SZIEY v Minister for Immigration - [2007] FMCA 184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEY v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 184

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – dubious reliance upon applicant’s knowledge of history – no jurisdictional error found.

Migration Act 1958 (Cth), ss.474, 476

NADH of 2001 v The Minister [2004] 214 ALR 264
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
SZIAY v Minister for Immigration & Multicultural Affairs [2006] FMCA 1680
SZHCI v Minister for Immigration [2006] FMCA 1016
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431

Applicant:

SZIEY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2428 of 2006

Judgment of:

Smith FM

Hearing date:

12 February 2007

Delivered at:

Sydney

Delivered on:

12 February 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms V. McWilliam

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2428 of 2006

SZIEY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 31 August 2006, which has been set down for final hearing on whether the applicant is entitled to relief under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal dated 28 July 2006 and handed down on 8 August 2006. The Tribunal affirmed a decision of the delegate made on 6 September 2005, refusing to grant a protection visa to the applicant.
Between the date of the delegate's decision and the present decision of the Tribunal, there was a first decision made by the Tribunal on

12 December 2006, which was set aside by consent order of this Court on 4 May 2006. Neither the reasons of the previous Tribunal, nor the reasons for the consent order are shown in the material before me.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution”, but the Court's powers are confined by s.474 so that I do not have power to set aside the Tribunal’s decision and send the matter back, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in August 2005, and soon thereafter applied for a protection visa. His application did not identify any person assisting him, and contained no corroboration nor details in support of a brief statement explaining why he sought protection in Australia against return to his country of nationality, the Peoples Republic of China. It said:
I began to practice Falun Gong in 1998 and from time to time went to attend its meeting and do collective practicing in 1999, the Chinese government launched a large-scale campaign to crack down Falun Gong. As I was an active and firm practitioner and refuse to convert my faith, I was dropped from my regular job at a company and then the company reduced my salary. From 1999 till the time I left my country, my salary was not increased, although I am a deputy-managing director. This is just because I was a Falun Gong practitioner. This is not yet the worst; my family and I were greatly discriminated against in this society every now and then I was interrogated by local officials they threatened that they would put me in jail if I continue to practice. I knew that they meant their words as quite a few of my co-practitioners had been jailed.
…
I am afraid of going back to China if I go back. I will sure be persecuted by those people. I sincerely hope that I can be granted a protection visa and stay in Australia permanently.
When the delegate refused the application, he identified parts of the history which suggested that the applicant was not of interest to the Chinese authorities, and also referred to his claims as being “both vague and unsubstantiated”.
Following his appeal to the Refugee Review Tribunal, the applicant presented a number of documents and photographs. He presented a letter from his wife enclosing what he claimed was a copy of an: “order of arrest”. This attached a photograph of the applicant and described the applicant as “currently on the run” following suspected of involvement in an “illegal social gathering” on a date in February 2005. The document is dated 15 September 2005 (i.e. after the delegate’s decision), and has various stamps on it. The letter from the applicant's wife is dated the day after the date of the order for arrest, and said “today I received the arrest order from the (town) security bureau”.
In written statements presented to the Tribunal the applicant identified an incident on the date in February as the event which has caused his persecution and his decision to come to Australia. The applicant also presented photographs of his participating in Falun Gong activities in Australia.
The applicant attended a hearing on 24 July 2006, held by the Tribunal as reconstituted. Its record of the hearing states that the Tribunal received five statutory declarations which were given to the member. In its statement of reasons, the Tribunal notes that he attended with a witness and his agent, tendered the statutory declarations, and was subsequently posted a copy of the hearing tapes.
Although the applicant was warned at the first Court date and subsequent directions hearing before me that he would need to tender a transcript of the tapes, if he wished me to make findings as to what happened at the hearing, he has not tendered a transcript. Nor has he presented sworn evidence disputing the Tribunal's account of the hearing and its procedures.
He tendered in Court today a copy of a letter dated 9 June 2006, signed by the president of the Falun Dafa Association of New South Wales. This confirms statements in the statutory declarations that the applicant attended Falun Gong practise in Sydney in Darling Harbour and some times in front of the Chinese Consulate. The applicant made equivocal statements to me on whether he claims to have given this letter to the Tribunal at the hearing as well as the statutory declarations. There is no suggestion in any of the documents from the Tribunal’s file that it was ever given to the Tribunal. On the present evidence before me, I would not be prepared to conclude that the applicant did give it to the Tribunal before it made its decision. I therefore would not conclude that it was a piece of evidence before the Tribunal which was not taken into account. Moreover, if indeed it was given to the Tribunal, then it is possible that the Tribunal did not feel obliged to mention it, since the Tribunal did not make findings contrary to its contents.
