SZKKK v Minister for Immigration
[2007] FMCA 1333
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1333 |
| MIGRATION – Findings of fact not subject to review – applicant must show that all the statutory elements have been made out. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Chen Xin He v Minister for Immigration & Ethnic Affairs, No. WAG 124 of 1994 FED No 954/95 Immigration NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 |
| Applicant: | SZKKK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1017 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 30 July 2007 |
| Date of last submission: | 30 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr. H. Bevan |
| Solicitors for the Respondents: | Mr J. Dooley of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1017 of 2007
| SZKKK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 27 March 2007 for an order to show cause why a remedy should not be granted in the respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 February 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 born on 25 December 1962 and claims to be from, and of, Chinese ethnicity and Falun Gong faith.
The applicant’s wife and son remain in China.
The applicant arrived in Australia on 3 October 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 14 November 2006. In this application he claimed that he had been persecuted by the Chinese authorities because of his Falun Gong practices. The applicant claimed that he went to Beijing “many times to peacefully appeal for the fair treatment of Falun Dafa”, and that in 1999 he was arrested, tortured, and beaten by the police. The applicant claimed that he was detained in a country detention centre for over a month. On 31 August 2002, the applicant attended “an experience sharing conference” with other practitioners, but the meeting was reported to the authorities. The applicant claimed that he was beaten and later transferred to a detention centre where he “immediately went on [a] hunger strike to protest my illegal and brutal treatment”. The applicant was force fed “as a form of torture” and released after forty days in detention. The applicant further claimed that he was fired from his job in March 2003 because his employer “didn’t want to attract the wrath of the police” (Court Book “CB” 13-15).
This application was refused by a delegate of the first respondent on
25 November 2006 (CB 32-41).
On 19 December 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 42). The applicant attended a hearing before the Tribunal on 7 February 2007 to give evidence and present oral arguments
(CB 53).
By decision signed on 9 February 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 77-80) (highlighting added):
Country of nationality
On the basis of his passport produced at the hearing, his evidence at the hearing and in the absence of any contrary indications, the Tribunal accepts for the purpose of this decision that the applicant has Chinese nationality, and assesses his claims against that country.
Claims
Essentially, the applicant claims to fear persecution in China because he is a Falun Gong practitioner. He claims that he was arrested on 1 October 1999 and then beaten, tortured, detained and released after a fine was paid. On 31 August 2002 he was again arrested, then detained, beaten, interrogated, force-fed, and released after 40 days (his statement dated 8-12-06) or 20 days (the hearing). Thereafter he was fired from employment because he was a Falun Gong practitioner, and authorities closely monitored him, restricted his freedom and movement and extorted money.
The Tribunal is required to determine whether the applicant has a well-founded fear and, if so, whether what he fears amounts to persecution for a Convention reason. The applicant’s claims are based on the Convention ground of religion and membership of a particular social group.
After careful consideration of the evidence cumulatively, the Tribunal does not accept that: the applicant is a Falun Gong practitioner; or that he has any association with the Falun Gong movement; or that he will be perceived as such by anyone. The Tribunal finds that he has fabricated this claim to establish a basis for refugee status.
At the hearing the Tribunal found the applicant to have scant knowledge of Falun Gong. He had learnt the names of the exercises. He showed a shallow knowledge of some aspects of the movement: he knew that the Government cracked down on Falun Gong in 1999; stated the main text was written in 1992 (it was started in 1992 but only published in 1994); and when asked what Falun meant he indicated when one is practising all the activities are like wheels (Falun means ‘Turn of the Wheel of Law’). He had learnt the precept ‘Truthfulness, compassion and tolerance’ but showed no apparent understanding of this key concept beyond a vague explanation that one should be good and kind.
He did not know such critical facts as the name of the key text ‘Zhuan Falun’; the big demonstration in Beijing which led to Falun Gong being banned, particularly as he claimed to be in Beijing from June to October 1999; or any details of the key text. He excused his lack of knowledge by saying the text was known by many names, and that he had a bad memory and had forgotten. The Tribunal does not accept that a person who had been involved with the Falun Gong movement since 1997, had attended protests and gatherings in China, and who claimed to have read the text several times, would know so little. The Tribunal considers that the applicant’s knowledge of Falun Gong was not consistent with that of a genuine practitioner.
