SZLSP v Minister for Immigration
[2011] FMCA 346
•6 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 346 |
| MIGRATION – Review of decision of RRT – where applicant claimed Tribunal was setting itself up as an arbiter of doctrine. |
| Migration Act 1958 (Cth), s.91R(3) |
| MIAC v SZLSP & Anor (2010) 272 ALR 115 Wangv Ministerfor Immigration and Multicultural Affairs (2000) 105 FCR 548 |
| First Applicant: | SZLSP |
| Second Applicant: | SZLSQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 58 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 May 2011 |
| Date of Last Submission: | 6 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2011 |
REPRESENTATION
| For the Applicants: | In person |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 58 of 2011
| SZLSP |
First Applicant
| SZLSQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are husband and wife, citizens of the PRC, who arrived in Australia on 7 April 2007 and applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 13 April 2007. On 9 July 2007 a delegate of the Minister refused to grant protection visas and the applicants applied for review of that decision from the Refugee Review Tribunal. The first review was determined on 7 November 2007 but was remitted for consideration by a second Tribunal. That Tribunal also affirmed the delegate’s decision on 13 February 2009 but on 18 September 2009 the matter was again remitted by this court and a subsequent appeal by the Minister was dismissed on 3 September 2010. The applicants appeared before the third Tribunal on 1 December and 16 December 2010 to give evidence and present arguments. They were represented by a migration agent and they produced witnesses. On 30 December 2010 the Tribunal determined to affirm the decision of the delegate and that decision was handed down on the same day.
The grounds upon which the applicants claim to be persons to whom Australia owed protection obligations were those referred to in the convention as religion and membership of a particular social group arising out of the male applicant’s adherence to the philosophy of Falun Gong. The female applicant claimed that she had been persecuted in China because of her association with her husband and his views. The male applicant claimed that he had become a Falun Gong practitioner prior to its being banned by the PRC Government in 1999 but that he continued to practise after that date and in June 2003 he was caught by the police with three colleagues in his place of work. He was taken to the police station and beaten. He was accused of organising resistance to the Communist Party and after three days of incarceration he was made to promise that he would not be further involved in Falun Gong activities. However, that was a promise he did not keep.
He says that he printed publicity material secretly and distributed it to other Falun Gong practitioners. In September 2005 he went to the police station to demonstrate his support for another Falun Gong practitioner who had been detained. He was then arrested. The police went to his home and found his wife and told her to distance herself from him and divorce him. He told that he was kept under observation by the police and that both he and his wife were dismissed from their employment and were not able to obtain further employment whilst in China.
The Tribunal questioned the male applicant about his claims in a manner described at [74] [CB 325 - 326] utilising information that it put to the applicant from a report by Dr Benjamin Penny made on 14 July 2006. It also utilised a manual utilised by Falun Gong practitioners available from the Falun Dafa Organisation described at [60] [CB 323]. The Tribunal determined, having discussed some of the content of these documents with the applicant, that whilst the male applicant had some involvement with Falun Gong and that he had read some literature relating to it, his knowledge of the philosophy was limited:
“He was able to provide a general overview of the principles relating to the exercises but he appeared to miss the core reasons for two of the exercises; he was unable to provide any information regarding Falun Gong’s central text, Zhuan Falun; and his understanding of the basic tenets and how to apply them, was superficial. … The Tribunal accepts that the applicant has some knowledge regarding Falun Gong, and that he has been involved in a few activities in Australia relating to Falun Gong, but it is not satisfied that he has a genuine interest in it. The Tribunal finds that the applicant has contrived his interest in Falun Gong to enhance his protection visa application.” [74] [CB 325 - 326]
The Tribunal also found that it was obliged to disregard the applicant’s activities in Australia pursuant to s.91R(3) of the Migration Act 1958 (the “Act”) at [78] [CB 326] because it could not be satisfied that the applicant had undertaken them other than for the purpose of enhancing his protection visa application. In regard to the second applicant the Tribunal concluded:
“The Tribunal has considered the claims by applicant 2. The applicant claims that she will be targeted by the PRC authorities, as she was previously, because her husband is involved with Falun Gong. However, in view of the Tribunal’s earlier findings that applicant 1 is not and never has been a genuine Falun Gong practitioner, the Tribunal is not satisfied that applicant 2 was targeted or that she will be targeted or mistreated by the authorities in China because she is associated with a Falun Gong practitioner. The Tribunal finds that applicant 2 fabricated all of her core claims to enhance the application.” [81] [CB 327]
On 14 January 2011 the applicants filed an application with this court seeking judicial review of the Tribunal’s decision. On 4 May 2011 they presented to the court registry an amended application and some submissions. The Minister has not objected to the filing of that amended application. The grounds of the amended application are:
“1. The Tribunal asked itself the wrong question concerning the first applicant’s claim to be a Falun Gong practitioner.
