SZIKQ v Minister for Immigration
[2008] FMCA 758
•2 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIKQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 758 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether compliance with ss.424A and 425 of the Migration Act – where chain of experiences on which applicant’s claim was based. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 VGAO of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 68 |
| Applicant: | SZIKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3834 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 2 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3834 of 2006
| SZIKQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 6 December 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in August 2005 and applied for a protection visa. His application was refused by a delegate of the first respondent and he sought review by the Tribunal. The applicant was invited to attend a hearing by the Tribunal as originally constituted. He did not do so. The Tribunal affirmed the delegate’s decision by decision handed down on 9 February 2006. The applicant sought judicial review in this Court and the matter was remitted to the Tribunal by consent by Lloyd-Jones FM on 6 June 2006. It is the decision of the Tribunal as reconstituted that is before the Court.
The Tribunal invited the applicant to attend a hearing on 6 September 2006. He did so. The Tribunal also wrote to the applicant on 11 October 2006 under s.424A of the Migration Act 1958 (Cth) inviting him to comment on certain information. He replied by letter received by the Tribunal on 2 November 2006.
In connection with his protection visa application the applicant had claimed to fear persecution as a Falun Gong practitioner. He claimed that his family had been persecuted because they practised Falun Gong and also that they had been persecuted in the past as Buddhists. In particular he claimed that his mother, who became a Falun Gong practitioner in 1996, was an active practitioner and leader who had been detained by the police in 2000 and again in 2003. The applicant claimed he learnt about Falun Gong from his mother and became an active follower, that he "went into trouble" in mid-2003 so went to South Africa for a month to avoid further investigation. He claimed that thereafter his business was “interrupted” because the local police often came to search his shop and warned people not to get too close to him. He changed the location of his business but claimed that the police still came to visit him and he had to “close the door”. He claimed that a close friend who was one of his Falun Gong group members disappeared and that thereafter he came to Australia to escape mistreatment by Chinese officials and the local police.
In its reasons for decision the Tribunal recorded the applicant's initial claims and also the claims he made at the Tribunal hearing. It set out in some detail the issues discussed with the applicant at the hearing, a matter to which I will return.
After referring to the s.424A letter and reply the Tribunal outlined independent country information, in particular the situation of Falun Gong practitioners. In its findings and reasons the Tribunal found first that the applicant had demonstrated “only a very basic and limited understanding of Falun Gong practices”. It found:
He had no knowledge of the history, the reason or theory behind the practise of Falun Gong, and some knowledge would have been expected had his mother who allegedly was a leader taught him and after he allegedly practised by himself and with others for about six years.
The Tribunal referred to the fact that the applicant claimed to have taken up the practice of Falun Gong in 2000 (which it observed was after the Chinese government had declared Falun Gong to be a cult and had banned the practice of Falun Gong in China) and that he claimed that as well as practising at home he had practised Falun Gong in a park in China in 2000. The Tribunal found it inconsistent with independent country information that the applicant could publicly practise in a park in a small group in China from 2000 without being arrested or suffering other severe consequences.
The Tribunal addressed the applicant’s claim that the police used the fact that he was a Falun Gong practitioner as an excuse to interrupt his business every day, that every few weeks they took him to the local police station and held him for at least a day but that sometimes he was released the next day. It also considered his claim that he travelled to South Africa and to Korea in 2003 to avoid further investigation and that in Australia he practised with others on Sunday in a park in Campsie and on Wednesday if he was free, but otherwise at homes with friends when they were free to practise.
However the Tribunal did not accept that the applicant was ever a Falun Gong practitioner. It found that he did not have the profile of a committed practitioner either in China or Australia. In view of this the Tribunal did not accept the consequential claims that the applicant was harassed daily by the local police at his place of business. Nor did it accept that the applicant had few customers because the police searched his shop or that he had to change business location and the police again visited him as he was a Falun Gong practitioner coming to the shop every day to interrupt his business. It did not accept his claims that the police argued with him, took him to the police station and held him.
