SZKIQ v Minister for Immigration
[2007] FMCA 1040
•13 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1040 |
| MIGRATION – Finding that not face persecution – included finding that not face torture – findings of fact not reviewable. |
| Migration Act1958 (Cth), ss.91R, 474 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZKIQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 833 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 13 June 2007 |
| Date of last submission: | 13 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms. Palmer of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 833 of 2007
| SZKIQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 13 March 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 22 January 2007 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 has not filed an amended application. The applicant was invited by the Court to make oral submissions in support of his application but declined to do so.
The applicant was born on 25 June 1959 and claims to be from China and of Chinese ethnicity.
The applicant arrived in Australia on 25 July 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 18 August 2006. In this application he claimed to fear persecution on the basis that he was a Falun Gong practitioner (CB 27).
This application was refused by a delegate of the first respondent on
20 October 2006 and a letter advising of that decision was sent on the same date (CB 30).
On 21 November 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 40). The applicant appeared before the Tribunal on
9 January 2007 to give evidence and present oral arguments (CB 64).
By decision signed on 22 January 2007 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 67-8) (highlighting added):
The Tribunal accepts from the evidence that the applicant is a citizen of China (PRC).
The Tribunal does not accept that the applicant is nor ever was a practitioner of FG in China (PRC). The reasons for the Tribunal’s finding are as follows:
· The applicant was unaware of the actual number of exercises performed in FG practice by adherents which is a basic aspect of FG practice. He was unaware of the seminal text of FG – the Zhuan Falun.
· The applicant did not know how to perform the first exercise performed by FG cultivators as elaborated from country information on FG practice. He claimed, incorrectly, that it was performed like the fifth exercise (in the lotus position). He also had a poor knowledge of the essential components of FG such as “de” and “xinxing” which are explained and defined on the official FG website.
· The applicant traveled to Russia in 2005 and returned to China (PRC) without incident.
· The applicant confirmed in the hearing that he was not persecuted by the authorities (prior to his departure) and that was why he was granted a passport. He stated that the basis of this was that he had “reformed” from his previous FG beliefs and he was, therefore, of no further adverse interest to the China (PRC) authorities.
· The applicant has stated that he has not practiced FG publicly in Australia but practiced rather in his room despite claiming that he sought refuge in Australia because “ I do not want to get rid of FG “ and “I hope I could stay in Australia on humanitarian ground”. When questioned about his FG belief he showed a poor knowledge of FG practices and philosophy (as outlined on the FG official website) especially when he has claimed (in the hearing and elsewhere) to have practiced FG since 1985 in Heilongjiang China (PRC) and to have been in the first targeted group of FG adherents in that region.
The Tribunal observes that the applicant has committed serious errors in his answers to basic questions involving FG belief. He has also showed a lack of knowledge of the crucial exercises performed by adherents. The Tribunal is not satisfied from the responses to its questions in the hearing concerning the applicant’s claimed FG beliefs that the applicant is now nor ever was an FG practitioner.
The applicant claimed that he had been persecuted by the China (PRC) Police (PSB) as a FG practitioner when the persecution of FG began in 1999. He claimed that his house had been broken into and that his FG materials were taken away and that he was issued with a “warning off” not to practise FG again or attend related FG activities. As the Tribunal is not satisfied that the applicant is an FG practitioner, so the Tribunal is not satisfied that this claimed persecution ever took place.
The applicant has confirmed at the hearing that immediately prior to leaving China (PRC) for Australia he was not persecuted and traveled unhindered on an Australian Subclass 456 visa which was attached to his valid China (PRC) passport. He claimed that the reason for this was that he had been “reformed”. This claim indicates to the Tribunal that he had recanted his claimed FG belief prior to leaving China (PRC). The Tribunal finds this to be a personal confirmation that he did not present adversely to the authorities when leaving China (PRC).
The applicant has indicated in the hearing that he previously traveled unhindered to a third country (Russia) in 2005 and returned shortly afterwards. This indicates to the Tribunal that the applicant does not have a “well founded fear” of persecution were he return to China (PRC).
The applicant has admitted in the hearing that he fled to Australia for its democratic freedoms and not because of any actual persecution of himself at time of departure. He has claimed (correctly) that many practitioner of FG have been “treated terribly by the Chinese authorities” and that in Australia “no one tortures FG practitioners”. He has not claimed to have been tortured himself but rather persecuted as stated above. He has claimed in the hearing that he is of no further interest to the authorities as he has been “reformed”.
The Tribunal is not satisfied that the applicant was ever harmed as a result of his claim to be an FG practitioner as it does not believe he is or was an FG practitioner. The Tribunal is not satisfied from all of the evidence before it that, were the applicant to return to China (PRC), he would face persecution for his claimed beliefs. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returns to China (PRC).
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 Act”).
The application
In his application, the applicant set out three grounds as follows:
(1)There is no other material to demonstrate that I was not a Falun Gong practitioner when I was in China.
(2)The making of the decision is illogical.
(3)I face risk of being tortured if I go back to China.
No particulars have been filed with these claims. The applicant has not filed an amended application.
Findings of the Court as to the grounds in the application
Ground one complains that “there is no other material to demonstrate that I was not a Falun Gong practitioner when I was in China.” The Tribunal made findings of fact that were properly open to it on the material before it:
·“that the applicant was unaware of the actual number of exercises performed in FG practice by adherents”;
·“He was unaware of the seminal text of FG - the Zhuan Falun”;
·“The applicant did not know how to perform the first exercise”;
·“he showed a poor knowledge of FG practices and philosophy.”
These findings of fact were properly open to the Tribunal.
The Tribunal then found that it was “not satisfied from the responses to its questions in the hearing concerning the applicant’s claimed FG beliefs that the applicant is now nor even was a FG practitioner” (CB 67-68)
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
Findings of fact
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The finding of fact by the Tribunal that the applicant was not a Falun Gong practitioner in China was properly open to the Tribunal. That finding is not open to review. Ground one is rejected.
Ground two alleges that the decision of the Tribunal is illogical. The Court finds that the findings of fact by the Tribunal were properly open to it, and the conclusions it reached were logical conclusions based on those findings. Ground two is rejected.
Ground three alleges that the applicant faces a risk of being tortured if he goes back to China. The Tribunal found as a matter of fact that it was not satisfied that, “were the appellant to return to China he would face persecution for his claimed beliefs.”
“Persecution” is defined in s.91R of the Act as including:
(a)a threat to the persons life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill treatment of the person.
The decision of the Tribunal that the applicant would not face “persecution,” therefore included a finding that he would not face torture. That was a finding of fact that is not open to review. Ground three is rejected.
The Court finds no reviewable errors of fact or errors of law.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with 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 is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 4 July 2007
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