The applicant’s account of his practice of Falun Gong in China, and his subsequent treatment at the hands of the authorities and employment difficulties, reflect some of the reported forms of harm inflicted on Falun Gong practitioners in China. He stated at the hearing he had been told the name of the police head, and that a practitioner’s death led to him being released in 2002. He claimed he had paid 4,000 Rmb to get his passport through a special person rather than the usual 900 Rmb.
Conversely, he was issued a passport with his correct details on 19 April 2002 (before the claimed incident on 31 August 2002), but only left China in April 2005, some 3 years later. When the Tribunal asked him about the very long delay from the passport issue to his departure, he gave a confused explanation: he appeared to suggest that the authorities prevented him from departing, even though they had already issued him a passport; and he had difficulties because he did not seek to travel through a big travel agency. He at first stated he had tried every day to get a visa so he could leave. When the Tribunal asked where he had sought a visa he indicated in 2003 he had sought to go to Israel (but could not as Chinese could not go there), and Australia. When the Tribunal asked whether Australia had refused him a visa he then stated that he knew he did not meet Australia’s requirements for a visitor visa so had not applied. His evidence was without detail and changed when tested and suggested to the Tribunal that he had in fact made little effort to leave China after his passport was issued. The long delay from the passport issue to his departure suggests that he did not seek to depart China with any urgency. The Tribunal considers his explanation did not satisfactorily explain the delay. The delay from the passport issue to his departure arrangements indicates an unhurried departure from China and leads the Tribunal to conclude that he did not have a genuine fear of persecution for any reason at all.
The applicant’s passport (produced at the hearing) shows that whilst in Botswana, he was granted an Australian visitor visa on 5 September 2006. He then visited China from 23 to 28 September 2006 and returned to Botswana, before travelling to Australia. At the hearing he stated he returned to China in order to visit his elderly mother. He at first stated he only visited her as he had limited time (3 days) but when the Tribunal asked him about a wife and children, he stated that he had an ongoing marriage with 3 children, and that he did visit them. The applicant’s return to China in September 2006 when he visited various family members, and after he had been granted an Australian visa, leads the Tribunal to conclude that he did not have a genuine fear of persecution for any reason at all.
The Tribunal’s concerns are reinforced by the applicant’s account of his experiences in Australia. In contrast with his claimed experiences in China where the practice of Falun Gong entails considerable risk, at the hearing his account showed he had given low priority to Falun Gong in Australia. At the hearing he stated he did not work in Australia and was looking for work through people from his home town. Nonetheless, he stated it took him one month to ask people about Falun Gong and he then discovered they practised in the ‘Chinese park’ in the city. He claimed to practice the exercises daily, and at the park on weekends, but stated there was no one there on weekdays. He did not claim to have otherwise had any involvement in the Falun Gong movement here. The Tribunal does not accept the applicant’s explanation that he had not found other Falun Gong places because he had no English and did not know how to catch trains until recently: this was contradicted by his claim to already be exercising with other practitioners on the weekend near Sydney’s Chinatown whom he could have asked, and his evidence showed that he used trains to travel from his residential address at Auburn. He did not provide any details of other Falun Gong practitioners in Australia, and when asked, referred to an ‘Uncle Chen’ but stated he had not dared to ask his name. He indicated he saw a fellow practitioner at a park at Auburn, but had not asked his name. He appeared to have given little thought or effort to asking fellow practitioners in Australia for support or practical assistance, including in his application. The applicant’s account of his experiences in Australia did not persuade the Tribunal that he had had any personal involvement with Falun Gong in Australia.
In China there may be a number of explanations for the payment of a bribe to get a passport, and for the assistance of a ‘connection’ to get a passport. In light of the findings above, the Tribunal does not accept that the applicant had to pay a large amount for his passport because he was a Falun Gong practitioner known to the authorities.
