SZJVW v Minister for Immigration - [2007] FMCA 596

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJVW v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 596

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.91R(3), 424A(1), 476

Applicant:

SZJVW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3710 of 2006

Judgment of:

Smith FM

Hearing date:

27 March 2007

Delivered at:

Sydney

Delivered on:

27 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms M Mafessanti

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $1,650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3710 of 2006

SZJVW

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 12 December 2006, in which the applicant seeks an order that the respondents show cause why a remedy should not be granted 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 28 October 2006 and handed down on 16 November 2006. The Tribunal affirmed a decision of a delegate made on 27 October 2005, refusing to grant the applicant a protection visa.
The period between the delegate’s decision and the Tribunal’s decision is accounted for by an earlier decision handed down by the Tribunal on 9 February 2006, which was arrived at after the applicant declined an opportunity to attend a hearing. That decision was set aside by consent order of this Court on 10 July 2006.
The present application was returnable before me at a first court date on 23 January 2007. The applicant attended, and had the assistance of a Cantonese interpreter. The nature of the proceeding was explained to him by me and in an information sheet. The applicant was given an opportunity to file an amended application and any evidence, after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that his application might be dismissed today if it did not raise an arguable case for the relief claimed.
The Court’s file indicates that a referral was sent to him on 25 January 2007 by the Registry, and notice of the referral was also sent to the appointed barrister. In my opinion, the applicant has been given sufficient opportunity to obtain advice from that source and from any other sources. He has filed an amended application which I shall address below. Today, he sought more time to obtain advice, but I declined an adjournment.
The applicant arrived in Australia in September 2005, and lodged his application for a protection visa on 18 October 2005. A statement attached to his application explained his claims to fear persecution if he returned to his country of nationality, the People’s Republic of China.
He claimed to have lost employment in 1996, after refusing to bribe his supervisor. He said that he became depressed, and in early 1998 “my wife fled to Australia from Hong Kong due to the conflict of belief and never came back”. He said: “to seek the spiritual support and good health, I started to learn Falungong occasionally and soon deeply into it”. He said that, after Falun Gong was banned in 1999, he practised secretly and borrowed books and videos from the members. He claimed that in August 2003 police searched his home and found “large amounts of books and materials”, and he was arrested and imprisoned in a detention centre for one month where he was tortured and released eventually. He said:
Since then, I was supervised by the residence commission and forced to attend the class of reformation. I could not live a normal life and my son was bullied in the school.
He claimed that a relative in a travel agency arranged for him to get a passport and visa to come overseas. No supporting material was given to the delegate.
The application was refused by the delegate on the ground that: “I cannot find that the applicant has the profile that will attract the adverse interest of the authorities in China in the reasonably foreseeable future”. The delegate also said that obtaining a Chinese passport and departing China: “further indicates that his Falun Gong activities have not given him a profile that would lead to a real chance of Convention based persecution should he return to China”.
As I have indicated, the applicant declined to attend a hearing when invited by the Tribunal as first constituted. The reasons for the remitter do not appear in the material before me.
After the remitter, the applicant was invited to a second hearing, which he attended on 22 September 2006. At the hearing, the Tribunal questioned the applicant concerning his claims. A transcript is not in evidence, but the Tribunal gave a description in its statement of reasons.
At the hearing, the applicant made a new claim as to what had happened to him in China relating to his wife’s religion as a Christian. The Tribunal recorded:
I asked the Applicant what he feared would happen to him if he returned to China now. The Applicant said that he had been arrested in mid August 2003 because he had been practising Falun Gong. He said that another reason was that his wife, who had come to Australia in 1998, had a child born in Australia and she was a Christian who had been involved in an underground Christian church in China in the past. He said that if he went back it would not be good. He said that between 1998 and 2005 the police had often questioned him, asking him where his wife was. He said that he had been afraid to tell them where she was. He said that he also had another son who was still in China. He said that he was not the father of the child his wife had had in Australia and that the father of her child had disappeared. He said that his wife was living with friends and that he sometimes went to visit her. Later in the hearing he said that he sometimes stayed with her.
The applicant maintained his account of practising Falun Gong, and being detained in 2003. He claimed to have been practising Falun Gong in Australia, and told the Tribunal “that he could ask [people with whom he claimed to have been practising] to provide me with evidence that he was a Falun Gong practitioner”. However, no such evidence was ever presented to the Tribunal.
