SZJKE v Minister for Immigration
[2007] FMCA 564
•23 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJKE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 564 |
| MIGRATION – Tribunal required to ignore knowledge of Falun Gong acquired in Australia – knowledge acquired for purpose of enhancing claims for protection. |
| Migration Act 1958, ss.91R,424A |
| Randhawa v MILGEA (1994) 52 FCR 437 Selvadurai v MIEA & Anor (1994) 34 ALD 347 Kopalapillai v MIMA (1998) 86 FCR 547 |
| Applicant: | SZJKE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2691 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 23 March 2007 |
| Date of last submission: | 23 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2007 |
REPRESENTATION
| The applicant appeared in person |
| Solicitor for the Respondents: | Ms D. Watson of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2691 of 2006
| SZJKE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 22 September 2006 for an order to show cause seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. An amended application was filed today by leave of the Court on 23 March 2007.
The applicant was born on 14 August 1969 and claims to be from and of Chinese ethnicity (“the applicant”).
The applicant’s husband and daughter remain in China.
The applicant arrived in Australia on 6 February 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 15 March 2006. In this application she claimed that she was an “innocent, persecuted Falun Gong practitioner” (CB 27). The applicant claimed that she and a group of colleagues were forced to practice secretly at her home, but that the Public Security Bureau “got the wind of it” and tried to arrest them. The applicant claimed that she managed to escape. The applicant claimed that in March 2000 she was “asked to go to police station for two days”, and that in May 2002 she was required to report to the station every week (CB 27). The applicant stated that she became “very scared” after the Chinese government began to arrest, detain, and imprison Falun Gong practitioners (CB 28).
This application was refused by a delegate of the first respondent on 3 May 2006 (CB 34).
On 5 June 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 45). The applicant gave oral evidence before the Tribunal on
19 July 2006 (CB 83), at which time she maintained the claims made in her original protection visa application.
On 11 August 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 81). In considering the applicant’s claims, the Tribunal found (CB 98-101) (emphasis added):
The applicant claims to fear persecution in China because she is a practitioner of Falun Gong. She claims to have come to the adverse attention of the PRC authorities and that she was arrested and detained briefly in 2000, and was monitored for some time thereafter.
She came to Australia with a PRC passport, and there is no evidence before the Tribunal which would suggest she is a citizen of any other country other that the PRC. The Tribunal therefore finds that the applicant 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 as assessment of the applicant’s credibility. 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 uncritically accept each and every assertion made by the 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 been (sic) made out. Nor it is 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 andKopalapillai vMIMA (1998) 86 FCR 547.
There are a number of contradictions between the fairly vague claims made by the applicant to the Department in March 2006 and the more detailed claims made to the Tribunal in June 2006. The applicant has attributed those contradictions to failings on the part of a migration agent who she said assisted her to submit her earlier application. However, the Tribunal has some difficulty in accepting that application.
Early in the hearing on 19 July 2006, the Tribunal sought to ascertain whether the applicant stood by the claims she had made to the Department. As noted above (page 8) (CB 88), the applicant said that she was satisfied that the information she had given to the Department and to the Tribunal was a complete and accurate summary of the circumstances which had caused her to seek protection. She stated that the questions in the application forms had been translated to her, and that, when her answers and statements had been written down in English, they were confirmed with her. Later in the hearing (see page 9) (CB 89), the Tribunal mentioned that the first statement was brief and lacking in detail, and asked explicitly whether it represented her words. The Tribunal made it clear to her that the contrast between it and the later, more detailed and lengthy, statement was an issue which was relevant to its assessment of her credibility. The Tribunal would have expected that the applicant would have raised any concerns she had about accuracy of the first statement at these times, if indeed she had such concerns. Indeed, had she any concerns about the accuracy of the first statement, the Tribunal would have expected her to have mentioned them explicitly when applying to the Tribunal.
However, while she said, still later (see page 10) (CB 90) that her initial statement was only a rough summary of her experiences, she did not raise any concerns about the accuracy of the first statement until later in the hearing when a particular issue was raised (see page 11) (CB 91), and she asserted that it was a fabrication by her first agent.
In these circumstances, the Tribunal finds that the first statement was made with the applicant’s consent and, at the time it was submitted, she was aware of its contents.
As noted in the Tribunal’s letter of 19 July 2006, there are a number of contradictions in the claims made by the applicant. In her first statement, she claimed to have been practising Falun Gong for six years, that is since around March 2000. However, her second statement asserted that she had commenced practising in February 1999. She has explained this contradiction by saying that when she commenced in 1999, it was only a “trial” and she did not spend much time practising. She said at the hearing that it was not until early 2000 that she started practising “formally.” She said that it was the fact of her pregnancy which made her realise that Falun Gong was benefiting her, and that she then started to practise more devotedly. Her written comments, in the letter she submitted on 28 July 2006, were of a similar nature.
