SZKCA v Minister for Immigration
[2007] FMCA 1895
•16 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1895 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s conclusion clear notwithstanding typographical error in decision – Tribunal’s conclusions based on independent country information had sufficient factual basis to be open – Tribunal’s conclusions did not display irrationality or illogicality – errors of fact within jurisdiction do not amount to jurisdictional error. |
| Migration Act 1958, ss.91R, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | SZKCA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 238 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 October 2007 |
| Date of Last Submission: | 23 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. B. Zipser |
| Counsel for the Respondents: | Mr. J. Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 238 of 2007
| SZKCA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she practised Falun Gong. She alleges that while in China she was a Falun Gong practitioner and distributed anti-Communist material and that this subsequently led to her being arrested, detained, tortured and fined. The applicant left China and arrived in Australia on 29 June 2006 where, she alleges, she has practised Falun Gong three or four times a week in Campsie and has distributed material in Martin Place and Campsie.
The applicant claims to fear persecution in China because of her practice of Falun Gong and her anti-government activities.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
18 September 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 13 of the Tribunal’s decision (Court Book (“CB”) pages 76 – 85). Relevantly, they are in summary:
a)the applicant began practising Falun Gong in February 1999 and her health improved;
b)the applicant continued to practise Falun Gong even after the Chinese government cracked down on the practice on 20 July 1999;
c)in early September 1999 the applicant was practising Falun Gong in a park when two police officers pushed her into a police car and took her to a police station where she was declared to be under detention for investigation;
d)the applicant was detained for a month or longer, during which she received inhumane treatment and was forced to do physical labour and to write confessions;
e)the applicant paid RMB 6000 Yuan as a fine for her release;
f)for a year after her release the applicant was required to report to the police once a week and to seek their consent whenever she went out;
g)the applicant did not give up Falun Gong after her release from detention because she did not believe she was guilty. She practised secretly at home and read Falun Dafa books;
h)another Falun Gong practitioner brought the applicant some books and newspapers from Korea in May 2005 supporting Falun Gong. The applicant secretly distributed them to let people know the true nature of the Communist Party regime in China. At the end of April 2006 the printed material the applicant and her friend had distributed, including “Epoch” and “Nine Commentaries on CPC”, was seized by the local Public Security Bureau (“PSB”). The applicant and the other practitioner were asked to report for questioning but were not detained as the PSB did not have sufficient evidence; and
i)the PSB was still investigating the applicant after she departed for Australia and if she returns to China the PSB will find out that she was one of the distributors of this material and she would be arrested and imprisoned.
At the Tribunal hearing, a witness for the applicant gave evidence that he and the applicant had practised Falun Gong together in Australia since July 2006.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was not satisfied that the applicant was a genuine Falun Gong practitioner in China, noting that:
i)her claims were very general, vague, limited and revealed no knowledge or understanding of Falun Gong;
ii)she provided “no evidence whatsoever” that she was a Falun Gong practitioner in China;
iii)she failed to avail herself of refugee protection in South Korea when she went there for a week in November 2005;
iv)if the applicant was a known Falun Gong practitioner as she claimed to be then she would not have been issued with a passport in her home province of Henan on 20 October 2005 even if she did pay a bribe;
b)the Tribunal did not accept the applicant’s claim that the reason she was issued with a passport was because the authorities assumed that she was no longer a Falun Gong practitioner;
c)the Tribunal did not accept the applicant’s claim that she was unable to demonstrate her knowledge of Falun Gong at the hearing because she was very stressed, noting that:
… if the applicant had been a Falun Gong practitioner in China for some 17 [sic] years then she would have given a thorough and comprehensive explanation of Falun Gong and be enabled to clearly demonstrate her knowledge of it even if she found the Tribunal hearing stressful. (CB 87);
d)the Tribunal did not accept that that applicant distributed anti-government material, noting that she was unable to give a reasonable outline of what was contained in the material or to provide any evidence to support this claim such as a copy of the material or the arrest warrant or detention order;
e)the Tribunal did not accept that the applicant was detained by police in China, inhumanely treated, not allowed to sleep, forced to write confessions or had to pay a fine to obtain her release;
f)the Tribunal found that the applicant was not a credible witness and was satisfied that the applicant had manufactured her claims in order to enhance her claims for a protection visa;
g)the Tribunal was not satisfied that the applicant fears persecution in China on the basis of her political beliefs, noting that she did not make any specific claims in this regard; and
h)despite the evidence from a witness that the applicant had practised Falun Gong in Australia, the Tribunal found that the reason the applicant was practising Falun Gong in Australia was to enhance her claims for a protection visa and so s.91R(3)(b) of the Act required the Tribunal to disregard this conduct.
