SZLEE v Minister for Immigration - [2008] FMCA 232

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 232

MIGRATION – Chinese applicant claiming fear of persecution for Falun Gong activities – Tribunal disbelieved applicant – no misunderstanding of her claims – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZLEE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2453 of 2007

Judgment of:

Smith FM

Hearing date:

18 February 2008

Delivered at:

Sydney

Delivered on:

18 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Solicitors for the Applicant:

Michaela Byers

Counsel for the First Respondent:

Mr M Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2453 of 2007

SZLEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in January 2007, and on 30 January 2007 she applied for protection against return to the People's Republic of China.
Her visa application claimed that she “was a member of the Falun Gong Organisation”, and: “I would be persecuted by the Chinese government and thrown into prison if I go back to China”. A brief attached statement claimed that she had been laid off by her employer in 1999 because of joining the Falun Gong Organisation, and that recently “some of our Falun Gong brothers and sisters have been arrested. I was on the list of people to be arrested. So I thought of leaving China for a place where we could pursue freedom in belief”. No corroboration of this claim was given to the Department of Immigration, nor subsequently to the Tribunal.
A delegate refused the application on 24 February 2007. She expressed some doubts about the applicant’s claims, and referred to her ability to depart China legally. She said: “given the applicant’s profile, I find that the chance of her being persecuted is remote”.
On appeal, the applicant submitted to the Tribunal another brief typed statement, which claimed:
Even if I do not hold the important position in illegal organisation, those local policemen arrested me and threatened me. The Chinese government cannot permit any illegal practitioner of Falun Gong to be freedom. Therefore, I strongly feared so that it had distorted my heart if I continued to stay in China".
At a hearing, attended by the applicant on 24 May 2007, the applicant was questioned further about her claimed history in China. A transcript of the hearing is in evidence. In my opinion, the Tribunal's extensive description of the hearing fully and accurately summarised the evidence given by the applicant to the Tribunal.
The applicant produced a copy of the first page of her passport, and told the Tribunal that she had travelled to Japan in November 2006 and had returned to China with the group with whom she had travelled. She suggested to the Tribunal that this was part of a scheme to establish a good record of travelling out of China, before she travelled to Australia to seek protection. When questioned about why she returned from Japan, she ultimately told the Tribunal that “the person who arranged this leaving China thing arranged in this way so we all had to follow this person's order. That means we all had to go back to China” (see pages 10, 13 and 17 of the transcript).
The applicant gave evidence that during 2006 she had been conducting her own business and living in her own house. She had been practising Falun Gong until she left China in a “practitioner member's place”. Her evidence about what attention she had received from government agents was unclear and inconsistent. She referred to feeling “a lot of pressure from the government”, and said that this had caused her to stop distributing promotional material in people’s letterboxes two months before coming to Australia. She claimed that this was a secret activity. However, she also said:
Because I was running a business in China actually the authority did know that I was a Falun Gong practitioner but they were not aware that I engage in other activities. Even so, the police often visit my place to give me some kind of education
… They knew that I used to practice Falun Gong but they do not know that I still continuing practising Falun Gong. (see page 10 of the transcript)
Later in the hearing, the applicant also explained her fears by reference to the fact that a Falun Gong practitioner known to her had been arrested during 2006, and she thought “the time was not very far away from this person who was detained by the police. So because of that issue I was quiet scared” (see page 12 of the transcript).
After the Tribunal pressed her as to why she had then returned from Japan, the applicant also told the Tribunal:
the police often came to my place and I have big pressure about that … it's not arrest at all, it's that the local police summon me to the local police station, ask me a lot of questions and told me not to practice Falun Gong any more.
She could not remember when this occurred, but then claimed that it had happened “every year I think”.
The Tribunal questioned the applicant about some elementary aspects of Falun Gong, and she showed knowledge of these. She also claimed that two weeks before coming to the hearing she had commenced to practice Falun Gong in Australia by attending public practice sessions, and also had participated in a demonstration.
On 10 July 2007, the Tribunal handed down a decision which affirmed the delegate’s decision. In its statements of reasons, the Tribunal carefully and, in my opinion, accurately summarised the applicant's claimed history as it appeared in the documents she had presented and in her oral evidence. No inaccuracy or inadequacy in this respect was identified by the applicant's counsel.
Under the heading “Findings and Reasons” the Tribunal expressed a conclusion which contained general findings rejecting all of the applicant's claimed history, and forming an adverse view of her general credibility. It said:
The Tribunal does not accept as true that the applicant was/is a genuine Falun Gong practitioner or that she practiced Falun Gong in China at any time either publicly or privately. It does not accept as true that in China police came to her place often and she was pressured because of her Falun Gong practice and activities or that she was summoned to the local police station and told not to practise Falun Gong. It does not accept as true that she was sacked from her job at any time because of her Falun Gong activities. The Tribunal does not accept as true that the applicant left China and/or fears to return there because she fears harm in China for the reasons that she claims. The Tribunal finds that the applicant has invented these claims to assist her application for protection visa.
The Tribunal then gave reasons for forming this view of the applicant's credibility. It did not consider that her travel to Japan and return was consistent with her having a fear of persecution in China. It did not consider her explanation for that return was reasonable, and it also considered that the ease with which she had travelled out of China twice using her own passport was not consistent with her claims. The Tribunal thought her claimed activities in China were not consistent with her claim to fear persecution, and it gave a general opinion about her oral evidence given at the hearing as not being “generally consistent”.
