SZJUW v Minister for Immigration
[2007] FMCA 937
•7 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 937 |
| MIGRATION – RRT decision – Chinese applicant feared persecution for Falun Gong activities – Tribunal found no risk of persecution on return – did not assume modification of likely behaviour due to threat of persecution – no jurisdictional error in reasoning – application dismissed. |
Migration Act 1958 (Cth), ss.36, 474, 476
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
| Applicant: | SZJUW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3626 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 7 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr H P T Bevan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,950.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3626 of 2006
| SZJUW |
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 6 December 2006, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 October 2006 and handed down on 31 October 2006. The Tribunal affirmed a decision of a delegate made on 17 June 2006, refusing to grant a protection visa to the applicant.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has 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 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 he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in February 2006, and on 29 March 2006 he lodged an application for a protection visa. The application did not identify any person assisting the applicant, and attached a short, typed statement setting out the applicant’s reasons for seeking protection against return to the People’s Republic of China.
The applicant said that he had become “involved in Falun Gong about 3 years ago when I met a client at her home”. He said that he became friends with this client after finding she had Falun Gong books on the table, and “I studied Falun Dafa from her”. The applicant claimed:
So I thought it was safe to practice Falun Gong. There was a small park near my home and sometimes I went to the park in early morning and practiced in the park. That was in April 2005. I kept doing that for two months until police came to me one day and took me to the police station from the park when I was practicing. …
He said that he did not answer their questions, and was released after making a phone call to his brother‑in‑law who worked in the Public Security Bureau. He claimed that his brother–in‑law advised him to go overseas, and helped him obtain a passport and an Australian visa. He said: “I came to Australia to practice Falun Gong here. I wish you could help me to realize my dream”.
No details of these claims were provided to the Department, and no corroboration was ever provided to the Department or the Tribunal.
A delegate refused the application, indicating various reasons for having concerns regarding the applicant’s credibility, including his ability to depart the People’s Republic of China without any difficulties.
On appeal the applicant attended a hearing held by the Tribunal on 7 September 2006, and he showed it his passport. An account of its questioning is given in the Tribunal’s statement of reasons. I have no reason not to doubt that description, and neither party has tendered a transcript.
The applicant gave some further detail to his claims. He told the Tribunal that after being introduced to Falun Gong by his client, he first began to perform exercises at home, and did so without telling his wife and without her noticing, and without anyone else noticing. He later practised on his own in a park for two months. He claimed that after that time, he was taken and imprisoned by police for four days in June 2005, before being released with the assistance of his brother‑in‑law. He then stopped practising for three months. He continued to work in his employment and was not contacted again by the police. His brother‑in‑law then suggested that he leave the country, and assisted him. He told the Tribunal:
He was not concerned that the police would check up on him and find out that he was a Falun Gong practitioner because he did not think the police were worried about him anymore or would arrest him again because he was practising on his own which would not cause “much problem”.
As to his activities in Australia, he told the Tribunal:
The applicant arrived in Australia on 15 February and started to practice Falun Gong in March. He did not try and contact any Falun Gong groups because he doesn’t know the people involved. He practices at home early in the morning, “sometimes” but not every day. He doesn’t know if any of his friends practice and he hasn’t asked them because he doesn’t know if they would accept it. He does not know that there are many Falun Gong practitioners in Australia. He has not approached the Falun Gong Association in Australia. When asked if he was aware that if he looked in the telephone directory he could find names and numbers of Falun Gong groups he said he had not checked. When the Tribunal put it to him that if he got hold of Falun Gong groups he could learn more about the practice he said that he wanted to.
The Tribunal questioned the applicant to determine his knowledge and commitment to Falun Gong philosophies, and discovered what it regarded as significant defects in his knowledge. At the end of the hearing:
The applicant said that he was no longer in contact with the client who introduced him to Falun Gong. He said that his wife has never had any problems with the police and had not been asked of his whereabouts. He said his work colleagues had not been approached by the police. The Tribunal asked him if he feared that he would be arrested if he returned and he practiced in the park. He said that if he practiced in the park he would be arrested but that if he practiced at home he would not be. He claims that he prefers to practice on his own rather than in a group and this is why he hasn’t contacted any Falun Gong groups.
The Tribunal referred to country information concerning the suppression of Falun Gong practitioners in China, who were regarded as belonging to unregulated religious groups who posed a potential challenge to authority.
Under the heading “Findings and Reasons”, the Tribunal said:
The applicant claims to be a Falun Gong practitioner who was introduced to the Falun Gong exercises by a client in 2003 and practised them at home for two years. The Tribunal accepts that the applicant performs an exercise routine but, on the basis of independent country information referred to above and set out in the following paragraphs, the Tribunal is not satisfied that he is a genuine Falun Gong practitioner. At the hearing the applicant displayed little or no knowledge of the principles or practice of Falun Gong, as set out below.