The Tribunal had regard to independent country information about the Chinese government’s lack of tolerance after October 2000 for rank and file Falun Gong practitioners who continued to defy it by participating in protest rallies and to information in relation to the suppression of Falun Gong in China. It found that the applicant’s claim about his arrest was not consistent with the independent country information and that it therefore followed that the Tribunal did not accept that the applicant was arrested and held by the local police (at most overnight) who only attended his business premises. Nor did it accept that he had practised Falun Gong in public gatherings in a park in China as a Falun Gong member. It stated:
Had the applicant been a wanted man for his alleged practice of Falun Gong he would have been arrested and detained for a longer period than one day, as the independent country information is clear that the Chinese authorities did not take a soft stand on any public display of Falun Gong activities after the crackdown in July 1999 and especially from 2000 onwards.
The Tribunal also had regard to inconsistencies in the applicant's oral and written evidence as to when and how often his mother was arrested and detained for being a Falun Gong practitioner. It set out those inconsistencies, in light of which it found that it could not accept that the applicant's mother was arrested in China in respect of her Falun Gong beliefs. The Tribunal did not find it plausible that the applicant had forgotten, as he had claimed, (the claim which he had raised at the Tribunal hearing), that his mother had been arrested and detained for six months in a local police station or that, had this in fact happened, he could not recall approximately when she was released from detention. Hence it did not accept that the applicant's mother was a Falun Gong practitioner since 1996 or a leader of a group of 20 people as claimed or that the applicant's wife or father were Falun Gong practitioners.
The Tribunal then addressed the applicant's claims in the statement accompanying his protection visa application that members of his family were subject to persecution as Buddhists, in particular his claims in relation to what happened to his grandmother during the time of the Cultural Revolution. The Tribunal had regard to independent country information that the Cultural Revolution phase ended in China in 1978 and that being related to persons persecuted during that time no longer carried a stigma in China. The Tribunal found that there would be no adverse consequences for the applicant in China if his family members had been Buddhists at that time. It found on the basis of independent country information and his claims that he had not been persecuted in the past and that he would not in the reasonably foreseeable future face a real chance of persecution because of his and his family's Buddhist beliefs.
Finally the Tribunal found that due to the applicant's lack of knowledge it did not accept that he was a Falun Gong practitioner in Australia. It also had regard to information that the Chinese government would only be interested in prominent Falun Gong practitioners and leaders abroad and those who disturbed the work of the Embassy. It found that the applicant did not have and had not had a profile that the Chinese government would be interested in and that as he had no Falun Gong profile on return to China he would not follow or promote Falun Gong. The Tribunal concluded that the applicant did not face a real chance of persecution now or in the reasonably foreseeable future for a Convention reason arising from his claimed involvement in Falun Gong or his family membership. It affirmed the decision of the delegate.
The applicant sought review by application filed in this Court on 20 December 2006. There are three unparticularised and generally expressed grounds in that application. The applicant did not file written submissions and had nothing to add to the grounds in his application in oral submissions, apart from reiterating his claim to be a Falun Gong practitioner. As I explained to the applicant merits review is not available in this Court and such claims do not establish jurisdictional error.
The first ground is that the Tribunal and Department did not perform adequate procedures. There was no explanation as to what was meant by this ground. Nonetheless, the first respondent in written and oral submissions addressed the procedures applicable to the Tribunal. First, insofar as there is any contention that there was a failure to comply with s.424A of the Migration Act the Tribunal wrote to the applicant under s.424A of the Migration Act by letter dated 11 October 2006. It was contended by the first respondent that it was unnecessary for the Tribunal to do so insofar as it addressed inconsistencies in the applicant's written and oral evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). However it is not necessary to determine that issue for the purposes of these proceedings as there is no jurisdictional error in the Tribunal sending a letter to the applicant purportedly under s.424A even if it extended to matters that did not have to be put to the applicant under that section. More relevantly, no failure to comply with s.424A is apparent on the material before the Court.
The first respondent also addressed the requirements of s.425 of the Migration Act, in particular in light of the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. In that respect the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision and it is apparent from the Tribunal's account of what occurred that insofar as necessary it raised dispositive issues with the applicant as required by SZBEL. There are a number of points to note in that respect.
