SZJGO v Minister for Immigration
[2006] FMCA 1942
•18 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJGO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1942 |
| MIGRATION – RRT decision – Chinese person claiming persecution for Falun Gong practice – disbelieved by Tribunal – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.474(1), 476, 476(1)
| Applicant: | SZJGO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2379 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 18 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2379 of 2006
| SZJGO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 28 August 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 July 2006 and handed down on 25 July 2006. The Tribunal affirmed a decision of a delegate made on 29 March 2006 which refused to grant a protection visa to the applicant.
Section 476(1) gives the Court “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. The Court’s powers are confined by s.474(1) so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s 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 she qualifies for a protection visa.
The applicant arrived in Australia in March 2006 and soon after her arrival applied for a protection visa assisted by a migration agent. A typed statement attached to the application explained the history upon which she claimed protection in Australia against return to the People’s Republic of China.
She said that she had been persecuted because she was a Falun Gong practitioner. She said that she had joined Falun Gong in January 2001. She said:
In March 2003 I was warned by the Chinese local police. So I practiced at home and in the garden of our Fa Lun Gong group leader with a small group of my fellow Fa Lun Gong believers. We practiced underground. But still the local people found our group activities. But at that time the local police, many of whom knew us very well, did not take serious action against us and they just told us to stop.
…
In March 2003 I was put into detention for three months. I was sacked by my employer and forced to retire. But I still practice Falun Gong. In recent years, still there are many people joining Fa Lun Gong in our local place.
No further details of these claims were provided to the Department, and no corroboration was provided to the Department or to the Tribunal.
On 30 June 2006 the applicant attended a hearing to which she was invited by the Tribunal, and was interviewed by the Tribunal. A transcript of the hearing is not in evidence before me. The Tribunal in its statement of reasons said that it asked the applicant a series of questions about her involvement in Falun Gong.
The Tribunal asked the applicant whether she had been mistreated because of her Falun Gong practice, and the applicant claimed that she had been “required to attend a study session in 2003”. She claimed that she had left the study session after three months. She said:
After her release and when she started to feel better she started practising Falun Gong in her home. She was cautious about the practice and nobody knew that she was doing the exercises. She was not arrested or detained again however she was dismissed from her company due to her Falun Gong association. Since 2002 she has worked in various odd jobs and she and her husband contracted to manage a shop and made some money.
The Tribunal questioned the applicant about her practice of Falun Gong in Australia. She claimed that she had attended a park near Central Station on three occasions, but did not speak to the persons involved in the practice sessions and did not know any other Falun Gong practitioners in Sydney.
The Tribunal summarised its opinions formed after questioning the applicant about Falun Gong:
The applicant had little knowledge of the principles and belief system of Falun Gong. She had virtually no knowledge of the specific exercises fundamental to Falun Gong practice and was vague and obscure when she tried to explain the benefits and the reasons for her wishing to continue Falun Gong practice. She talked about the benefits to her health and stated that she felt calm when she practiced however she also claimed that if a person practiced in the wrong physical condition they could become insane. She claimed that she had learnt the exercises from video tapes. However she could not explain how she practiced the exercises, she could not tell me the recitations and admitted that she only practiced at rudimentary levels. The applicant was aware of the symbol for Falun Gong and knew the name of the leader of the Falun Gong movement however it was clear that she had only the most superficial knowledge of Falun Gong practice and belief.
In its statement of reasons, the Tribunal referred to country information about the nature of Falun Gong and its repression in China.
Under the heading “Findings and Reasons”, the Tribunal accepted that the applicant considered herself to be Buddhist and had practised a traditional form of Chinese exercise known as Xiang Gong for many years before she departed China in 2006. However, the Tribunal found in relation to the applicant’s claims concerning Falun Gong:
I do not accept that the applicant is a Falun Gong practitioner or that she has ever practiced Falun Gong in China. I accept that she may have observed other persons practice Falun Gong in China however I do not accept that she ever practiced Falun Gong. She had little or no knowledge of the basic principles of Falun Gong practice and belief and her level of knowledge was not consistent with a person who had practiced Falun Gong since 2001 as she had claimed at hearing. Further some aspects of her evidence at hearing were inconsistent. At first she claimed that she learnt Falun Gong exercises by observing other practitioners but then claimed that persons could not practice Falun Gong in public and that she had learnt from videos. Early in the hearing she claimed that she was a member of a group of Falun Gong practitioners but later in the hearing claimed that she did the exercises on her own and that there was no person in China who taught her in the formal sense. When her earlier evidence was put to her she claimed members of her group were all beginners. I do not accept this explanation for the inconsistent evidence.