According to the Tribunal's description of the hearing, the applicant gave a description of the events in February 2005, and its aftermath. The Tribunal said:
The applicant gave evidence that on 13 February 2005, whist he was practising with about 20 other practitioners in secret, a police friend of his called him and told him he had an urgent matter to discuss with him. The applicant stated that the police officer wanted to warn him not to practise anymore and he told him to be careful. The applicant stated that subsequently he heard that members of the group with whom he was practising had been arrested. The Tribunal asked the applicant if he personally has ever been arrested by the authorities, and the applicant confirmed that he has never been arrested by the Chinese authorities. The Tribunal asked the applicant if, between 1999 and 2005, he continued to practise, and the applicant stated that he practised Falun Gong on his days off in secrecy, not with a group of other practitioners. The Tribunal asked the applicant to explain if he did not practise with a group for so many years, why he chose to start practising with the group in 2005. The applicant stated that it had been a long time and that some of them had lost their power and proposed another group. He said they were practicing secretly. The Tribunal asked the applicant if he had any idea, given his evidence that they practised secretly, how the police would have known about the practice on the same day. The applicant stated he does not know how the police knew.
The Tribunal discussed with the applicant the Order of Arrest that had been provided to the previous Tribunal and located at Folio 22 of that file. The applicant stated that on 15 September 2005, the police went to his home wanting to arrest him because he had been a practitioner. The Tribunal put to the applicant that it was difficult to understand why they would want to arrest him on that day given that nothing had happened to him subsequent to the claimed events of February 2005. The Tribunal noted that he is not claiming that anything had happened to him in that timeframe. The applicant stated that the authorities did not do anything about him as they did not have any evidence at that time. The Tribunal asked the applicant if he knew what kind of evidence they had when they issued the Order of Arrest in September 2005. The applicant stated that after the 13 February 2005 incident, the police were coming to his house investigating the registration of his residency as an excuse. Later the applicant stated, “Maybe people who were arrested in February dobbed me in.” The Tribunal indicated to the applicant that if, indeed he had been dobbed in by the people who were arrested in February 2005, it was odd that the authorities did not take any action until September 2005. He stated they did not have any evidence beforehand. Later on, the applicant said that perhaps no one had dobbed him in.
The Tribunal said that it discussed with the applicant the delay before the police wanted to arrest him, and indicated its serious doubts about the order of arrest. It also put to the applicant that it was concerned that he may have engaged in Falun Gong activities in Australia for the purpose of enhancing his application for a protection visa.
The Tribunal then described questioning aimed at eliciting the extent of his knowledge of “key events in the history of the Falun Gong movement” which the Tribunal obtained from chronology in a United Kingdom Home Office report. It is not apparent to me that ordinary Falun Gung practitioners should be assumed to have the knowledge which the Tribunal appears to have thought the applicant should have been able to demonstrate without warning. However, it is possible that the Tribunal had some general information which allowed it to make that assumption. The Tribunal apparently drew the applicant's attention to concerns it had in relation to many of his answers to its test of his knowledge.
The Tribunal also received evidence from a witness who had seen the applicant at Darling Harbour. It also received submissions from the applicant’s adviser.
In its statement of reasons, the Tribunal referred to the background information consulted by it. Under the heading "Findings and Reasons" it identified a number of matters which caused it concerns. These included the plausibility of the applicant's account of events on the date in February 2005, and as to his claim that an order of arrest was only issued after he arrived in Australia. In that respect, it concluded:
The Tribunal is of the view that it is implausible that if he had been of any interest to the authorities in February 2005, that they would have waited until September 2005 to issue the Arrest Order. The Tribunal has given regard to the Arrest Order but in light of those comments and in consideration of the evidence as a whole, the Tribunal finds that the document has been fabricated.
The Tribunal then referred to its questioning of the applicant about “important events/dates relating to Falun Gong”, and concluded that “his knowledge was extremely limited”. In my opinion, at this point in its reasoning it may appear to have given dubious emphasis to some matters, such as an error by two days as to the date in 1999 when Falun Gong was banned, and the applicant’s inability to state the date when the originator of Falun Gong, Master Li, applied for asylum in New York. However, at the end of that discussion, the Tribunal showed some appreciation of the need to put the applicant's responses into proper perspective, since it said:
Whilst the Tribunal appreciates that some of questions asked relate to historical matters which may not have a direct relevance to the practice of Falun Gong, however, given the significance of a lot of those events, the Tribunal is of the opinion that it is legitimate to ask and test the applicant’s knowledge of those facts as they could provide an objective assessment of the extent of the applicant’s commitment and understanding of Falun Gong principles.
