SZKEY v Minister for Immigration and Citizenship

[2007] FCA 1791

FEDERAL COURT OF AUSTRALIA

SZKEY v Minister for Immigration and Citizenship [2007] FCA 1791

SZKEY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1264 OF 2007

MANSFIELD J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1264 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKEY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	16 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay to the first respondent costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1264 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKEY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	16 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate given on 15 June 2007.  The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 13 December 2006 and handed down on 9 January 2007.  The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant to the appellant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).

2. The appellant was born in 1961.  He is a national of the People’s Republic of China.  He came to Australia on a tourist visa issued on 15 June 2006, and on a lawfully issued passport of the People’s Republic of China, which was issued in December 2005.  He arrived in Australia on 22 June 2006, and applied for a protection visa shortly after that time.  As noted above, his application for a protection visa to date has been unsuccessful. 

3. The reason the appellant claimed to be entitled to a protection visa is that he claimed to fear persecution by the Chinese authorities if he were to return there by reason of his practice of Falun Gong.  He claimed to have been a practitioner of Falun Gong since 1998.  He said that he had been prevented from participating in Falun Gong protest activities in 1999 and then to have been harassed by the local neighbourhood committee between 1999 and the time when he came to Australia.  He said from 1999 he had been unable to practise Falun Gong other than in private or in secret places, in order to avoid persecution.  He also claimed to have been detained in January 2006 by the police because he was a Falun Gong practitioner, and then to have been released on certain, quite detailed terms.

4. The Tribunal appears to have accepted that, if the appellant were a genuine practitioner of Falun Gong, he may face a real chance of persecution if he were to return to China.  However, it did not accept that he is a Falun Gong practitioner.  It gave reasons for that conclusion as follows:

   The Tribunal found the applicant to have scant knowledge of Falun Gong.  He has learned a few basic facts about the movement – the approximate date of the government crackdown on the movement, the location of the protests that triggered it and the name of the movement’s founder.  He did not know critical facts such as the name of the basic text or the number of exercises, and applied key concepts such as the precept ‘truth, compassion and forebearance’ and the name of the key book Zhuan Falun with little or no apparent understanding of their actual significance.  The Tribunal does not accept that a person who has been involved in the movement since 1998, and has promoted the practice (such as hosting practice sessions for groups of more than 10), would know so little.  In the Tribunal’s opinion, his level of knowledge is not consistent with that of a genuine practitioner.

   The applicant’s claims regarding his practice in China and consequent experiences at the hands of authorities – detention, forced renunciation and monitoring, and the consequent need to modify his conduct to avoid more serious harm – reflect some of the reported forms of harm inflicted on genuine Falun Gong practitioners.  However, the applicant presented them in such vague terms that the Tribunal does not accept them to be based on his own personal past experiences.

   The Tribunal’s concerns are reinforced by the applicant’s account of his experiences in Australia.  In contrast with his claimed level of involvement in China, where the practice entails considerable risk, the applicant has according to his evidence at hearing, given Falun Gong seemingly low priority in Australia.  He has not acquired the text, and the Tribunal finds his comment that he does not understand it or that he has to rely on others to guide  him to be an unsatisfactory explanation as to why he has not made some effort to familiarise himself with the text.  The applicant named a few claimed fellow practitioners in Australia, but provided no details of these people and seems to have expended little thought or effort on how they might assist him practically, including in his current application.  The Tribunal is not persuaded by the applicant’s hesitant references to practice sites and times in Australia that this is based on any direct involvement.

   At hearing, the applicant referred to the transferral of his household registration from Henan to Shijiazhuang in 2003, suggesting that this was a response to (and thus evidence of) the threats arising from his Falun Gong adherence.   Although the Tribunal found the applicant’s account at hearing of  his residency in Henan and Shijiazhuang to be piecemeal and complex, what emerged was that he has long-term family and business interest in both places.  The Tribunal accepts that the applicant transferred his household registration to Shijiazhuang in 2003, as claimed.  However, the applicant’s suggestion that this may have been linked with his Falun Gong interests is not supported by other material – for instance, he said that from 1999 to 2006, the neighbourhood committee called him in regularly, but he did not allude to any developments in or around 2003 that might have led him to have to change his household registration.  On the material before it, the Tribunal does not accept that the applicant’s change of household registration in 2003 was prompted by any Falun Gong reasons, but was unconnected to the applicant’s refugee claims.

   In sum, the Tribunal finds the applicant’s knowledge of Falun Gong, his account of his attachment to the movement, his description of his practice and experiences in China, and his contacts and practice in Australia to be inconsistent with those of a genuine Falun Gong practitioner.  The Tribunal does not accept that the applicant is a Falun Gong practitioner, or has any association whatsoever with the movement; or that he will … be perceived as such by anyone.  It finds that he has fabricated this claim to establish a basis for refugee status.

5. The consequence was that the Tribunal did not accept that the applicant had suffered in the past in China by reason of being a Falun Gong adherent.  It did not accept that he had been involved in protests in 1999, that he had been harassed or intimidated in the following years, that he had been detained in 2006, or that he faced any difficulties in obtaining a passport.  It was reinforced in those conclusions by his ability to travel to Australia on a lawfully issued passport, and by the elapse of time between January 2006 when he said he had been detained by the authorities and May 2006 when he first sought a visa to come to Australia, which it described as an unhurried departure from China, and so supporting its conclusion that the appellant did not have a genuine fear of persecution if he were to return to China for any reason at all.  Put simply, it did not accept that he has had or will have any association with Falun Gong if he returns to China, or indeed that he will be motivated to learn about Falun Gong if he does so.

