SZKOX v Minister for Immigration
[2007] FMCA 1579
•5 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1579 |
| MIGRATION – Falun Gong practised to strengthen claim for protection visa – activities disregarded – minimal involvement in Falun Gong and anti-Chinese activities – insufficient evidence. |
| Migration Act 1958 (Cth), ss.36(2), 91R(3), 474 |
| Applicant: | SZKOX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1416 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 5 September 2007 |
| Date of last submission: | 5 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr M. Izzo |
| Solicitors for the Respondents: | Ms M. 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 $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1416 of 2007
| SZKOX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 4 May 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 March 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 was born on 15 June 1963 and claims to be from China, of Han ethnicity and of Falun Gong faith (“the applicant”).
The applicant arrived in Australia on 12 February 2002 on a visitor’s visa issued in Beijing.
On 14 November 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that on arrival in Australia, he worked illegally for a group of Chinese people in Liverpool. In 2006 the applicant claimed that during a walk through China Town he came across some Falun Gong material being handed out by a practitioner, bought some books and videos and began to practice Falun Gong. The applicant claimed that in doing so he was able to “reduce tiredness” and fatigue from his 14 hour working days at the farm. The applicant claimed that should he return to China he would be persecuted for his belief and practice of Falun Gong (Court Book “CB” 27-28).
This application was refused by a delegate of the first respondent on 25 November 2006 (CB 29-30).
On 15 December 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 38-41). The applicant attended a hearing before the Tribunal on 8 February 2007 to give evidence and present oral arguments (CB 50).
By decision signed on 22 March 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 79-81 ) (highlighting added):
The Tribunal finds that the applicant is a citizen of the People’s Republic of China (PRC) as evidenced by his Chinese passport; and that he is outside that country.
The Tribunal finds that the applicant arrived in Australia on a business visa on 12 November 2002 and the visa expired on 12 December 2002. The applicant then remained in Australia and worked until making his protection visa application on 15 November 2006.
Applicant’s reasons for coming to Australia.
The applicant’s oral evidence about his reason for coming to Australia in 2002 is contradictory. He initially said that he came on a business visa, in order to look into business opportunities in sausage making in Adelaide. However, he abandoned this when he could not find the address of his contact in Adelaide. He threw out all the paperwork associated with this venture. He had no reserves of money and had to work. The Tribunal finds it difficult to accept that a genuine businessman would respond to the situation in this way or arrive in a country with so few resources that he was forced to find work almost immediately when his original plans went awry. The applicant later told the Tribunal that he in fact came to Australia “for freedom of my faith”. However, the applicant did not practice Falun Gong in China and had not planned to do so at the time of arrival in 2002, as his evidence is that he only learned about Falun Gong in 2006. The applicant then said that he came to Australia with the intention of working. He said that he did not know how long he would stay. His farm in China was not doing very well. He travelled to Australia with another person from his village in China, who also went to work in South Australia. This person has since returned to China last year, for family reasons.
The Tribunal finds that the applicant came to Australia with the intention of working here and staying for an indefinite period. He did not come to Australia in order to investigate business opportunities as he originally claimed.
Applicant’s work history in Australia
The applicant is unable to provide any details as to his work in Australia. He says that he worked on a farm in South Australia for two years but is unable to recall the name of the farm or its location. He says that he moved to Liverpool, NSW in about 2004, because the work in South Australia was too difficult and tiring. However, it appears from his evidence that he worked under the same conditions in Liverpool as he had in South Australia. Again, he is unable to provide details about his employment in Liverpool. The applicant says he moved from Liverpool in October 2006, as he was working long hours and he wanted to concentrate on the practice of Falun Gong. He moved to Campsie where he rented a room in a house for $75.00 a week. He had stopped work by then as he wanted to concentrate on Falun Gong. He relies on friends to support him financially. This is corroborated by the evidence of Wen He Dong, to whom he owes money.
The Tribunal finds that the applicant has worked in Australia since his arrival, in South Australia and then Liverpool, NSW. He has not worked since he moved to Campsie, NSW.
Practice of Falun Gong
The Tribunal finds, on the basis of the applicant’s oral evidence, that he did not practice Falun Gong in China.
The Tribunal has noted the inconsistency in the evidence of the applicant and Wen He Dong as to when the applicant began the practice of Falun Gong. Other evidence, from Yong Lu, indicated that in November 2006, the applicant did not appear to be a “beginner” in Falun Gong, which lends support to the applicant’s evidence that he started earlier, in May 2006. The Tribunal has to accept the evidence of the applicant that he started in May 2006.
Based on the evidence of the applicant and his three witnesses, the Tribunal finds that the applicant now practises Falun Gong and has done so since May 2006.