Proceedings in this Court
At the hearing the applicant abandoned the second ground set out in her application filed on 25 January 2007. She relied on the remaining ground which was pleaded in the following terms:
The Tribunal found that the applicant was not a Falun Gong practitioner in China. The Tribunal fell into jurisdictional error in making this finding.
In her written submissions the applicant particularised that ground as follows:
a) The Tribunal, in the course of finding that the applicant was not a Falun Gong practitioner in China, stated that the applicant claimed she had been a Falun Gong practitioner in China for 17 years. The applicant made no such claim. In the circumstances, the Tribunal fell into jurisdictional error. (“17 years practice issue”)
b) The Tribunal, in the course of finding that the applicant was not a Falun Gong practitioner in China, rejected the applicant’s claims because she was issued with a PRC passport in October 2005. The Tribunal fell into jurisdictional error in making this finding. (“Passport issue”)
c) The Tribunal, in the course of finding that the applicant was not a Falun Gong practitioner in China, rejected the applicant’s claims because in her protection visa application form she claimed that she had never been convicted of or changed with a crime or offence. (“PVA issue”)
17 years practice issue
The applicant submitted that the Tribunal’s decision indicated that amongst its reasons for rejecting the applicant’s claims was its belief that:
a)the applicant claimed that she “had been a Falun Gong practitioner in China for some 17 years”; and
b)therefore the applicant practised Falun Gong openly and publicly for at least 10 years before the crackdown in 1999.
In support of that submission, the applicant relied on the following passage of the Tribunal’s decision quoted above at [8(c)]:
However, the Tribunal is satisfied that if the Applicant had been a Falun Gong practitioner in China for some 17 years then she would have given a thorough and comprehensive explanation of Falun Gong and be enabled to clearly demonstrate her knowledge of it even if she found the Tribunal hearing stressful. (CB 87)
It should be noted that there was no evidence that the applicant’s alleged involvement with Falun Gong extended to seventeen years’ duration.
The passage quoted above at [12] follows and is logically consequent and dependent on another passage in the Tribunal’s decision which is expressed in the following terms:
… from these very limited and basic responses revealing no detailed knowledge or understanding of Falun Gong and due to the absence of any evidence provided by the Applicant, the Tribunal has not been able to satisfy itself that the Applicant was in fact a Falun Gong practitioner in China who had been practising their [sic] for some 17 years since 1999, and the Tribunal does not accept this claim. (CB 86)
In my view the reference to “17” is clearly a mistake and should be “7”. As the first respondent submitted, there is no doubt that the Tribunal appreciated that the applicant commenced practising Falun Gong in February 1999.
Although the applicant says the Tribunal found the applicant to have practised for over “17 years” and that this was a finding reached in the absence of evidence, the only passage where a finding is made in relation to “17 years” is the passage quoted above at [13] where it is clearly a typing error. Consequently, that reference to “17 years” cannot truly be characterised as a finding that the applicant had practised Falun Gong in China for seventeen years. What I find the Tribunal to have been saying there was that the applicant had been a Falun Gong practitioner in China for seven years since 1999. I further find that this finding was the basis for its conclusion at CB 87, quoted at [12] above that the applicant ought to have been able to give a thorough and comprehensive explanation of Falun Gong at the hearing even if she found the Tribunal hearing stressful.
I find that the reference in the passage quoted above at [12] to “17 years” rather than to the correct figure of seven years does not indicate that the Tribunal relied on irrelevant material in reaching its decision or that the mistake otherwise invalidated the Tribunal’s reasoning. In light of my findings at [13] and [14] above, the applicant would have to show that the Tribunal did mean to say seventeen years and to have erroneously understood the applicant to have practised for seventeen years. However, there is nothing to indicate this and, in fact, the evidence indicates quite the contrary.
Consequently, this asserted ground of review is not made out.