However, her statement to the Tribunal contradicts the claim that her practice in 1999 was “only a trial.” According to that statement (see page 6 above), after she undertook an initial two weeks instruction at home, she was able to perform the exercises and was taken to a public park for practice with others. She stated that she and the others would practise “each day” in the early morning. The clear meaning of that statement was that the applicant was practising daily in early 1999. As described in that statement, her claimed practice in early 1999 was no “trial.”
The applicant told the Tribunal that her child was born in March 2000, and that she had realised she was pregnant in early September 1999. There is no evidence to suggest otherwise, and the Tribunal accepts this claim. If that were the case, and had the applicant decided to take up Falun Gong “more devotedly” as a result of becoming aware that she was again pregnant, the Tribunal would have expected her to have commenced that more devoted practice in late 1999, rather than in 2000.
In her initial statement of claims, the applicant said that she was unable to practise in public because Falun Gong was banned. However, her second statement included a claim that she used to practise in a park. In her most recent response, she said that the claim that she practised in the park was conveyed to her first migration agent. She said her second statement made no claim of practising publicly after July 1999, which was when Falun Gong was banned. While the Tribunal accepts that the second statement made no such explicit claim, it considers that claim is implicit in the statement. In that statement, she moved from one paragraph which said she practised in the park every day, to the opening sentence of the next paragraph in which she referred to being ordered to attend the police station in March 2000. The implication is that it was public practice which brought her to the attention of police.
As mentioned above, the applicant’s first statement referred to police raiding (the Tribunal’s term) her home at a time when she and others were practising there. The statement implies this was before March 2000. The applicant has told the Tribunal that this never happened, and that it was an invention of her first agent. However, as mentioned above, she had earlier confirmed to the Tribunal that the statement was hers and that it had been confirmed to her.
A key element of her second statement is the claim that police mistreatment was the cause of her giving birth prematurely in March 2000. This claim was absent from her first statement. The applicant has said that she only gave a rough summary of her experiences to her first agent, but the Tribunal does not accept that explanation. Had she truly been arrested and mistreated to such an extent as to cause her to give birth a month and a half prematurely, the Tribunal would have expected such a significant claim to have been made even in an initial, “rough” summary. In contrast, the initial statement made no claim whatsoever that she experienced any mistreatment. All it said happened was that she was “asked” to go to the police station, and then required to go there every week.
The applicant’s initial statement of claim is very similar to an other seen by the Tribunal. The similarities are so marked that the Tribunal cannot escape the conclusion that either the applicant’s statement was based upon the earlier one, or both were based upon a common template. Again, the applicant has said she had no knowledge of what her agent had said, but, for reasons previously given, the Tribunal has concluded that the applicant was aware of the content of that statement.
All of these considerations have lead the Tribunal to conclude that the applicant’s two statements do not represent accounts of her own personal experiences. The Tribunal finds that the first statement was based upon an earlier statement prepared for someone else, and that her second statement was created to overcome the difficulties identified by the delegate in the decision under review.
At the hearing, the applicant revealed a fairly good knowledge of the Falun Gong exercises, though there were some mistakes. For example, in her demonstration of one exercise, she included a particular element in places where it is not prescribed, she misnamed one element and she did not know of “verses” one is supposed to recite prior to the exercises. In addition, her knowledge of its history was deficient in some respects. For example, she stated that the large demonstration which was the catalyst for the banning of Falun Gong was in July 1999, when in fact it was in April of that year. Had the applicant been a practitioner of Falun Gong since early 1999 or even early 2000, the Tribunal would have expected her to have had a more in-depth understanding of Falun Gong. The level of knowledge of the exercises she displayed can easily be obtained from Falun Gong publications.
The Tribunal therefore finds that the applicant was not a practitioner of Falun Gong in China.
In support of her claim to be a genuine Falun Gong practitioner, the applicant submitted a statutory declaration from a third party, dated 14 July 2006. However, the person who wrote that declaration did not claim to hold any position of authority in the Falun Gong movement, and only claimed that he began to meet her “more than one month ago.” The declaration does not indicate when the applicant first started any involvement with Falun Gong in Australia, and the Tribunal infers from the form of words used in the declaration that its writer had only known the applicant for one or two months. The Tribunal had explained to the applicant at the hearing (see page 12 above) that, even if it were to accept the declaration in its entirety (as it now does), it could still conclude that she had learnt all her current knowledge while in Australia. The applicant has had time since the hearing to elicit a more detailed statement from the writer, had she considered he was in a position to comment upon her knowledge of Falun Gong at the time she came to Australia. For this reason, the Tribunal elected not to approach the writer. The Tribunal would have expected that, had the applicant a close association with any Falun Dafa association in Australia, she would have sought to provide supporting evidence from such an association attesting to the level of her commitment to Falun Dafa, and not just a statement from a person who had only recently met her.
The applicant has also submitted photographs of her participating in public Falun Gong practice in Sydney, apparently handing out leaflets in Sydney and participating in demonstrations. None of the photographs is dated. The Tribunal gives the statutory declaration and photographs little weight in support of the applicant’s claim that she had any knowledge of Falun Gong before she came to Australia.