Particulars:
(a) The Tribunal member picked random chapters from the reading materials he possessed and questioned the applicant in details according to his “standard answers”.
(b) The Tribunal member acted as arbiter of religious knowledge and set up his own standard of a genuine Falun Gong practitioner based on his own texts.”
In his written submissions the applicant said that he had his own understanding and his own way of practising Falun Gong. He mainly dedicated himself to the religious belief and philosophies of the movement. He has many different editions of Falun Gong books and it was not fair for the member to pick on one material and ask him to give out standard answers in accordance with the reading material. The applicant referred to the views expressed by Kenny J in her judgment in MIAC v SZLSP & Anor (2010) 272 ALR 115 at pages [229 – 235]. The decision of the Full Court Kenny; Rares and Buchanan JJ, includes a very helpful discussion of the authorities relating to the imposition of arbitrary standards of knowledge by Tribunal members that have been the subject of judicial consideration since the case of Wangv Ministerfor Immigration and Multicultural Affairs (2000) 105 FCR 548. What her Honour said in paragraphs [37 – 39] was that:
“There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant's lack of knowledge indicates that he is not a genuine adherent of a religion.”
Her Honour did issue a caveat at [39]:
“If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant's claim based on perceived deficiencies in the applicant's knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant's position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims.”
Mr Smith put the matter elegantly and, I believe, correctly, in his submissions when he said that:
“The applicant says that the Tribunal proceeded on a preconceived and arbitrary basis of what a genuine practitioner must know, but the Tribunal actually proceeded on the basis of evidence as to what a genuine practitioner should know not in respect of specific questions, but in respect of three particular areas of knowledge. It asked the applicant questions based upon that evidence and assessed the quality of responses against it.”
It is also important to note that the Tribunal did not base its questions upon its own understanding of the Falun Gong philosophy but upon the evidence of Dr Penny and the Falun Gong organisation itself. Thus, when the applicant answered the question as to whether or not he was familiar with Zhuan Falun and could say anything about it and responded that there was nothing, the Tribunal’s conclusions from that response emanated from the evidence of Dr Penny in his seminar that genuine practitioners would be able to provide some elucidation of the work. I am satisfied that the Tribunal did not set itself up as an arbiter but used evidence from which it drew a rational conclusion that was unaffected by jurisdictional error.
The applicant’s second ground was:
“The Tribunal member made a decision that he is not satisfied that I was a genuine Falun Gong practitioner. This is a jurisdictional fact.
(b) The jurisdictional fact was totally illogical and unreasonable since it is based on the member’s conclusions from his own understanding of the Falun Gong text, and therefore, it amounts to jurisdictional error.”
The first thing that I would say about this is that the question as to whether the applicant was or was not a genuine Falun Gong practitioner is not a jurisdictional fact. The jurisdictional fact in this case is whether or not the Minister can be satisfied that the applicant is a person to whom Australia owes protection obligations. It is based upon that finding that the Minister is required to grant or not grant a visa. The accusation that the finding of the Tribunal was illogical and unreasonable based upon the member’s own understanding has, I believe, been dealt with above. I am quite satisfied that the Tribunal came to its conclusions based not upon its own understanding, but upon the evidence.
In his submissions, the applicant appeared to add an additional claim which was, as I interpret, that there was no basis in evidence for the Tribunal’s finding that he would not be involved in any Falun Gong activities in Australia or China in the reasonably foreseeable future which would attract the adverse interest of the PRC authorities. But that submission seems to me to misunderstand the nature of the Tribunal’s views about the applicant. It is a conclusion based upon the previous finding that the applicant was not and never had been a genuine Falun Gong practitioner, and therefore, it is quite a logical step to take to say that he would not be in any danger if he returned to China because any ground that was claimed for China’s antipathy to him was non existent. I also note Mr Smith’s submission that in any event this was not a positive finding of fact, but a finding in relation to satisfaction, and thus the no evidence claim could not be substantiated.
Before me today the applicant submitted that he was a genuine practitioner and that he had a comprehensive knowledge of the practice. He said that he could have gone out of his way to study the exercises and read the books if that was what was needed to convince the Tribunal. But he believed that he was being more honest by not doing that and by presenting himself as he really was. This is an argument which perhaps would best have been put to the Tribunal itself because it effectively amounts to a request for merits review that the court is unable to provide.
The application is dismissed. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $5,865.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 13 May 2011
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