card as evidence of his membership. As pointed out in the Tribunal’s letter of 27 November 2006, that card is dated 28 December 1997. On its face, that indicates that the applicant joined Yi Guan Dao on that date. In other evidence, the applicant has claimed that he joined Yi Guan Dao on the first day he visited the Temple, only a few days after arriving in Australia. However, the applicant has presented conflicting evidence about the first day he visited the Temple. In his initial statement of claims, he asserted that LZ went to the temple on the first day, and he has again made that claim in his most recent submission. His oral evidence, however, was that LZ did not visit the temple. His witness, YL, also gave oral evidence that only the applicant and B attended, the inference being that LZ did not. The Tribunal prefers to accept the oral evidence of the applicant and YL on this point and finds that, on the day the applicant first visited the temple, he was accompanied by B on that journey but not by LZ.
In his most recent submission, the applicant claims that there was a distinction between the time when he took part in the “oath-making ritual” and the time when he was “baptised” and instructed about the “Three treasures.” The Tribunal does not accept this distinction. His evidence at the first Tribunal hearing was that he was given a card on the first day. The clear import of his evidence at that first hearing was that he was given the relevant instruction on the day he joined the organisation.
In all the circumstances, the Tribunal does not accept that the applicant went to the temple in early December 1997. It finds that he first went to the temple on 28 December 1997 and that he went through a ceremony to join Yi Guan Dao on that day. In so finding, the Tribunal rejects the evidence of YL that the applicant first attended the temple in early December 1997.
As put to the applicant in the Tribunal’s letter of 27 November 2006, the applicant’s protection visa application forms were initially dated 22 December 1997, though the date on application form B was later overwritten as “29 December 1997.” The Tribunal infers from this that, though form B may have not been signed until 29 December 1997, the two forms were prepared on or before 22 December 1997. In form C, the date of which was not changed, the applicant referred to his religion as being “Yi Guan Dao.” While the Tribunal accepts that, by the time the application was lodged, the applicant had gone through the ceremony, it finds that the application was prepared in anticipation of this.
In all the circumstances, the Tribunal finds that the applicant came to Australia with the specific intention of linking up with YL and going through a ceremony to associate himself with Yi Guan Dao. It finds that he did not come to Australia for genuine business reasons. It finds that he came to Australia for the express purpose of creating a situation which might enhance claims for protection. While the Tribunal accepts that since then, the applicant has maintained an association with Yi Guan Dao, it finds he has done so to maintain his claim for protection and not for genuine reasons. In these circumstances, the Tribunal is required by the provisions of s.91R(3) of the Act, to disregard his conduct in associating himself with Yi Guan Dao.
In his most recent submission to the Tribunal, the applicant has said that all the details of his purported second application for protection on the basis of an association with Falun Gong were completed by a “solicitor” and that all he had to do was sign a form and pay some money. At the first hearing, he was unable to talk about the purpose and intention of the various Falun Gong exercises. At the second hearing, the applicant demonstrated some general knowledge about Falun Gong, but only to the extent of information which is easily obtainable from publicly accessible sources such as the Internet.
The Tribunal has made allowance for the fact that the applicant claimed to have an injured arm on the day of the second hearing, and was therefore not able to demonstrate the exercises fully. However, he was unable to explain the movements of the second exercise. When he demonstrated the opening position of the third exercise, a position which the Tribunal selected because it would not have placed any strain upon his arms, the applicant showed what was the version of the position stipulated for female practitioners. Had the applicant been a genuine Falun Gong practitioner, the Tribunal would have expected him to have had a greater knowledge about Falun Gong and not to have made such a fundamental error.
The Tribunal considered significant that, when asked about Falun Gong at the second hearing, the applicant said that he had not thought he would need to show much knowledge about Falun Gong because he was already “black” and did not think he would need it.” The context of these comments leads the Tribunal to conclude that he had his application for protection in mind when he started to associate himself with Falun Gong. In these circumstances, the Tribunal is not satisfied that the applicant engaged in conduct of associating himself with Falun Gong in otherwise than for the purpose of strengthening his claim to be a refugee. Indeed, the Tribunal is confident that his conduct was undertaken for that specific purpose, and not because of any genuine interest in Falun Gong. As with his association with Yi Guan Dao, the Tribunal is required by the provisions of s.91R(3) of the Act, to disregard his conduct in associating himself with Falun Gong.