First I note that the delegate's decision addressed concerns in relation to the credibility of the applicant’s claims to be a Falun Gong practitioner and the inconsistency between his claim that his business premises were subject to regular visits and searches by the local police and country information in relation to treatment of Falun Gong practitioners. Moreover it is apparent from the Tribunal account of what occurred in the Tribunal hearing that the Tribunal raised with the applicant the issue of its concern about his knowledge of Falun Gong. Indeed it put to him that although he answered five questions correctly in relation to Falun Gong exercises it could not be satisfied that he had real in-depth knowledge of the theory and the reason for practising Falun Gong. It recorded his responses in that respect and put further concerns to him, such as its difficulty in accepting that someone who did not know a lot about Falun Gong would start practising it after it was officially banned by the Chinese government. The Tribunal also put to the applicant its concern about his evidence that he had been detained on a number of occasions and held for just a day and released, indicating that it seemed strange that if he was a real Falun Gong practitioner he would be just held for a day and released. It also put to him its concern about his travel outside China in light of his claims to have been a Falun Gong practitioner who had been treated as claimed and arrested.
The Tribunal also put to the applicant concern about his evidence in relation to his recollection of what had occurred to his mother. It raised a number of issues in relation to his claims about what occurred to his mother and its concern about his claim that he had practised publicly, in particular its concern that it was highly unlikely that anyone practising Falun Gong would do so openly in the park in 2000.
One issue addressed by the first respondent is the Tribunal finding in relation to what the applicant said occurred to his business by way of the police visiting and harassing him as consequence of his claim to be a Falun Gong practitioner. The specific claim that he was arrested on occasion was raised with the applicant in the hearing. There is no indication in the Tribunal account of the hearing that it raised any concern about his claim about police visits and harassment.
However, as the Full Court of the Federal Court recently held in Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11], in circumstances where “an applicant gives a chronological account of his experiences and the later elements of the account are a function of earlier events, the credibility of the later events must depend on whether or not the Tribunal accepts the earlier account”. In that case the Full Court found that the Tribunal's refusal to accept an appellant's account of the initial elements in a chain of causation was such that it was not necessary for the Tribunal to raise specifically with the applicant in the course of the hearing its concerns in relation to all the later elements of his claims. The Court distinguished the circumstances considered by the High Court in SZBEL where elements of an applicant's claim provided independent bases for the claims made. In effect, their Honours found in SZJGY that the case before them was an example of the situation referred to by the High Court at [47] that:
There may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.
In this case, as in SZJGY, there was a chain of experiences on which the applicant's claim was based. In light of the matters that the Tribunal did raise with the applicant in the course of the Tribunal hearing, in particular its difficulty in accepting that he was ever a Falun Gong practitioner, no jurisdictional error is established by any failure to raise with the applicant its concerns in relation to all of the “derivative claims” (see SZJGY at [57]) or consequences that he said resulted because he was a Falun Gong practitioner. In reaching that conclusion I have also regard to the delegate's decision and extent to which that brought to the applicant's attention generally the issue of the credibility of his claims. No failure to comply with s.425 of the Migration Act has been established.
Insofar as ground 1 is intended to be a more general contention of a lack of procedural fairness, no such failure is apparent on the material before the Court. The first ground is not made out.
The second ground is that the Tribunal's decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical. Again this ground was not particularised and was not addressed by the applicant in submissions. It has not been established that the Tribunal decision was based on unwarranted assumptions or irrational or illogical reasoning, let alone in a manner such as to demonstrate jurisdictional error (see in that respect VGAO of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 68 at [56]). I note that a mere lack of logic does not constitute jurisdictional error and insofar as it is intended to be argued that there was some unreasonableness in the decision, unreasonableness such as to constitute jurisdictional error has not been established on the material before the Court. Ground 2 is not made out.
Finally it is contended that the Tribunal made jurisdictional errors when applied statutes and common law. Again there are no particulars and this ground does not give rise to any jurisdictional error, appearing rather to reiterate matters raised under the earlier grounds. No jurisdictional error is established on the basis contended for in ground 3.
The affidavit the applicant filed at the same time as his application reiterated his general contention of jurisdictional error and a claim that his case been treated unfairly. However, as discussed above, such claims are not made out on the material before the Court. As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful. Hence, he should meet the respondent's costs. The amount of $3,500 which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 12 June 2008
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