SZKHQ v Minister for Immigration & Anor
[2007] FMCA 1028
•27 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1028 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal. MIGRATION – Findings of fact by the Tribunal not reviewable in judicial review proceedings. |
| Migration Act 1958, ss.91X, 477 Federal Magistrates Court Rules 2001, r.3.04 |
| Applicant: | SZKHQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 757 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 June 2007 |
| Date of Last Submission: | 21 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 757 of 2007
| SZKHQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 2 February 2007 but filed on 5 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 11 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 12 September 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Preliminary issue
In his application the applicant states that he received the Tribunal’s decision on 4 February 2007 which was a Sunday. By s.477 of the Act he was therefore required to file his initiating process in this court no later than 4 March 2007. However, because that day was also a Sunday, r.3.04(4) of the Rules of Court permitted the application to be filed on the next day the registry was open, namely Monday 5 March 2007. The application was filed on 5 March 2007. Consequently, although at a directions hearing in these proceedings on 23 April 2007 the applicant made an oral application for an extension of time within which to bring these proceedings, it is apparent that such an application was unnecessary and, in fact, the proceedings were not brought late. Therefore, there is no need to consider the applicant’s oral application of 23 April 2007.
Background facts
The Tribunal described the applicant as follows:
… he was born in Tianjin, China on 30 June 1960. He stated that he departed China on 4 May 2006. He indicated that from January 1996 to May 2006 he worked as an operator at the No.1 Tianjin Plastic Factory. The applicant lived in Tianjin, China from January 1996 to May 2006 and in May 2006 he lived in Campsie, Australia. He attended primary school in China from September 1968 until July 1973 and then attended the No. 28 Middle School from September 1973 until July 1976. (Court Book (“CB”) page 69)
The applicant claims to fear persecution in China because of his association with Falun Gong.
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 (CB 69-78). Relevantly, they are in summary:
a)in his application for a protection visa dated 16 June 2006 the applicant said that he had been persecuted in China because he was involved in Falun Gong activities;
b)in a written statement received by the Minister’s department on 26 June 2006 the applicant says:
i)on 7 May 2006, following his arrival in Australia on 5 May 2006, he went to Chinatown for sightseeing and met some Falun Gong practitioners who were handing out flyers to passers-by. Out of curiosity, the applicant asked for a couple of copies, as such materials were banned in China;
ii)in the spring of 1996, the applicant’s mother had started to practise Falun Gong. She joined a group of several practitioners to practise at a small square nearby. They did their practice there under an instructor named Chen each morning. Witnessing the health benefits that practising Falun Gong had had on his mother, the applicant and all his family members supported it. The applicant’s mother encouraged the applicant and his other family members to practise Falun Gong, but he shrugged it off, as he was busy and in good health at the time;
iii)since July 1999, the practice of Falun Gong was banned in China and practitioners were detained and sent to “brainwashing session to be re-educated”. The applicant’s mother was sent to the local police station to attend this type of “brainwashing education”. She was forced to sign a letter promising to stop practising Falun Gong. However, she continued to practise Falun Gong at home each night with all the curtains drawn;
iv)after his arrival in Australia, the applicant started learning more about Falun Gong because he saw material about it in Australia. He was angry to learn that Falun Gong practitioners were subject to ruthless persecution in all the provinces and cities across China. The atrocity committed by Chinese authorities made the applicant more determined to fight against the regime;
v)on 7 May 2006 the applicant sent a copy of Li Hong Zhi’s “Los Angeles speech on Falun Gong” to his mother because there was no access to the speech in China and he thought she would appreciate it;
vi)on 14 June 2006, the applicant received a phone call from his friend Wang Hong Jun who told the applicant that the former’s mother had asked Wang Hong Jun to advise the applicant that the Falun Gong material that the applicant had posted had been intercepted by the Public Security Bureau. The applicant’s mother had been summoned to the local police station and was warned to tell them who had posted the material to her. The applicant’s mother was not allowed to eat or sleep for three days and nights, with round-the-clock interrogation. The applicant’s mother finally told them that it was posted by the applicant from Australia. Ten thousand yuan was paid to the police station chief for the applicant’s mother to be released. The applicant’s mother was told that if the applicant returned to China, he must first report himself to the police station. The applicant’s mother said that the applicant would be persecuted if he went back to China. She advised the applicant to stay in Australia and not to return until the Chinese Communist regime was overthrown and when Falun Gong practitioners were no longer subject to persecution;
c)at the Tribunal hearing the applicant said:
… that he left China because he came to visit schools. … Before the applicant came to Australia he worked as a senior marketing adviser with [a] school. … He came to Australia to visit a school and look at schools here.
…
When he first arrived in Australia he stayed in a motel. He arrived in Australia on the fifth of May in the morning. The school in China organised his accommodation for two nights. The school arranged for a person to pick up the applicant at the airport and take him to a motel. The applicant was not part of a tour group.
