SZLSG v Minister for Immigration
[2008] FMCA 1055
•21 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1055 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s decision based on conclusions drawn from the facts not assumptions – Tribunal under no duty to make inquiries – applicant’s task is to satisfy the Tribunal of entitlement to protection visa. |
| Applicant: | SZLSG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3715 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 July 2008 |
| Date of Last Submission: | 21 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs fixed in the amount of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3715 of 2007
| SZLSG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China and claims to fear persecution there because he is perceived by the authorities as a Falun Gong practitioner. The applicant arrived in Australia on 21 April 2007.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 16 May 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Relevant Documents (“RD”) pages 90 – 96). Relevantly, they are in summary:
Protection visa application
In his protection visa application, the applicant made the following claims:
a)he was introduced to and joined Falun Gong in Kaifeng City in 2003 and became active in organising Falun Gong activities;
b)he was detained in mid 2006 by the local Public Security Bureau (“PSB”) for a few weeks;
c)he found it difficult and risky to conduct Falun Gong activities in China and, after discussing his situation with other followers, it was suggested he travel to a western country where Falun Gong practice is allowed; and
d)he fled to Australia as one of a group of three Falun Gong practitioners and here he has approached a local Falun Gong group and has gone to the Chinese Consulate with other followers to protest.
Tribunal hearing
At the Tribunal hearing the applicant made the following additional claims:
a)he could not stay in China as there were no human rights or liberty there and he travelled to Korea in 2003, staying there for three years. In Korea he came into contact with Falun Gong by reading the newspaper Epoch Times and realised Falun Gong practitioners were good people who followed the three principles of truthfulness, compassion and forbearance and who caused no harm;
b)the applicant is not a Falun Gong practitioner but has been persecuted because of Falun Gong. He read publications and attended demonstrations with his friend outside the Chinese Consulate in Seoul, however, he did not practise as he was worried family members might be adversely affected by this. He said that the Chinese authorities knew that he had protested, but he also said that he was not sure if they knew or not;
c)he obtained and read a copy of the book Nine Commandments on the Chinese Communist Party and when he left Korea in 2006 and returned to China it was discovered in his luggage by officials at the airport there. He was questioned and detained at the airport for two days and the officials told the PSB he was a Falun Gong practitioner and they detained him for three months in his home town;
d)he was asked many questions about Falun Gong and other practitioners, but they realised he could not tell them anything and that he was not a practitioner and they released him with a fine;
e)after his detention he was required to report to the local police station each week. This affected his family and he could not live a normal life. They suggested he go to Australia to find peace and he paid RMB180,000, all of his life savings, to an agent who helped him leave;
f)since arriving in Australia, he heard that police kept visiting his family and telling them that he had to return and he was afraid he would be imprisoned for leaving in breach of his reporting conditions;
g)the applicant made various statements regarding this working capacity and arrangements before he left China, such as:
i)he did not have a job in China and would not be able to work there as he was worried that the police would mention to employers the previous incident involving Falun Gong;
ii)he was not able to find a job and was not allowed to have one. He then said that he was permitted to work but this was frustrated by his reporting requirements; and
iii)the authorities would not issue him with a small business licence and he had tried to find work;
h)in support of Falun Gong since arriving in Australia the applicant said he had read their magazine but had not been in touch with them as he was busy making a living; and
i)he would like to say goodbye to Falun Gong as he was persecuted because of it and the local police would still harm him if he returned.
The Tribunal put to the applicant that an important issue in his case was that the actions by the Chinese authorities seemed to indicate that he was not wanted by them for any reason, in that he had been issued with a replacement passport in China, had been allowed to leave the country even after having been questioned by police at the airport at his tourist agent’s instigation and had been issued with a travel document by the Chinese Consulate General in Sydney.
On 20 August 2007 the Tribunal wrote to the applicant, inviting him to comment on information that the Tribunal considered potentially adverse. The applicant responded by his letter received by the Tribunal 12 September 2007, making the following additional claims:
a)he learned about Falun Dafa in Australia through the newspaper The Epoch Times;
b)he is a member of Falun Dafa and always joins the marching and distribution of leaflets;
c)while in detention in his home town in April 2006, he was threatened, beaten, insulted and tormented continuously. He was not allowed to sleep or to go to the toilet;
d)three months later his family spent a fortune to bribe the chief of police paying 50, 000 Yuan for his release; and
e)with the help of a friend he spent five thousand dollars to get his passport back by bribing the police chief and was still asked to pay 150,000 Yuan for the bond which was 100,000 more than those who are not Falun Dafa members.