The applicant told the Tribunal that he started Falun Gong because of the potential benefits to his health. He was working long hours six days a week and was very tired. He thought that Falun Gong would improve his health. He has benefited health-wise, but is now committed to Falun Gong and is active in it. The witness Li Xia Lui, gave evidence that the applicant did in fact participate in activities in Canberra in December 2006. This was also indicated in the evidence from Wen He Dong
The photos provided by the applicant do not establish that the applicant is active in Falun Gong protests as he claims. They show him either alone or in the background of the photos, rather than as an active participant. Some photos show him in activities totally unrelated to Falun Gong, such as advertising and distributing leaflets for a New Year’s Eve function.
The Tribunal finds that the applicant has only had minimal involvement in Falun Gong protests and anti-Chinese activities. There is no evidence, other than the applicant’s own, that his name or photo is on the internet.
Sur Place
Any conduct engaged in by the applicant in Australia must be disregarded in determining whether he has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention.
The applicant has acknowledged that he came to Australia in order to work and he came with few financial resources and was planning to stay indefinitely. He worked for nearly four years before becoming involved with Falun Gong, about six months before he applied for a protection visa. He has minimal involvement in Falun Gong activities other than in its actual practice as part of a group in Campsie. The applicant has made no other claims that he faces persecution in China for a convention reason, other than those of religion and political activity already considered.
Having considered all the evidence as a whole, the Tribunal finds that the applicant commenced the practice of Falun Gong in 2006 in order to strengthen his claims for a protection visa. Therefore, under the provisions of s.91R(3) of the Act, the Tribunal must disregard the applicant’s Falun Gong and other claimed politically-related activities in Australia in determining whether he has a well-founded fear of being persecuted for one or more of the Convention reasons.
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. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) 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 one ground as follows:
(1)I started practising of Falun Gong since May 2006. The Tribunal said: [Based on the evidence of the applicant and his three witnesses, the Tribunal finds that the applicant now practices Falun Gong and has done so since May 2006. The Tribunal finds that the applicant has only had minimal involvement in Falun Gong protests and anti-Chinese activities. There is no evidence, other than the applicant’s own, that his name or photo is on the internet. (on page 9 of it’s (sic) decision)].
The fact is that the previous Chinese diplomatic officer, Mr Yong Li Cheng revealed that the Chinese spies monitor and collect the information and photos of the Falun Gong practitioner activities and report to the Chinese authorities that will persecute the Falun Gong practitioners if they were to return to China. My photo did appear (sic) on the internet which is easy for the spies to identify me and report it to the Chinese authorities. I will be persecuted if I were forced back to China.
The Tribunal ignore the fact. I do hope the Judge of Federal Magistrates Court could uphold the justice.
Findings of the Court in relation to the application
The applicant alleges that “Chinese spies monitor and collect the information and photos of the Falun Gong activities and report to the Chinese authorities that will persecute the Falun Gong practitioners if they return to China.”
The Tribunal made findings of fact, which are not subject to review, that
the applicant has only had minimal involvement in Falun Gong protests and anti-Chinese activities. There is no evidence, other than the applicant’s own, that his name or photo is on the internet. (CB 80.7)
The Tribunal found that
The photos provided by the applicant do not establish that the applicant is active in Falun Gong protests as he claims. They show him either alone or in the background of the photos, rather than as an active participant. Some photos show him in activities totally unrelated to Falun Gong, such as advertising and distributing leaflets for a New Year’s Eve function.
The Tribunal finds that the applicant has only had minimal involvement in Falun Gong protests and anti-Chinese activities. There is no evidence, other than the applicant’s own, that his name or photo is on the internet. (CB 80.6)
The Tribunal therefore considered the photographs. It did not ignore the matters raised by the applicant in this application. At CB 78.10 – 79.1 the Tribunal considered the claim that the Chinese authorities would identify him from the photos if he returned to China and persecute him. The Tribunal found “on the basis of the applicant’s oral evidence, that he did not practice Falun Gong in China” (CB 80.2).
The Tribunal also found as a matter of fact that “the applicant commenced the practice of Falun Gong in 2006 [in Australia] in order to strengthen his claims for a protection visa” (CB 80.10). Having made that finding the Tribunal was required by s.91R(3) to disregard “the applicant’s Falun Gong and other claimed politically-related activities in Australia in determining whether he has a well-founded fear of being persecuted for one or more of the Convention reasons.” (CB 81.1). The finding was therefore properly open to the Tribunal that it “is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention” (CB 81.2).
No error by the Tribunal has been established. The application is dismissed.
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 fourteen (14) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 18 September 2007
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