SZMIF v Minister for Immigration - [2008] FMCA 1525

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1525

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A(1)

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451, [2008] FCAFC 105

Applicant:

SZMIF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1356 of 2008

Judgment of:

Smith FM

Hearing date:

3 November 2008

Delivered at:

Sydney

Delivered on:

3 November 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr D Godwin

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1356 of 2008

SZMIF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant came to Australia in September 2007, and on 19 October 2007 he applied for a protection visa. A brief statement attached to his visa application explained why he claimed to fear return to The People’s Republic of China.
His statement said that he had started practising Falun Gong after being introduced to it by the business manager of the factory where he worked. The applicant “followed him to promote Falun Gong to other people in our factory and nearby companies”. However, after Falun Gong was banned in July 1999, the business manager was removed and sentenced to two years imprisonment, and the applicant said:
I was sent to the police station for interrogation in about one month after Falun Gong was banned. There, they tortured me in order to have full information about our branch. I was ordered to sign on some document to declare that I would not continue to practice Falun Gong. I was also required to report to them once a week.
The applicant then lost his job, and “I could not practice Falun Gong for several months”. However, he resumed practising, and: “I became a senior member in our group, and police started to pay attention to me. I heard from our group that police would target me and I was informed to leave China as soon as possible”. The applicant claimed: “they have found evidence against me and I would be persecuted on my return. Soon as I came to Australia, I have been practicing Falun Gong with Falun Gong members in Sydney”.
No further details of these claims nor any supporting evidence was ever presented to the Department of Immigration.
A delegate refused the application on 6 November 2007. The delegate did not accept that the applicant had been involved in Falun Gong in Sydney, due to the absence of any corroboration. He did not accept that the applicant had been a leader in a Falun Gong group, and concluded that he was not of interest to the authorities when he left China on his own passport.
On appeal, the applicant attended a hearing held by the Tribunal on 19 February 2008. The applicant has not presented a transcript to the Court, although given that opportunity. However, the Tribunal gives a detailed account of the hearing in its statement of reasons.
According to the Tribunal, it drew to the applicant’s attention some inconsistencies in his visa statement and the evidence given to the Tribunal itself, in particular as to the period when he worked in the factory where he claimed to have been introduced to Falun Gong. The Tribunal also explored the applicant’s knowledge of Falun Gong exercises and theory. It is clear from the Tribunal’s account of the hearing that it thoroughly brought to the applicant’s attention various problems in the applicant’s evidence, and gave him the opportunity to explain them.
The Tribunal also invited the applicant to request that the Tribunal put its concerns in writing. The applicant did request this, and the Tribunal sent to the applicant a thorough invitation for comments on various matters, notwithstanding that, it appears to me, it probably was not required to do that under s.424A(1) of the Migration Act 1958 (Cth). The applicant responded briefly to its invitation, and it is clear that the Tribunal took into account his response.
The Tribunal handed down a decision on 22 April 2008, in which it affirmed the delegate’s decision. The Tribunal found that the applicant “is not a truthful witness and his statements both to the Department and to the Tribunal lack credibility”. It was therefore left with no plausible evidence that the applicant had suffered persecution. Nor, in the Tribunal’s view, did the evidence establish that there was a real chance that he would suffer persecution for a Convention reason if he returned to China.
The Tribunal identified several reasons for its adverse view of the credibility of the applicant’s claims, in particular his inconsistent evidence about where he was working when he joined Falun Gong, and what he did after he lost his factory job. The Tribunal also thought that he had given inconsistent evidence about his claimed detention, and had recently invented a claim that his house had been searched very shortly after he left China and that a Falun Gong video had been found.
The Tribunal thought that the applicant showed some knowledge of the Falun Gong exercises, but noted that this information was “readily available in Australia both in electronic and hard copy forms”. It also noted that the applicant was not aware of important aspects of Falun Gong ideology, and admitted that he had not read any of its literature.
In my opinion, the Tribunal’s reasoning shows a genuine effort to assess the applicant’s evidence, and its conclusion about the applicant’s credibility was open to it on the material before it.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I can only make these orders if the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant has presented grounds of review in an application and an amended application, but has not filed any evidence or submissions, and he had nothing to say to me today. His original application follows an unhelpful precedent, alleging that the Tribunal had bias, did not make a decision on the evidence, referred to irrelevant independent information, and failed properly to understand the claims. However, no particulars of any of these contentions are given, and I can find no substance in any of them on the material before me.
The amended application contains grounds of a similar nature:
1.The Tribunal failed to consider the fact that I have been practicing Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
2.The Tribunal had bias against me and asked me a lot of irrelevant questions, I was confused and could not answered the questioned properly. The Tribunal therefore refused my application based on some of my answers. The Tribunal failed to refer to proper independent information for the consideration of my application because of the bias against me.
3.The Tribunal misunderstood my claims, and my letter in reply of S424A letter.
In relation to Ground 1, I accept the submission of the Minister’s counsel that the Tribunal did address the applicant’s claim to have been practising Falun Gong in Australia as a genuine practitioner.

It recounted this claim in its statement of reasons, and later addressed it in its finding:
Therefore, on all the evidence and the above findings and for the above reasons, the Tribunal also finds that the applicant is not a Falun Gong practitioner and was not a Falun Gong practitioner in PRC. (emphasis added)
In circumstances where the Tribunal had fully rejected the credibility of the applicant’s claimed involvement in Falun Gong in China, in my opinion, no further discussion of the applicant’s claim that he had continued to practise Falun Gong in Australia was required by the Tribunal. The situation in relation to this claim was that referred to in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184 at [47], and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91], where a finding on a particular claim is “subsumed” in general or other findings rejecting an applicant’s evidence. Since the Tribunal did not accept the truth of the applicant’s claim to have practised in Australia as a genuine practitioner, it was not required to address that aspect by reference to s.91R(3) in the absence of a ‘positive finding’ (see SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451, [2008] FCAFC 105 at [22]).
In relation to Ground 2, there is no evidence before me suggesting that the Tribunal prematurely closed its mind to a genuine consideration of the applicant’s evidence. I note, in particular, that a transcript of the Tribunal’s hearing is not in evidence to establish that. On the Tribunal’s description of the hearing, it did no more than it was required to do in relation to warning an applicant of possible matters of concern.
I do not understand this ground’s reference to the Tribunal’s failure in relation to independent information. No such information was presented to the Tribunal by the applicant, and the Tribunal’s reference to independent information concerning Falun Gong practice does not reveal any arguable jurisdictional error to me, nor does this part of the Tribunal’s reason suggest any bias on behalf of the Tribunal.
Ground 3 remains unexplained by the applicant, and I am unable to address it.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. I must, therefore, dismiss the application.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 November 2008