Passport issue
The applicant submits that the Tribunal’s finding quoted below was made without evidence and was irrational and illogical:
… the Tribunal is satisfied that if the Applicant was a known Falun Gong practitioner who had been detained for a month in September 1999 during which she was forced to write confessions and after her release she was required to report to the police once a week and to seek their consent when she went out, and this surveillance continued for a year, then she would not have been issued with a PRC passport in her own home province of Henan on 20 October 2005 even if she did pay a bribe, and the Tribunal does not accept this claim … (CB 87)
The first element of this ground raised by the applicant was that there was no evidence to support the Tribunal’s finding that she would not have been issued with a PRC passport in October 2005 if she had been a known Falun Gong practitioner who had been detained for a month in September 1999 and subsequently required to report to the police. The applicant submits that if the Tribunal makes a finding of fact of which there is no evidence and that finding is a critical step in its ultimate conclusion then this may well constitute a jurisdictional error. However, that submission depends on there having been a total lack of evidence to support the finding in question and in this case I find that there was evidence to support the Tribunal’s conclusion.
The applicant’s argument depends on selective references to some independent country information which is set out by the Tribunal at pages 9 – 12 of its decision (CB 81 – 84). The applicant refers to independent country information disclosing that passports would not be available to persons considered to be harmful to Chinese state security, to persons who would cause a major loss to Chinese national interests, to persons on a wanted list or to persons other than an “ordinary adherent to Falun Gong who practises privately”.
The applicant submits that she does not meet the criteria which that information indicates would be the basis for the refusal of a Chinese passport. However, the passages quoted by the Tribunal in its s.424A letter to the applicant dated 27 November 2006 and to which the applicant makes reference were merely examples of the information which the Tribunal relied on in reaching the following conclusion expressed in the s.424A letter and quoted in the Tribunal’s decision:
… independent country information available to the Tribunal which was referred to at the hearing makes it clear that people of concern to the PRC authorities are not issued with passports or exit permits and to be issued a passport requires the approval of a person’s work unit. (CB 81)
Amongst the information quoted was the following:
Generally speaking, individuals who have obtained Chinese passports and exit permits to leave China … have been thoroughly vetted by the security authorities … and we assume they would not be on any “wanted list” if they were to return to China. (CB 81 – 82).
The Tribunal’s conclusion relied upon by the applicant and quoted at [17] above is one which was based on the Tribunal’s analysis of the country information before it which it synthesized in the statement quoted at [20] above. That conclusion was open to it on the evidence.
Although the Tribunal does not say so in so many words, it is apparent that it reached the conclusion that if the applicant’s alleged history was true she would have been a person of concern to PRC authorities and would not have been issued with a passport. Consequently, the Tribunal’s conclusion was not made without evidence to support it and as a consequence no jurisdictional error is demonstrated.
The other basis of this ground raised by the applicant was that the Tribunal’s finding was irrational, illogical and not based on findings or inferences of facts supported by logical grounds. For the reasons given concerning the “no evidence” submission, the Tribunal’s finding does not satisfy the illogicality test discussed in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 and this element of this asserted ground of review is not made out either.
PVA issue
In relation to this asserted ground of review the applicant relies on the following passage from the Tribunal’s decision:
It also put to her that she claimed in her protection visa application that she was detained by the police because she practiced [sic] Falun Gong in the park in September 1999, and then was held in detention for investigation for a month or longer. However, in response to question 6 of Part B of her protection visa application form she claimed that she had never been convicted of a crime or offence in any country or charged with an offence that is currently awaiting conviction and that subject to any comments she may have, this may indicate that she was not in fact detained in China because she was a Falun Gong practitioner or for any other Convention related reason. (CB 86)
The applicant submits that this asserted inconsistency was one of the bases of the Tribunal’s decision but was not, in fact, an inconsistency.
It is to be noted that the Tribunal did not expressly rely on this purported inconsistency which it had put to the applicant at the hearing, although it is possible that it was one of the reasons for the Tribunal’s decision. This is because one page later in its decision record it said:
In short, and given all the above, the Tribunal does not accept that the Applicant was a Falun Gong practitioner in China.
(CB 87)Thus it may implicitly have been one of the matters which formed part of the basis of the Tribunal’s decision.
However, even if, as it appears to be the fact, the matters identified by the Tribunal were not inconsistent with each other, this does not vitiate the Tribunal’s finding because an error of fact within jurisdiction, as this appears to have been, does not amount to jurisdictional error. Moreover, it is apparent that the Tribunal’s conclusion was based principally upon the applicant’s shallow knowledge of Falun Gong and her failure to provide “any evidence whatsoever that she was a Falun Gong practitioner in China”. Therefore there was another basis for the Tribunal’s finding, in any event.
Consequently, jurisdictional error has not been demonstrated in respect of this asserted ground of review.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 16 November 2007
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