SZKES v Minister for Immigration
[2007] FMCA 875
•21 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKES v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 875 |
| MIGRATION – Finding of facts not reviewable – adverse finding of credibility based on applicant’s evidence and admissions – s.424A(3)(b) exception applies. |
| Migration Act 1958, ss.476, 424A, 425, 474 |
| WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 |
| Applicant: | SZKES |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 457 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 21 May 2007 |
| Date of Last Submission: | 21 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Ms L. Buchanan 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 $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 457 of 2007
| SZKES |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
This is an application filed on 13 February 2007 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in respect of 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.
The applicant was born on 3 May 1970 and claims to be from China (“the Applicant”).
The applicant is divorced and has one son who remains in China. The son was not included as a family member on the applicant’s application for a protection visa.
The applicant arrived in Australia on 11 July 2006 on a visitor’s visa issued in Beijing on 19 June 2006.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 14 July 2006. In this application he claimed a fear of persecution because he was a practitioner of Falun Gong. The applicant claimed that while working as a cook, a customer gave him information about Falun Gong. The applicant had experienced some pain in his legs and throat, and claimed that after 4-5 months practicing Falun Gong, the symptoms disappeared. The applicant states that since 1999 the Chinese government has “started to press” practitioners of Falun Gong. The applicant claimed that because he had obtained benefits from Falun Gong, he hoped to be able to demonstrate these, and went to the council of Zi Bo and sat in front of its building. The Zi Bo government asked the police to suppress the demonstrators, who were threatened with arrest and imprisonment. The applicant claimed that one month later he was dismissed from his job. The company stated that it did not want to be involved because he was a practitioner of Falun Gong. The applicant claims that after three months unemployment, he obtained another job, but did not dare to mention Falun Gong. He was forced to practice in secret. The applicant heard that many practitioners were arrested or forced to attend re-education classes. The applicant decided to leave China and travelled to Australia. The applicant claims he will be “prosecuted” by the Chinese government if he returns to China (CB 27-29).
This application was refused by a delegate of the first respondent on 17 August 2006 (CB 33).
On 20 September 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on
14 November 2006 (CB 72). The applicant further claimed that he had been detained by the PSB in 2001 and was subsequently fired from his job. He claimed that this was not the firing mentioned in his original statement, but a second firing (CB 73). The applicant further claimed that the PSB had taken him in for brainwashing. These were 2-3 hour sessions, on more than ten occasions, once a week or every ten or fifteen days (CB 74).
On 21 December 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 78-81) (emphasis added):
On the basis of the passport provided at the hearing, the Tribunal accepts that the applicant is a citizen of the People's Republic of China and that his name is [applicant name]. The applicant claims to fear persecution in China because he is a Falun Gong practitioner.
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 an assessment of the credibility of the applicant. 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.
The Tribunal is not required however to accept uncritically each and every assertion made by an 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 not been made out.
However, if the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis the claim might possibly be true (see MIMA v Rajalingam (1999) FCR 220).
The Tribunal accepts that the applicant is outside his country, China. The applicant is asking the Tribunal to accept that he is a Falun Gong practitioner who has attended and participated in Falun Gong activities and that because of this, he fears persecution should he be required to return to China.
The Tribunal had such serious doubts about the credibility of the applicant that it could not accept the evidence, in either the written statement attached to his application to this Tribunal or his oral evidence to the Tribunal as to being a Falun Gong practitioner, as truthful.
First, in relation to the applicant’s oral evidence at the hearing, the Tribunal believed it was at times both inconsistent and implausible.
In the applicant’s oral evidence, when asked as to the names of the exercises of Falun Gong, he said he did not know, he only knew how to practise them and as to why he did not know their names, he said that he was uneducated and could not read.
This is inconsistent with the applicant’s oral evidence that he reads the Zhuan Falun book. The applicant would need to be literate to read this book.
As to implausible evidence, the Tribunal found his recounting of how he came to be detained by the PSB for brainwashing implausible, and connected with this, his evidence as to his employment in the time from 2000 onwards.
The Tribunal considered that the applicant’s evidence as to his brainwashing by the PSB was vacillating – at first he was detained a few times, then it was 10 times. The applicant then said he was brought in every 7 to 10 to 14 days for this brainwashing, which the Tribunal considered was further vacillation. If this was true, this would cover a period of 70-140 weeks, being between one and nearly three years where he was brought in for ongoing brainwashing without ever being actually arrested or further detained. He suggested that the only reason this stopped was because he was ‘on the run’ and the PSB could not find him. The Tribunal found this evidence implausible.