The applicant was asked questions concerning the philosophies and practices of Falun Gong, and was asked to demonstrate one of its exercises. The Tribunal also questioned the applicant about how he had obtained a passport, and the implications of being able to leave China using that passport.
After the hearing, the applicant was sent a letter inviting him to comment on information which was inconsistent with information in the protection visa application. This included information as to his employment and residence, which had been given to the Australian Embassy when obtaining the visitor’s visa. Information concerning the obtaining of his passport and his use of it was also put to him, as was the fact that his claimed fear of persecution relating to his wife’s religion had not previously been raised. He was warned that these matters were relevant to particular claims and to his “overall” credibility.
The applicant responded with a written statement, and also forwarded to the Tribunal some photographs showing him participating in demonstrations and handing out leaflets in Australia.
Under the heading “Findings and Reasons”, the Tribunal accepted that the details given to the Australian Embassy in the visitor’s visa application were incorrect. However, it said: “I consider that this suggests that the Applicant was prepared to tell lies in order to obtain a benefit to which he believed he would not otherwise be entitled”.
The Tribunal treated adversely the fact that the applicant had not originally claimed in his visa application that he had experienced problems as a result of his association with his wife, nor that he feared being persecuted by reason of that association. It therefore did not accept that any problems had been experienced by the applicant after her departure, while he remained in China between 1998 and 2005.
The Tribunal also noted that the applicant’s descriptions of his current relationship with his wife who was living in Sydney had changed, and that he now claimed that this had improved. It said:
I note that there is no evidence before me from the Applicant’s wife as to how she views their current relationship but even accepting the Applicant’s statements with regard to the current state of their relationship there is nothing in the evidence before me to suggest that the Chinese authorities are aware that the Applicant and his wife have re‑established their relationship. Moreover, for reasons given above, I do not accept that the Applicant experienced any problems as a result of his association with his wife between the time when he says she fled to Australia from Hong Kong in 1998 ‘due to the conflict of belief’ until he himself came to Australia in 2005. I do not accept on the evidence before me that there is a real chance that the Applicant will experience any problems as a result of his association with his wife if he returns to China now or in the reasonably foreseeable future whether this claim is regarded as being based on the Convention ground of membership of the particular social group constituted by his family or imputed religious belief based on his evidence that his wife was a Christian who was involved in an underground Christian church in China in the past.
The Tribunal then addressed the applicant’s claims to have been persecuted, and to fear future persecution, because of his involvement in Falun Gong. The Tribunal considered that there were inadequacies in the applicant’s knowledge of Falun Gong literature and philosophy. It noted that he had produced no evidence to the Tribunal from his fellow practitioners. It expressed doubt at his claims that he had been imprisoned in a detention camp, arising from his being able to obtain a passport in his true identity. The Tribunal concluded:
Since for reasons given above I do not accept that the Applicant has been practising Falun Gong either in China or in Australia, and having regard to the fact that the Applicant has consistently said that his passport, issued in August 2005, is in his true identity, I do not accept that the Applicant had come to the adverse attention of the Chinese Government prior to August 2005. I do not accept that he was imprisoned in a detention centre from 15 August 2003 until 26 September 2003 because he was practising Falun Gong in China, nor that his home was searched and large amounts of books and materials were found, nor that after his release he was supervised by the residence commission and forced to attend ‘the class of reformation’ as he said in the statement accompanying his original application. Since I do not accept that the Applicant has been practising Falun Gong either in China or in Australia, I do not accept that there is a real chance that he will practise Falun Gong if he returns to China now or in the reasonably foreseeable future. Since I do not accept the Applicant’s evidence regarding the problems he claims to have had as a result of his past involvement in Falun Gong I do not accept that there is a real chance that he will be persecuted for reasons of his real or perceived religious beliefs or his real or imputed political opinion, based on his claimed involvement in Falun Gong, if he returns to China now or in the reasonably foreseeable future.
The Tribunal then addressed the applicant’s photographs which suggested that he had handed out leaflets and attended a demonstration in Australia. It said there was no evidence that the Chinese government was aware of the applicant’s activities, or that there was a real chance that the Chinese government would become aware of them. It also said:
In any event I am unable to be satisfied on the evidence before me that the Applicant’s participation in such activities in Australia was engaged in otherwise than for the purpose of strengthening his claim to be a refugee …
The Tribunal therefore felt obliged to disregard his evidence as to his conduct in Australia, pursuant to the provisions of s.91R(3) of the Migration Act.