6. The appellant sought judicial review of that decision by the Federal Magistrate. His application to the Federal Magistrate, both as initially expressed and as amended, consists of assertions of a failure to comply with s 91R of the Act, or to consider that section at all when addressing his claims; secondly, an assertion that the Tribunal was biased against him when deciding his application; and thirdly, that the Tribunal had failed to comply with s 424A of the Act by failing to give him information which the Tribunal considered would be a reason, or part of the reason, for affirming the decision not to grant him a protection visa, and to explain why that information was important, and to give him the opportunity to comment upon it. In the application to the Federal Magistrate there is no particularity of any of those assertions.

7. The Federal Magistrate rejected each of those assertions.  His Honour found that there had been no jurisdictional error on the part of the Tribunal, and so refused to set aside the Tribunal’s decision.

8. The notice of appeal to this Court raises very briefly the same three matters.  They are expressed in the following terms:

   The Tribunal failed to consider my claims for my application for a protection visa in accordance with S91R of the Migration Act 1958. The Tribunal had bias against me when considered my application.

   The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application according to s 424A of the Migration Act 1958.

9. I have asked the appellant to explain why he makes each of those complaints, and the basis upon which he makes those complaints. They are also addressed in sequence in the written submissions of counsel for the first respondent. The appellant had those written submissions read to him before the Court commenced hearing this morning. My direct questions to the appellant, and my invitation for him to comment upon any of the matters referred to in the written submissions of counsel for the first respondent, simply led to the appellant saying that he could not explain any of his grounds of appeal, and had nothing to say in response to those written submissions. He was unable, in particular, to identify any piece of information upon which the Tribunal relied in reaching its conclusion and which may have attracted the application of s 424A of the Act.

10. I have separately considered each of the matters raised by the appellant, notwithstanding his inability to explain them in any detail at all.  I accept the submissions of counsel for the first respondent that there is no merit in any of them.

11. Section 91R of the Act did not fall for consideration at all, simply because the Tribunal did not accept that the appellant was a genuine Falun Gong practitioner, or that he would be perceived as a genuine Falun Gong practitioner if he were to return to China. Consequently, the Tribunal thought he would not be at risk of any harm at all if he were to return to China. If it had reached a different view and accepted his claimed Falun Gong beliefs and practice, then it would have needed to consider whether the consequences or potential consequences to him, in returning to China, may be sufficiently harsh to fall within the description of “persecution” explained in s 91R, but that did not arise.

12. The allegation of bias on the part of the Tribunal is a serious one to make.  It will be a rare case where bias can be demonstrated merely from the reasons for decision of the Tribunal.  There is nothing else put before the Court to indicate bias on the part of the Tribunal.  The fact that a Tribunal makes an adverse finding about the reliability of the claims made by a protection visa applicant does not, itself, support any inference that the Tribunal member making that decision did not approach the task with a mind open to persuasion, or had prejudged the decision before hearing the appellant.  Indeed, the Tribunal’s recital of the course of the hearing, which took place on 11 December 2006, as set out in its reasons for decision, indicate that it progressively sought to explore with the appellant his knowledge of Falun Gong practices, indicative of the Tribunal member having an open mind until reaching the decision which was ultimately reached.  In my view, the allegation of bias must fail, particularly having regard to the discussion of such an allegation in the case of SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

13. Section 424A(3)(b) of the Act expressly says that s 424A does not apply to information that a visa applicant has given for the purposes of the application. It is apparent from the Tribunal’s reasons that it rejected the appellant’s claims on the basis of how he had presented his evidence to the Tribunal, and what he had presented to the Tribunal. In my view, there is no other information upon which the Tribunal placed any weight in reaching its conclusion, and which might have attracted the operation of s 424A(1) of the Act. It based its decision on what the appellant had told it and its assessment of what he had said and its thought processes in relation to what the appellant had told it. That material does not constitute information, so as to enliven the operation of s 424A: see the decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

14. I have carefully considered whether, in any other respect, the Tribunal’s decision might demonstrate jurisdictional error.  I do not consider that any such error is otherwise demonstrated.  The Tribunal is not to prescribe, in respect of all religions or beliefs, a standard of belief or practice which must be met in every case before a particular person can be said to be an adherent to that religion or belief system.  But every religion or belief system has some fundamentals to it.  The Tribunal is entitled to determine whether a claimed adherence to a religion or belief system is genuine.  That involves some understanding of the nature of the religion or belief system and the entitlement to explore whether those fundamentals are understood or practised by the claimed adherent.  In my view, the Tribunal’s questioning of the appellant about his knowledge and practice of Falun Gong fell well within that category of legitimate inquiry.

15. For those reasons, I do not consider that the appellant has shown error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.  The appeal must be dismissed.  The appellant should pay to the first respondent the costs of the appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        20 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms V McWilliam
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	15 November 2007
Date of Judgment:	15 November 2007