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:
a)the Tribunal was not satisfied that the applicant’s claims concerning his involvement with Falun Gong were credible, noting that:
i)the applicant’s explanation of events that occurred since he came into contact with Falun Gong practitioners while in South Korea were notably brief, vague and uninformative and did not indicate they were based on authentic, first hand experience;
ii)his vague responses when asked about Falun Gong books were not consistent with his claim to have read them in the past;
iii)his claims concerning his involvement with Falun Gong were without substantiation from any external source and amounted to no more than simple assertions; and
iv)these claims also conflicted with portions of his written response to the Tribunal’s letter of 12 September 2007 to the effect that he is a Falun Dafa practitioner in Australia and that he takes part in marches and distribution of leaflets;
b)in light of this finding the Tribunal was not satisfied that the applicant was ever detained at Beijing airport in 2006 for having a Falun Gong publication in his luggage and that this led to his detention and imprisonment. It was noted the applicant produced nothing to substantiate his claim and his comments about the publication did not indicate that he had ever read it;
c)the Tribunal was therefore not satisfied that the applicant was imprisoned in Kaifeng for three months and required to report to police following his release. The Tribunal noted the applicant was able to leave China travelling on a passport in his own name and the difficulty he experienced at the airport resulted from his lack of luggage, in respect to which the police questioned him but allowed him to depart;
d)further, the Tribunal did not accept that the applicant was prevented from working in China by any restriction placed on him; and
e)noting the reactions of the Chinese authorities at the point when the applicant was leaving the country and his ability to obtain a travel document in his own name from the Chinese Consulate General in Sydney, the Tribunal concluded that the applicant is not of adverse interest to the Chinese authorities.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.RRT used assumption in relation to the travel document I obtained from Chinese Consulate in Sydney.
2.RRT did not make a genuine effort to find out if I was detained in Kaifeng for three months.
Tribunal made assumptions
The first ground relates to the travel document referred to by the Tribunal at page five of its decision (CB 91). There the Tribunal records that at its hearing the applicant submitted a travel document issued in his name out of the Chinese Consular General in Sydney.
The applicant has not explained what he means when he says in the application that the Tribunal made assumptions. What the Tribunal did do was draw conclusions from the fact that the applicant was able to have such a document issued by the local representative office of a government that he alleges intends to persecute him if he returns home. The Tribunal’s implicit conclusion was that the allegation and the conduct were inconsistent. Its explicit conclusion was that he was not a person of interest to the Chinese government as he alleged. Both of these conclusions were logically and reasonably open to the Tribunal. They were conclusions based on evidence not mere assumptions as alleged.
For these reasons the first ground pleaded in the application does not disclose a basis upon which the Tribunal’s decision might be set aside.
Tribunal failed to inquire
In the second ground pleaded in the application the applicant complains that the Tribunal did not undertake certain inquiries. However, the Tribunal is under no obligation to so conduct itself. If the applicant does not adduce evidence on a particular point or does not adduce sufficient or convincing evidence on a point, it is hardly for the Tribunal to remedy the deficiency.
In a practical sense the obligation on the shoulders of an applicant is to put before the Tribunal evidence which will satisfy it that the applicant is a person who meets the criteria for the grant of a protection visa. If the applicant did not do that he cannot complain that the Tribunal did not do it for him.
Migration agent
Today the applicant has said that he was cheated by his Australian migration agent. To the Tribunal he had said that he had paid a migration agent to prepare his protection visa application but this person had cheated him. He said that the agent showed him the statement which accompanied his application and asked him to sign it but he had no idea of its contents.
However, this and the other matters asserted in oral submissions by the applicant today, such as that the Tribunal was in no position to say that he would not be persecuted were he to return to China and that it misunderstood the evidence, do not amount to grounds upon which the Tribunal’s decision might be set aside for jurisdictional error.
Conclusion
None of the matters raised by the applicant in his application commencing these proceedings or his oral submissions today demonstrate that the Tribunal’s decision is affected by jurisdictional error.
Consequently, the application is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 July 2008
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