In the context of the applicant’s employment, it also seemed implausible that someone who had been dismissed from two jobs because of Falun Gong membership, and was being subject to ongoing brainwashing, would either be able to find casual employment or remain in that for a number of years if the PSB were looking for him.
Second, there were serious inconsistencies, by way of omissions, between the applicant’s oral evidence at the hearing and the statement attached to his application to this Tribunal.
As to his past employment, the applicant said in his statement that he worked to around September 2000 in Tieludonghuo Zhang and then, after three months unemployment, found another job and he did not dare mention he was Falun Gong. This suggests that he kept this position and that this was the extent of the effect of his Falun Gong membership on his employment.
However, the applicant’s oral evidence to the Tribunal was that he had been a labourer and then a chef in China. As to the jobs around the year 2000, he said he was a chef at the railway canteen, then lost his job because of Falun Gong. Then, the applicant said he got another job a few months later but he only had that for about 2-3 months. He said that he was also fired from this job because of Falun Gong. After that, he was in casual employment in private restaurants such as the Jin Jing Yuan and the Yi Pen Xiang. As to how he got work after 2001, if the PSB knew of him, the applicant said that he got work because he was only a casual. He accounted for this inconsistency by stating that it was such a long time ago he had forgotten.
The Tribunal cannot reconcile the above oral evidence provided by the applicant with the earlier written statement provided to the Tribunal. The addition of another job from which he was sacked because of Falun Gong activity, and then being ‘on the run’ but working casually for a number of years is at significant variance with the written statement. The Tribunal does not accept that the reason for the omission was that he forgot about it as it was a long time ago. This omission challenges the applicant’s credibility.
Another serious omission arose from the applicant’s statement concerning the alleged protest at Zibo Council, where he and others sat in front of building to protest on behalf of Falun Gong. He said that the authorities threatened to arrest them and put them in jail. He stated that he had heard that many Falun Gong practitioners were brainwashed, jailed and made unemployed.
The applicant’s oral evidence to the Tribunal, as stated earlier, was that he was picked up by the PSB some time after this protest and taken away for brainwashing for many sessions, perhaps over 10, lasting 2-3 hours, every 7 to 14 days.
In neither his protection visa application and the attached written statement, or his application to the Tribunal and the attached written statement, does the applicant mention that he himself was picked up and held for brainwashing on numerous occasions for being a Falun Gong practitioner, which one would consider to be of great importance in a protection visa application. Further, in his written statements he mentions that he heard what happened to others and he specifically mentions those who were “required to attend the classes to wash brain”.
As noted earlier, the Tribunal put the above to the applicant for his written comment, by way of letter dated 5 December 2006. No response was received by the due date - 19 December 2006.
The Tribunal is of the view that if this brainwashing had happened to the applicant on even one occasion, he would have mentioned it in his visa application and written statements. The Tribunal does not accept the applicant’s explanation that he could not remember all the details when he was filling out the visa application form and making the written statements. This omission seriously challenges the applicant’s credibility.
Considering all of the above, the Tribunal does not accept the applicant as a credible witness generally and therefore does not accept any of his evidence concerning his practice of Falun Gong. Thus, the Tribunal cannot find that he is a Falun Gong practitioner, either previously in China or here in Australia.
The Tribunal finds that the applicant will not practice Falun Gong or be perceived as a Falun Gong practitioner if he returns to China in the future.
The Tribunal therefore finds that the applicant does not have a well-founded fear of being persecuted as a Falun Gong practitioner should he return to China.
The applicant has not made any claim to fear persecution for any other reason. As a result, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China for reasons of his religion or any Convention reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
(1)I would be prosecuted if I go back to China because I was a Falun Gong practitioner.
(2)The Tribunal member should not deny that I was a Falun Gong practitioner.
(3)I was denied procedural fairness in connection with the making of the decision.
The applicant filed an amended application dated 17 April 2007. In his amended application the applicant set out five grounds as follows:
(1)I would be prosecuted if I go back to China because I was a Falun Gong practitioner.