In all the above circumstances, the Tribunal finds that the applicant’s knowledge of Falun Gong has been acquired in Australia since her arrival, and that her participation in various Falun Gong activities in Sydney and Canberra was for the purpose of enhancing her claims for protection. As such, the Tribunal is required by s.91R(3) to ignore her participation in Falun Gong activities and her acquisition of knowledge about Falun Gong.
Having so concluded, the Tribunal finds that, were the applicant to return to China in the reasonably foreseeable future, she would have no reason to involve herself in Falun Gong activities there. There is therefore no reason for the applicant to come to the unfavourable attention of the PRC authorities in the future. As the Tribunal has rejected her claims about Falun Gong activities in China, the Tribunal does not accept she has previously come to the adverse attention of those authorities.
The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution in China.
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The applicant filed an amended application with leave of the Court on 23 March 2007.
The application
In her application, the applicant set out two grounds for review as follows:
1)The applicant claimed that she and her husband had a relation problem because she had suffered habitual miscarriages for three times. Her husband was very upset. Her best friend, Dong Liu who is long-time Falun Gong practitioner visited her suggested practicing Falun Gong might do some good, as it would improve one’s health condition, especially for the prevention of another spontaneous miscarriage during her pregnancy. She believed her advice. It was that day in February 1999 when she started practicing Falun Gong. The member of Tribunal didn’t accept her claims. The Tribunal made jurisdictional error in making it’s finding.
2)The member of the Tribunal thinks that the applicant’s participation in various Falun Gong activities in Sydney and Canberra was for the purpose of enhancing her claims for protection. Such conclusion is unfair.
In her amended application, the applicant set out the following particular:
On 22 September 2006, the applicant lodged a review application in the Federal Magistrates Court of Australia to seek the review of the decision of the Refugee Review Tribunal to affirm the Department of Immigration to refuse to grant a protection visa to the applicant.
In the letter by the Tribunal dated on 19 July the Tribunal invited the applicant, in order to comply with the relevant section of Migration Act to make comments on the information which the Tribunal might regard as the reason, or part of the reason, for deciding that the applicant is not entitled to a protection visa (page 75-76 of the Green Book).
The applicant responded the invitation letter which was received by the Tribunal 28 July 2006 by providing a details explanation to the Tribunal.
The Tribunal made a decision which was handed down on 31 August 2006. On its decision record, the Tribunal, apart from other relevant laws the Tribunal applied on, referred to larger amount of information (page 84 to 83 and 95 to 97 of the Green Book) that the Tribunal never invited the applicant to comment on as requested by the relevant section of the Act.
In conclusion, the Tribunal complied with the Act not completely and there is apparent jurisdictional error in the Tribunal’s decision. The Court should order the Tribunal to re-constitute to reconsider the applicant review application according to the Act.
Findings as to the grounds in the application
Ground 1 claims that the Tribunal erred in not accepting the applicant’s evidence about being a Falun Gong practitioner in China. The Tribunal gave detailed reasons for its finding (CB 100) which were open to it on the material before it. The issue was raised with the applicant in the s.424A letter of 19 July 2006 (CB 75-6) and the applicant responded by letter received on 28 July 2006 (CB 77). The Tribunal considered the response by the applicant as stated in its decision (CB 94) under the heading “Response to the Tribunal’s letter.” However, the Tribunal did not accept the explanation and concluded at CB 100.5 that the applicant was not a practitioner of Falun Gong in China. That finding of fact is not subject to review.
Ground 2 seeks to challenge the Tribunal’s finding that the applicant’s participation in Falun Gong activities in Sydney and Canberra was for the purpose of enhancing her claims for protection. The Tribunal gave detailed reasons for reaching that conclusion at CB 100.6-101. The Court finds that the conclusion was properly open to the Tribunal on the material before it. That finding of fact is not open to review. As a result of that finding the Tribunal was correct when it decided that “the Tribunal is required by s.91R(3) to ignore her participation in Falun Gong activities and her acquisition of knowledge about Falun Gong” (CB 101.1).
Findings as to the grounds in the amended application
As to the complaint that the Tribunal never asked the applicant to comment on certain information, the applicant told the Court that she was unable to tell the Court what detail was not disclosed to her.
The Court understands the applicant’s reference to the material at Court Book 95-97 to relate to country information. Such information is excluded from the operation of s.424A(1) by s.424A(3)(a).
The Court accepts the submission by the first respondent that the complaint by the applicant as to the material in Court Book 84-83 is to be taken as a reference to country information.
The Court is required to make that assumption because of the applicant’s failure to establish to the satisfaction of the Court what information she refers to in the Court Book at pages 84-83. The exclusion is s.424A(3)(a) applies. The Court therefore rejects that ground of the amended application.
Conclusion
The Court finds that the first respondent has shown cause why an order for the relief claimed should not be made.
The application and amended application are dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 16 April 2007
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