I do not accept that the applicant practiced Falun Gong “underground” with a group or talked about Falun Gong with a group of other practitioners in China.
As I do not accept that the applicant ever practiced Falun Gong I also do not accept that she was arrested or detained for re education in 2003 or at any time as a result of her Falun Gong practice. I also do not accept that Chinese authorities perceived her to be a Falun Gong practitioner and that she was detained for this reason. The evidence she gave relating to her claimed arrest and re education experience was vague and overly generalized. She was not able to describe or name the location of the detention centre and she was not able to describe her daily routine during the claimed detention. She did give some detail of anti Falun Gong propaganda she claimed was presented at the re education however I do not accept that this material was presented to her during a period of detention.
The Tribunal said that it did not accept that the applicant had attended Falun Gong practice sessions whilst in Australia, and it did not accept that the applicant had any intention of practising Falun Gong if she returned to China. It said that it thought that she would not face a real chance of persecution for reasons of her Buddhist beliefs if she returned to China. It concluded that it was not satisfied that she had a well‑founded fear of persecution for any of the reasons set out in the Convention.
The applicant has now appeared before me on three occasions. At the first court date and at a show cause hearing she was given an opportunity to file an amended application and evidence and a written submission, after receiving a referral for free legal advice and a bundle of relevant documents. However, she has filed only a brief application and an amended application.
At the start of today’s hearing she said that her health was not good today and requested an adjournment. However, she had no medical evidence to establish any unfitness to participate in the hearing and appeared to me to be able to make oral submissions. I was not satisfied that it was either necessary or appropriate to adjourn the hearing.
Her submissions were to the effect that she maintained her refugee claims. She did not have any submissions showing error by the Tribunal amounting to jurisdictional error.
In her original application, three grounds are set out:
1.In making the decision, the Tribunal’s finding of a number of jurisdictional facts was not reasonable.
2.The decision made by the Refugee Review Tribunal is illogical.
3.It is not reasonable that the Tribunal did not accept that I am a Falun Gong practitioner while the Tribunal accept that I might had observed other persons practice Falun Gong in China.
I do not consider that any of these grounds have substance, especially in the absence of any particular argument being indicated. I do not consider that the Tribunal’s decision was arrived at illogically or unreasonably.
The applicant’s amended application has two grounds:
1.The Tribunal has not addressed my claim that I was sacked by my employer and forced to retire. Thus, the Tribunal failed to consider the whole of my claims.
2.The Tribunal does not accept that I ever practiced Falun Gong only because I do not know Falun Gong very well. The fact is that I ever practiced Falun Gong.
It is correct that in the significant paragraphs, extracted above, where the Tribunal rejected the applicant’s claim to have been a Falun Gong practitioner and to have been arrested and detained for re‑education, that the Tribunal did not refer to the applicant’s further claim that she had lost employment after the end of her detention. However, the Tribunal, in my opinion, was clearly aware of that element in the applicant’s claims. It identified it when summarising her original written statement, and it noted that the applicant’s application for review had been accompanied by a copy of that statement. As I have indicated above, it also narrated the applicant’s claim to have been dismissed from her company “due to her Falun Gong association” which she made in her oral evidence.
In my opinion, the Tribunal has dealt with the claimed loss of employment by its sweeping conclusion which rejected the events which the applicant claimed had occurred as a result of being a Falun Gong practitioner. I am not satisfied that there is any element of the applicant’s claims which the Tribunal has overlooked.
The second ground in the amended application makes the contention which the applicant has elaborated orally to me today, that is: “the fact is I ever practiced Falun Gong”. However, as I have explained to the applicant, it is not the function of the Court to decide for itself whether her claims are true.
I am unable to identify any jurisdictional error made by the Tribunal when it rejected those claims.
In my opinion, the decision is a privative clause decision, and I must dismiss the application.
I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 15 January 2007
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