(2)In the early of 1999, I was working in the kitchen of the Tieludonghuo Zhang as a cook, one of customers chats with me about Falun Gong, and he said that Falun Gong is favour of the balance in our body, and create many wonderful things, and he gave me some materials and documents, till then I really started to practice Falun Gong.
(3)Because I worked in the kitchen for a long time everyday, I caught pains in the parts of my leg and throat, and have taken many medicine pills and there was no obvious change to turn better. I hoped to cure my problems via practicing Falun Gong. After I have practiced Falun Gong for 4-5 months, my painful symptoms disappeared.
(4)However, the Chinese government has started to press those practitioners of Falun Gong since July 1999. Due to the benefits which I have gotten from practicing Falun Gong, I hoped to demonstrate some real facts for Falun Gong. I went to the council of Zi Bo and sat in front of its building. I expected to explain some facts about my real exercises, and demonstrate Falun Gong is good. But the government of Zi Bo even asked the police to suppress us. They threatened to arrest us, to put us into jail. One month later, my employer dismissed me. I came to see my boss, he said that the company did not want to be involved because I practiced Falun Gong.
(5)I was unemployed for three months. In the end of 2000, I found another job. I dared not to mention that I was a Falun Gong practitioner. I only could secretly practise Falun Gong at home. I was heard that many Falun Gong practitioners were put into jail, unemployed, required to attend the classes to wash brain. I felt very stressful. I even could not stand it. Every night I was waked up by bad dream. I think that the only way for me is that I must leave China. I applied to go to Australia. I applied protection visa after I arrived in Australia. I could not go back to China anymore. I will be prosecuted by the Chinese government if I return to China.
Findings as to the grounds in the amended application
Ground one asserts that the applicant would be “prosecuted” if he goes back to China because he was a Falun Gong practitioner. The Court understands this to mean ‘persecuted’ and will treat it that way. This claim was put to the Tribunal and rejected by it as a matter of fact. That finding was properly open to the Tribunal on the material before it and is not open to review. Ground one is rejected.
Ground two sets out factual material put to the Tribunal and raises no ground for review. Ground two is rejected.
Ground three is rejected for the same reason as Ground two.
Ground four is rejected for the same reason as Ground two.
Ground five again asserts factual material considered by the Tribunal, and repeats Ground one, being that the applicant will be prosecuted in China if he returns there. The factual material raises no ground for review. The claim that the applicant will be prosecuted in China was put to the Tribunal and rejected as a matter of fact. That finding was properly open to the Tribunal on the material before it. Ground five is rejected.
Findings as to the grounds of the application
Ground one is the same as ground one in the amended application and is rejected for the reasons expressed in relation to that application.
Ground two complains about a finding of fact by the Tribunal that the applicant is not a Falun Gong practitioner. That finding of fact was properly open to the Tribunal on the material before it, and is not subject to review. Ground two is rejected.
Ground three alleges that the applicant was denied procedural fairness. Section 422B of the Migration Act applies to this application. As a result the full extent of the natural justice hearing rule is set out in Part 7 Division 4 of the Act.
The Court accepts the following submissions for the first respondent.
·The applicant was invited to the hearing in accordance with s.425 (CB 53) and he attended the hearing.
·There is no suggestion that the level of interpretation prevented the applicant from giving evidence and presenting argument.
·It is apparent from the decision of the Tribunal, that it raised with the applicant at hearing the issues arising in relation to the decision under review.
The Court finds no breach of s.425.
Further, the Court accepts that the Tribunal gave to the applicant in writing particulars of information contained in his visa application that it considered would be the reason or part of the reason for its decision to affirm the decision of the delegate (s.424A letter at CB 61). The information in the statement in support of the visa application was sent (with additions) to the Tribunal for the purpose of the application (CB 47-48) and it therefore was covered by the exception in s.424A(3)(b). No other information relied on by the Tribunal came within s.424A(1), as the decision of the delegate was affirmed because the Tribunal rejected the applicant’s credibility based on his own evidence. That evidence is covered by the exception in s.424A(3)(b). Section 424A was not breached. The Tribunal’s conclusions are not “information” within s.424A: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [27].
There was no breach of Part 7 Division 4 of the Act. The applicant was not denied procedural fairness. Ground three is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 6 June 2007
CORRECTIONS
Paragraph 8 line 7 – deleted the applicant’s name and inserted “[applicant name]”.
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