In his statement dated 8 December 2006 the applicant indicated he had been told by family and friends that the Chinese authorities were looking for him. In light of the findings above, the Tribunal does not accept that the Chinese authorities are interested in him because he is a Falun Gong practitioner or for any other Convention reason.
Summary
In sum, the Tribunal finds the applicant’s knowledge of Falun Gong, his account of attachment to the Falun Gong movement, his description of his practice and experiences in China, and his description of 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 with the movement. The Tribunal does not accept that the applicant will be perceived as a Falun Gong practitioner by anyone. The Tribunal finds that the applicant has fabricated this claim to establish a basis for refugee status.
The Tribunal rejects the applicant’s claimed involvement in Falun Gong in China. The Tribunal does not accept that he has practised since 1997; was arrested and detained in 1999; was arrested and detained in 2002; lost employment because of his practice; was harassed by the authorities; had difficulties getting his passport because he was known to be a Falun Gong practitioner; prevented from departing by the authorities; that he subsequently left China because of a fear of harm, or that the authorities have any interest in him. The Tribunal concludes that the applicant did not have a genuine fear of persecution for any reason at all.
The Tribunal does not accept that the applicant will have any association with Falun Gong in China if he returns. The Tribunal does not accept that the applicant will be motivated to learn about, or develop an interest in Falun Gong, if he returns to China. The Tribunal cannot discern any other circumstances which might give rise to a real chance of prospective harm, let alone persecution. The Tribunal concludes that the applicant does not face a real chance of persecution for any reason.
It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to China. The Tribunal is not satisfied that the applicant is a refugee.
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 applicant filed a document on 4 June 2007 relating to dismissal from his employment that contained factual material that was not before the Tribunal. The function of the Court in this matter is to determine whether the Tribunal fell into error on the material before it. The Court will therefore not have regard to that new material.
The application
In his application, the applicant set out four grounds as follows:
(1)The RRT failed to find the arrest, interrogation, and abuse by Chinese government police.
(2)The RRT failed to find that I will face serious persecution if I return to China which based on the evidence that I went back to China before I come to Australia. The real situation is that the local police station did not know I was backing.
(3)The RRT simply think that I did not have a genuine fear of persecution as the delay to depart China after get passport. The fact is that Chinese people is not easy to successfully get visa to democratic country because of variety of reason.
The RRT failed to consider my circumstance in Australia because I asked someone to help to find job not spend all day long to engage in Falun Gong activities.
(4)The RRT did not consider that my education background because they ask me to professionally explain some religion words.
Findings of the Court as to the grounds in the application
Ground one complains that the Tribunal did not accept the applicant’s evidence on a number of matters. The Court refers to the decision in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] as follows:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The Court refers to Chen Xin He v Minister for Immigration & Ethnic Affairs, No. WAG 124 of 1994 FED No 954/95 Immigration at [24]:
It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.
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:
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.
Also, Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.
The applicant did not prove his case to the satisfaction of the Tribunal. The Tribunal made findings of fact that were properly open to it on the material before it. Ground one is rejected.
Ground two seeks a review of a finding of fact as to persecution. Ground two is rejected for the same reasons that ground one is rejected.
Ground three seeks a review of merit and alleges that the Tribunal failed to have regard to the applicant’s circumstances in Australia. The Tribunal did have regard to his circumstances in Australia (CB 179) and found that it was not persuaded that the applicant had any personal involvement with Falun Gong in Australia. Ground three is rejected for the same reason as ground one is rejected.
Ground four appears to allege that the applicant was not able to give particulars about Falun Gong because of his level of education. The Court asked the applicant to explain this ground and he said he was not able to give details about Falun Gong because of memory factors. The findings of the Tribunal as to the applicant’s inability to give detail about Falun Gong were properly open to the Tribunal on the material before it. Ground four is rejected for the same reasons as the other grounds.
There has been no allegation of a breach of s.424A and none has been found. The Court accepts the submission for the first respondent that the applicant’s written statement, oral evidence and passport fall within the exception in s.424A(3)(b).
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and 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 is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 8 August 2007
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