…
The school financed his trip to Australia. When he first arrived in Australia he went to the motel. He went to Chinatown on the seventh of May because he wanted to have a look there. A friend said there were a lot of students there. He came here to look and see what the market was like. He went with a friend, Wang, who could communicate for him because the applicant cannot speak English. … There were students in Chinatown who speak Chinese and it is easier to communicate with them so he went to Chinatown. There, he communicated with students and obtained information about the environment and about study. He found that it was good here and he telephoned the principal to tell the principal about this. Then he saw people distributing leaflets. In those leaflets was printed a speech delivered by Li Hong Zhi on 25 February 2006. The applicant … took a few copies of that speech. … Even though he did not know what was in the speech he sent it to his mother because people in China cannot obtain something like this. … The applicant sent the material to his mother one or two days after he got it. He sent it on the eighth or the ninth. The applicant sent the material by ordinary mail. He stated that he put his name on the envelope. … The applicant stated that he got a call on the 14th of June from a friend of the family that his mother had been arrested.
…
The applicant confirmed that before he left China to come to Australia he was not a Falun Gong practitioner. He was not persecuted for being involved in Falun Gong activities before he came to Australia. … he is not a Falun Gong practitioner. He is gradually learning Falun Gong and is fond of Falun Gong. … He stated that he has never practised Falun Gong himself. (CB 72-75)
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, which are paraphrased in the first respondent’s outline of submissions as follows:
9.The Tribunal rejected the applicant’s claim to have a well-founded fear of persecution on the ground of religion or political opinion because the evidence before the Tribunal was that the applicant was not a Falun Gong practitioner and would not be a Falun Gong practitioner in the reasonably foreseeable future (CB 79.7).
10.The Tribunal rejected the applicant’s claim in relation to sending banned material to his mother, because certain aspects of it were not credible (CB 80.4-81.1). In particular, the Tribunal found that:
(a)It was not credible that the applicant would send banned material to his 78 year old mother without thinking of the consequences or knowing the contents of the banned material (CB 80.4-80.6); and
(b)It was not credible that the police would detain the applicant’s mother for three days and nights and interrogate and torture her to find out who had sent the banned material when the applicant’s own evidence was that he had put his name on the envelope (CB 80.7).
...
12.The Tribunal also considered whether the applicant would suffer persecution due to being a member of a social group, namely relatives of Falun Gong practitioners, or for any imputed political opinion. The Tribunal found that the applicant had not suffered discrimination or persecution and did not have a well-founded fear of persecution for either of those reasons (CB 81.3-81.5). The Tribunal found further that the applicant did not have a well-founded fear on the grounds that he was a Buddhist (CB 81.6).
In essence the Tribunal found:
The Tribunal finds that the applicant is not a Falun Gong practitioner. The Tribunal finds that the applicant did not send banned material to his mother in China. The Tribunal finds that the applicant is not at risk of persecution if he returns to China. (CB 81)
Proceedings in this Court
The grounds of the application were pleaded as follows:
1.The appellant collected the Falun Gong materials{ Li Hong Zhi’s speech} from the Falun Gong stall in China Town of Sydney, only having a look at them briefly. His mother is a Falun Gong adherent therefore he thought they would be the most valuable presents for her brought from Australia. The Tribunal rejected the fact and fell into jurisdictional error.
2.The appellant’s mother was taken to the local police branch and tortured. The Tribunal member didn’t accept that he would put his mother at risk. The appellant originally certainly didn’t want to put his mother at risk by sending her Falun Gong materials. The Tribunal member fell into jurisdictional error in the manner in which it dealt with this matter.
At the hearing the applicant further submitted that the Tribunal’s finding was unreasonable because it did not believe him when he said that he had sent documents to China which had been intercepted by the Public Security Bureau which led to his mother being detained for three days as a result of which he was told to stay in Australia and not to return to China.
The first ground of review challenges the Tribunal’s finding that the applicant did not send a copy of Li Hong Zhi’s Los Angeles speech to his mother. This was a conclusion open to the Tribunal on the material before it and does not evidence jurisdictional error. In proceedings such as this it is the Court’s role to review the processes adopted by the Tribunal, its reasoning and the articulation of its decision. The Court is not empowered to review the findings of fact made by the Tribunal unless a jurisdictional fact is involved, which is not the case here. Consequently, this ground does not disclose any reviewable error on the part of the Tribunal.
As for the second ground, in essence, it raises the same issues of review of fact finding as the first. For the same reasons as expressed at [11] above, no reviewable error has been disclosed in respect of the matters raised by this ground of the application.
In respect of the matter raised by the applicant in the hearing in this Court, again, the applicant seeks the review of the Tribunal’s fact finding, this time its conclusion that he had not sent banned material to his mother with the consequence that he was not at risk of persecution upon return to China. For the reasons already expressed in relation to previous asserted grounds of review, no jurisdictional error is demonstrated in respect of the matters raised by the applicant at the hearing in this Court.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 27 July 2007
0
0
2