Even without the effect of s.91R(3), having formed the view that the applicant does not have any genuine interest in Falun Gong or Yi Guan Dao, the Tribunal is not satisfied that he would have any reason to continue such associations were he to return to China or that he would come to unfavourable attention in China because of any such associations.
The applicant has submitted to the Tribunal a copy of what he says is a dismissal notice by his employer. He claims that this dismissal notice was issued as a consequence of an adverse report made by ZL, relating to his association with Yi Guan Dao. As the Tribunal must disregard the applicant’s conduct in associating with Yi Guan Dao, the consequences of that conduct, including the claim that dismissal, must also be disregarded. Again, however, even without the effect of s.91R(3), the Tribunal is not satisfied that any adverse report has been made about the applicant, or that he has been dismissed, or that he will face any adverse consequences for this reason.
This is because, as put to the applicant in the Tribunal’s letter of 27 November 2006, ZL left Australia on 13 December 1997, which according to the Tribunal’s findings is before the applicant joined Yi Guan Dao. In response that letter, the applicant said that he did not know when ZL left Australia. However, his oral evidence to the Tribunal at the second hearing was that there were discussions between him and ZL over a period after he joined Yi Guan Dao, and that although he could not recall with precision when ZL left it was about 15 days after the applicant told him he had joined Yi Guan Dao. In these circumstances, the Tribunal does not accept that ZL was aware of the applicant’s association with Yi Guan Dao. It finds that ZL returned to China before the applicant visited the Yi Guan Dao Temple, and was therefore unaware of that visit.
Given independent evidence about the ease with which false documentation may be obtained in China, the Tribunal places no weight on the alleged notice of dismissal which the applicant submitted to the Department. Having found that ZL was not aware that the applicant was associated with the Temple, it finds that no adverse report has been made by ZL about him to superiors in China, whether by phone from Australia, in writing in China or otherwise, and that therefore the applicant will not face any adverse consequences as a result of his activities in Australia.
All the applicant’s claims for protection are based upon his conduct in Australia in associating himself with Yi Guan Dao and Falun Gong. As the Tribunal is required to disregard this conduct, and as it is not satisfied that he would associate himself with either Yi Guan Dao or Falun Gong were he to return to China, and has concluded that his actions in joining Yi Guan Dao have not been reported, there is no other basis upon which the Tribunal could conclude that the applicant is at risk of persecution in China. Accordingly, the Tribunal finds that the applicant does not have a well founded fear of persecution in China. He is not 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 as amended by the Refugees Protocol. 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 application
In his application, the applicant set out the following ground:
(1)The RRT erred in finding, at FINDINGS AND REASONS [pp.24-27]:
· That I “came to Australia…not for business reasons”;
· That I did not attend the temple in early 1997;
· That I joined Yi Guan Dao and Falungong purely for application for a protection visa;
· That “ZL returned to China before the applicant visited Yi Guan Dao temple, and was therefore unaware of that visit”; and
· That I will “not face any adverse consequences as a result of his activities in Australia”.
The applicant has not filed an amended application.
Findings of the Court as to the ground in the application
The applicant seeks a review of findings of fact by the Tribunal that are not subject to review: Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 36; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The ground is rejected.
The applicant filed written submissions. These submissions seek again to contest findings of fact by the Tribunal. The applicant expresses his fear of returning to China, and states that he has opened a fish shop and seeks to be allowed to stay in Australia on “humanitarianism (sic) grounds.” There is nothing in these submissions that raises a ground for judicial review. They are rejected.
The Court invited the applicant to make oral submissions in support of his application. The applicant alleged that the Tribunal made a mistake (but provided no detail of the alleged mistake); he stated that the Tribunal attached a lot of importance to the process of the hearing, but not the result; he alleged that the Tribunal did not understand the system in China, but that he did; he stated that he had been in Australia for 10 years and is now running his own business. The submissions made to the Court do not raise any grounds for judicial review. They are rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 22 June 2007
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