The Tribunal was not satisfied that the applicant had a well‑founded fear of being persecuted for a Convention reason if he returned to China.
I have considered the reasoning and procedures of the Tribunal, and am not satisfied that its decision was affected by jurisdictional error.
The amended application filed by the applicant reframed the contentions made in his original application. It has the following grounds:
1.RRT’s decision contains a procedural error by not addressing my specific claims owning to my participation in Falun Gong.
Details
(1)RRT made an unfavourable decision to my application. Main reason is based on the asserts that is relevant to my overall credibility.
(2)The reason they made the conclusion of my credibility is sourced from their presumption based on the so‑called country’s information instead of investigation on my specific circumstances.
(3)The other reason of their asserts is that I provided inconsistent information about my relationship with my wife. RRT asserts that in the initial statement I provided information that I had no clear idea how relationship would be going between my wife and I and in later hearing and further material I provided I said that I wished RRT could consider my current relationship with my wife. Therefore, they made the conclusion that they didn’t believe what I told in my application.
(3A)As a matter of fact, I provided all true information. The application is my own application. I just provided the information of my wife according to RRT’s invitation to comments. My relationship with my wife is developing. I gave RRT information during different time period, therefore, there is slightly different information.
(4)Therefore, RRT is just finding the reason to refuse my application instead of giving a reasonable grounds to refuse my application according to the relevant law and fact.
2.RRT and DIMIA failed to look at the fact fairly and reasonably which disregard and neglected my evidence of involvement in Falun Gong Practice.
Details
(1)After I came to Australia, I have been in participating in Falun Gong practice. I provided some photos of demonstration and Falun Gong practice as evidences to support my claim.
(2)My evidences was disregarded and neglected. RRT’s officer by saying that “there is no evidence before me as to the content of the leaflets the Applicant was handing out nor is there any evidence that the Chinese Government is aware of the Applicant’s activities depicted in the photographs or that there is a real chance that Chinese Government will become aware of those activities.”
(3)I believe that RRT’s conclusion in my evidence contains serious prejudice. The evidence I submitted described my participation in Falun Gong practice and activities, which is also every true Falun Gong practitioner attended in Australia. I have no official source to prove whether it is concerned by Chinese Government or not.
(4)I didn’t also received any invitation, according to Section 424A, for further information or comments on this issue, which discriminate my right as an applicant. I also provided my request to provide witness statement to support the application in the hearing which I believed crucial to my application, however, there is no positive invitation had been confirmed from the officer.
In relation to Grounds 1(1) and (2), I do not accept that it is arguable that the Tribunal did not investigate the applicant’s specific claims. I think it clearly did so, and I am unable to identify any claim that was not addressed.
In relation to Ground 1(3), the Tribunal did not draw adversely from the different statements made by the applicant concerning his relationship with his wife. Rather, it assessed his claims on his evidence at its highest. It was not satisfied that the applicant had made out a well‑founded fear by reason of his association with his wife. I can see no arguable error in its reasoning in that respect.
Grounds 1(3A) and (4) appear to argue that, because the applicant maintains the truth of his information given to the Tribunal, the Tribunal must have been “just finding the reason to refuse my application”, ie that it assessed his claims with a closed or biased mind. However, there is no evidence before me that gives substance to this argument. It was the duty of the Tribunal to assess the applicant’s claims for itself, and it has done so in its final decision. The fact that its conclusions were adverse does not show that the Tribunal might not have genuinely considered the claims before it.
In relation to Grounds 2(1) to (3), on the evidence before me it is not correct that the applicant gave the Tribunal photographs showing his involvement in “Falun Gong practice”. I do not accept that the Tribunal disregarded the evidence presented by him in relation to the photographs. Plainly it did assess them, and I do not think it is arguable that there was any jurisdictional error in how the Tribunal dealt with that evidence.
The complaint in Ground 2(4), as to a breach under s.424A(1), is unclear. I have been unable to identify any information which was not put to the applicant in the letter which was served under that section, and which was required to be put to the applicant in that way. The Tribunal was not obliged to put to the applicant its thinking on the issues going to the credibility of his claims. Those issues were plainly live issues in the matter before the Tribunal.
I do not understand the complaint in the last sentence of Ground 2(4). There is no evidence before me to suggest any failure of procedure on the part of the Tribunal in relation to the providing of witness statements by the applicant. On the material before me, it is not arguable that the applicant was not given the opportunity he was entitled to under the legislation to put forward all the evidence in support of his claims which he wished to provide.
For the above reasons, I am not satisfied that the applicant’s application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty‑nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 19 April 2007