The Tribunal concluded that it did not accept as true, that the applicant was a Falun Gong practitioner in China. Assessing her claims to have practised and supported Falun Gong in Australia, it was not satisfied in terms of s.91R(3) of the Migration Act that these activities had been engaged in otherwise than for the purpose of strengthening her claim to be a refugee. Moreover, it did not accept that her activities in Australia showed that she was a genuine practitioner in Australia. It therefore found that she would not practice Falun Gong if she returned to China, and that she did not have a well-founded fear of persecution in China within the meaning of the Convention.
The applicant now asks the Court to set aside the Tribunal's decision and to order it to reconsider her refugee claims. I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have authority to decide whether the applicant's refugee claims are true, nor whether she should be granted a protection visa or any other permission to stay in Australia.
The applicant's grounds for judicial review have been presented by counsel, who relied upon a further amended application filed at the hearing . This contained the following ground and particulars:
1.The tribunal fell into jurisdictional error by failing to address the applicant’s case, misunderstanding the applicant’s case, asking itself the wrong question, failing to accord natural justice to the applicant and ignoring relevant material.
Particulars
(a)The Tribunal determined the applicant’s claim on the basis that the claim was that she had suffered serious harm in the past in her country of origin.
(b)The claim of the applicant was that she feared that serious harm may befall her at some time in the future in her country of origin and that she had left the country of origin to avoid such harm.
Essentially, the ground relies upon well-established principles:
If the Tribunal makes an error of fact or misunderstanding or misconstruing a claim advanced by an applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued, this error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly, by the applicant and it is misunderstood or misconstrued by the Tribunal. (See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 at [63]).
Counsel submitted that in the present case the Tribunal's reasoning revealed that it had misunderstood, or failed to address, the applicant’s claim that she had left China because she feared persecution, not only because she had been a known practitioner, but also because she had actively distributed Falun Gong material and, although the authorities had not known about this before she left China, they might become aware of it. In short, that she feared persecution by reason of what the police had not discovered, and not by reason of what they knew about her before she left China.
I was taken to passages in the transcript where the applicant might appear to be making a claim to this effect. However, all this evidence was referred to by the Tribunal in its narration of the applicant's evidence. I have no reason to conclude that the Tribunal overlooked it, nor that it did not understand that an element in the applicant's claims could be summarised in the above terms.
Moreover, there were also other elements in the applicant's claims, albeit put somewhat inconsistently, which suggested that the applicant not only feared future persecution, but also claimed to have suffered harassment by authorities in the past as a Falun Gong practitioner. Her case was not put to the Tribunal on the basis that she had suffered no persecution in the past. It was very relevant, therefore, for the Tribunal to address the applicant's claimed past history when attempting to make the prediction as to the future, as is required by the authorities (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 – 576, Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 544 – 545). Moreover, an assessment of the applicant's claimed past history in China, including her travel to Japan, was a natural starting point for considering the applicant's general credibility in relation to her claimed subjective fear of her future persecution, as well as its likelihood. I therefore do not accept that the Tribunal’s reasoning which addressed that history reveals that it misapprehended her refugee claims.
Counsel for the applicant also criticised the Tribunal's opening condensed summary of the applicant's claims under the heading "Findings and Reasons", which was:
Essentially the applicant claims that she left China and cannot return there because she was/will be persecuted by authorities in China because of her Falun Gong practice and activities, both in Australia and in China, if she returns. She claims that she cannot get protection from the harm that she fears in China
He conceded that in its terms it did not reveal any misunderstanding either of the applicant’s claims or of the legal issues required to be addressed by the Tribunal. However, he pointed to the obscurity of the use of the phrase “was/will”, which appears in this paragraph and in subsequent paragraphs. He submitted that the generality of the summary was so inadequate as to suggest a failure properly to appreciate the claims which were before the Tribunal.
However, when this paragraph is understood in its context, and with the approach suggested by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291, I do not accept that submission. I would understand from the Tribunal's use of "was/will" that it meant "was persecuted and will be persecuted by authorities in China”. As I have indicated, that was not an inaccurate reference to the applicant's claims presented to the Tribunal.
Certainly, in the Tribunal’s later general conclusion, which I have extracted above, the Tribunal properly addressed the applicant's fears as to the future based on an appreciation of the elements of her claimed past history which she said gave rise to her fears of future persecution. This included reference to her feelings of pressure “because of her Falun Gong practice and activities”. I cannot find any evidence of a misapprehension of the applicant's claims in this paragraph, nor can I find any in the reasoning given by the Tribunal for finding the applicant not to be a credible witness.
All the points made by the Tribunal were, in my opinion, reasonable and open to it on the evidence given by the applicant, and showed an understanding of relevant parts of the applicant's evidence. I cannot find in any of them the misapprehension or misunderstanding which was argued by counsel for the applicant.
The ground which I have set out above contends that the Tribunal determined the applicant's claim on a misapprehension that she had suffered "serious harm in the past". However, nowhere in the Tribunal's reasoning does it use the word "serious harm" as a characterisation of the claims which were before the Tribunal. I do not accept that by implication anything in the Tribunal's reasoning suggests that it misconstrued her claims in the manner contended.
Essentially, in my opinion, the arguments which were presented to me to establish a misunderstanding of the applicant's case amounted to no more than arguments against the merits of the reasoning presented by the Tribunal for disbelieving the applicant's history. However, a decision on this matter was within the province of the Tribunal's jurisdiction, and, in my opinion, it has arrived at its decision without making any jurisdictional error.
For the above reasons, I do not accept the ground which was argued before me. I must, therefore, dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 28 February 2008