The Tribunal then referred to the letter from the applicant's wife, and the evidence of the witness and in the statutory declarations that the applicant was a genuine practitioner of Falun Gong. It concluded:
In consideration of the evidence as a whole and given the fundamental credibility concerns, the Tribunal does not give any weight to that material.
The Tribunal then expressed a general conclusion:
In light of the above comments and in consideration of the evidence as a whole, the Tribunal rejects that the applicant is a genuine Falun Gong practitioner, that he has ever practised Falun Gong in China, that he was ever involved in any Falun Gong activities in China, that the applicant was ever wanted/approached/questioned by the Chinese authorities for his Falun Gong practice, that his salary was not increased because of his practice, that he and his family were discriminated against because of his practice, or that he is afraid to return to China as he would be persecuted. In essence and for the outlined reasons, the Tribunal does not accept that the applicant has suffered any of the claimed harm or that there is areal chance of such harm in the reasonably foreseeable future.
The Tribunal then considered the evidence of the applicant's Falun Gong activities in Australia. It accepted that he had been involved in such activities, but found that “the applicant has engaged in those activities for the purpose of enhancing his application for a protection visa and pursuant to section 91R(3)(b), the Tribunal disregards those activities”. That provision places an onus on an applicant to satisfy a decision-maker “that the person engaged in the conduct (in Australia) otherwise than for the purpose of strengthening the person's claim to be a refugee”.
I have considered the procedures followed by the Tribunal and its reasoning. Notwithstanding that some parts of its reasoning are not fully persuasive, I am not satisfied that the Tribunal's decision is affected by any jurisdictional error.
The applicant has not been legally represented in this proceeding, and has filed a number of documents which mostly show a misapprehension as to the grounds which can be argued in this Court.
His original application alleges that the Tribunal “failed to take into account relevant consideration”, “erred in law by failing to ask the question that it had to decide”, and “erred in law as it did not accept that the applicant has a spiritual commitment to Falun Gong in China”. However, these contentions are not given meaningful particulars, and I am not persuaded they have any substance.
A document filed at a direction's hearing before me on 13 November 2006 contains two further grounds:
1. The Tribunal did not fulfil its statutory obligation under the Migration Act and examine my case as it was presented, the Release Notice has relevant and cogent and was corroborative of my claim to have been issued Arrest Order in the circumstances that I alleged for a refugee convention reason. It was not open to the Tribunal to state that the document has been fabricated.
2. The Tribunal held that I am not a genuine Falun Gong practitioner. It is beyond the jurisdiction and expertise of the Tribunal in determining refugee status to apply a test of religious belief.
An argument in support of Ground 1 is contained in that document, and in a written submission was presented to today's hearing. It seeks to rationalise why the applicant might have been under surveillance for many months without being the subject of an arrest warrant. It is not clear to me that this argument was ever presented to the Tribunal. In any event, in my opinion, the argument does no more than challenge a factual assessment of the Tribunal which was open to it, and I do not consider that it establishes any ground of jurisdictional error.
The reference in Ground 1 to a “release note” does not relate to the evidence in this case.
Ground 2, as argued in the applicant’s documents, also in my opinion challenges only the Tribunal's factual assessment of the applicant's commitment to Falun Gong prior to coming to Australia.
His written submission also criticises the Tribunal's history test. In this respect, it makes arguments which may have some merit. However, it does not persuade me that the Tribunal's partial reliance upon the applicant's perceived lack of knowledge of “key events” raises jurisdictional error, even if it is open to some criticisms.
In this respect, I have considered whether the Tribunal’s reliance on this testing allows conclusions of irrationality, recklessness or apprehension of bias such as was discussed by the Full Court in NADH of 2001 v The Minister [2004] 214 ALR 264 and was found by me in SZHCI v Minister for Immigration [2006] FMCA 1016 and SZIAY v Minister for Immigration & Multicultural Affairs [2006] FMCA 1680. However, particularly in the absence of a transcript, I am not persuaded that the Tribunal’s reasoning establishes any of these grounds. Its reliance on perceived defects in the applicant’s knowledge, even if misconceived, was not an error going to jurisdiction (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [65]). Moreover, the Tribunal was able to point to other reasons supporting its adverse view of the applicant's credibility. In particular, it identified valid reasons for doubting the genuineness of the Arrest Order, and inherent problems of credibility in the applicant's claimed history. I am therefore not persuaded that the Tribunal's partial reliance on some apparently insignificant gaps in the applicant’s knowledge of “key events” establishes a failure to make a genuine assessment of whether the applicant was a refugee, nor otherwise that it failed to exercise its jurisdiction according to law.
The applicant today maintained the arguments that are in his written submission, and that he is a genuine Falun Gong practitioner with cause to fear return to China. However, as I have attempted to explain to him, it is not my function to make a decision about his refugee status.
For the above reasons I am not persuaded that the Refugee Review Tribunal's decision was affected by jurisdictional error, and I must therefore dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 23 February 2007