The Tribunal explained the defects which it identified in his knowledge of Falun Gong, and concluded:
In short the applicant has not demonstrated knowledge of the fundamental principles and moral code which underlies Falun Gong practice as would be expected of a genuine Falun Gong practitioner. He has not contacted any Falun Gong groups or practised in public since he has arrived in Australia as would usually be expected of a genuine Falun Gong practitioner in Australia. Based on the evidence set out above, the Tribunal is not satisfied that he is a genuine Falun Gong practitioner.
The Tribunal then made further findings concerning the applicant’s claims to have practised Falun Gong in the park:
The Tribunal is not satisfied that the applicant practised Falun Gong in the park for two months in 2005. The applicant states that he had practiced at home for two years prior to this and that since he has been in Australia he has practised at home. He states that he knew that if he practised in the park in China he could be arrested but he chose to do so on his own for fresh air. The Tribunal finds that it is implausible that the applicant, who was doing the exercises to “strengthen his body and get rid of diseases” and who knew nothing of the cultivation of xinxing, would choose to do Falun Gong exercises in the park for fresh air when he was aware of the possibility of arrest.
The Tribunal then said that, as a result of its two findings, it did not accept that he was questioned by the police, and found that he had not “suffered any serious harm in the past in the PRC for any Convention reason”.
The Tribunal addressed the future risks facing the applicant if he returned to China:
The Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm if he were to return to the PRC now or in the reasonably foreseeable future. The Tribunal has found that the applicant may perform an exercise routine but that he is not a genuine Falun Gong practitioner. The applicant has stated that his wife has not been contacted by police or asked of his whereabouts. The applicant has confirmed that he prefers to practise these exercises on his own and is currently practising at home, even though he is able to practice freely in public in Australia. The applicant claims that he will not be of interest to the authorities if he practices at home. The Tribunal is satisfied that the applicant practices his exercises at home as a personal choice and not because he fears persecution if he practises in public. The Tribunal finds that there is not a real chance of persecution as the applicant practices his exercise routines at home and is not a genuine Falun Gong practitioner so he would not be of interest to the authorities. The applicant has not claimed to fear persecution for any other reason and no other reason is suggested on the evidence before the Tribunal.
The applicant has been given the opportunity in the course of the preparation of his case to file an amended application and written submissions after obtaining legal advice, but he relies only upon a single ground set out in his original application:
1.The RRT decision was affected by Jurisdictional error in that the RRT acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
Particulars:
The Tribunal stated in the decision that there is not a real chance of persecution as he practises his exercises at home and is not a genuine Falun Gong practitioner so he would not be of interest to the authorities.
By making the above finding the Tribunal incorrectly assumed that a genuine Falun Gong practitioner must practice in public.
By making the above finding the Tribunal incorrectly assumed that only those Falun Gong practitioner who practice in public will be persecuted by the Chinese government.
The argument seeking to show lack of logic in the Tribunal’s reasons is, in my opinion, not correctly premised on how the Tribunal actually reasoned. The finding of the Tribunal which rejected his claimed past persecution did not proceed upon the assumption suggested. Rather, it proceeded by assessment of the applicant’s lack of demonstrated knowledge of the philosophies of Falun Gong, and from what it regarded as implausibilities in his claim to have practised alone in a park in China for two months. I therefore do not accept the argument presented in the application.
I cannot otherwise see anything illogical or unreasonable in the Tribunal’s reasons which could provide jurisdictional error affecting its decision.
Counsel for the Minister raised whether the Tribunal’s reasoning revealed an error such as was found by the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473, when assessing the applicant’s risk of persecution if he returned to China. The subsequent authorities in the High Court and Federal Court have drawn a distinction between a Tribunal assessing risk based on an assumption that a refugee claimant could modify his behaviour in the face of threats of persecution so as to avoid persecution, and a Tribunal which assesses a refugee claimant’s likely future behaviour as not risking persecution, without making that assumption. The relevant authorities have been recently considered in the Full Court in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [65] and following.
In my opinion, the present Tribunal followed reasoning which was accepted to be permissible in NBKT at [76]. The Tribunal formed an opinion that: “the applicant practices his exercises at home as a personal choice and not because he fears persecution if he practises in public”. On the evidence which was before the Tribunal, I consider that this assessment was open to it, and does not reveal a misapprehension as to the effect of the definition of “refugee” under the Refugees’ Convention as adopted by s.36 of the Migration Act.
I have been unable to discern any other arguable jurisdictional error affecting this decision. In my opinion, the Tribunal’s decision is a private 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: 22 June 2007
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