SZMJA v Minister for Immigration
[2008] FMCA 1387
•25 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1387 |
| MIGRATION – Review of RRT decision – where Tribunal referred to applicant’s non-practice of Falun Gong after arriving in Australia – where conduct not relied on by applicant as evidence of having a well-founded fear of persecution – whether s.91R(3) Migration Act 1958 (Cth) enlivened. |
| Migration Act 1958 (Cth), s.91R |
| SZJGV v Minister for Immigration [2008] FCAFC 105 SZLQX v Minister for Immigration [2008] FCA 1826 SZHFEv Minister for Immigration & Anor (No 2) [2006] FCA 648 SZGDJ v Minister for Immigration & Anor [2008] HCASL 479 |
| Applicant: | SZMJA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1442 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 September 2008 |
| Date of Last Submission: | 25 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1442 of 2008
| SZMJA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. She arrived in Australia on 31 July 2007 and applied for a protection class (XA) visa on 12 September 2007. On 30 November 2007 a delegate of the Minister refused to grant her a protection visa. On 28 December 2007 the applicant applied for review of that decision from the Refugee Review Tribunal. She attended two hearings before the Tribunal, the first was aborted because of problems with the interpreter. On 15 April 2008 the Tribunal determined to affirm the decision which it handed down on 8 May. The grounds upon which the applicant claimed she was a person to whom Australia owed protection obligations were that she was a practitioner of Falun Gong. She said that in 2004 her house had been raided and she was detained for four months in the Fuqing Detention Centre. Whilst there she was tortured and forced to declare that she would not practise or promote Falun Gong again. She said that in March 2007 her son obtained a visa to study in Australia and she decided that she would follow him after he had written and told her that Falun Gong practitioners were not persecuted in this country.
The Tribunal questioned the applicant about her association with the Falun Gong sect. Her evidence was that she had been told about Falun Gong in 1996 and that either in October or November of that year she practised it on two occasions. She told her mother-in-law about it. She was aware that Falun Gong contained five exercises but said she only knew two of them. She had been given a Falun Gong necklace. She told the Tribunal that she was detained and mistreated by the authorities between July 2004 and November 2004. After that she was in hiding. The Tribunal questioned the applicant as to how it came about that she should be arrested in 2004 for some two days of Falun Gong activities conducted approximately eight years previously:
“She said that she was in hiding and went home for only one day and then her appearance was reported by a neighbour. The Tribunal clarified with her that she was claiming to have been in hiding for about eight years. She said that she was in hiding for eight years and she thought she would be safe after that time but she was dobbed in by a neighbour. The Tribunal told the applicant that it did not accept as plausible that she was in hiding for eight years given that she lived with her husband who was working and that she had two children, both of them attending school/studying; she also obtained her passport and visa and left her country by using them.”
The Tribunal concluded that it could not be satisfied that the applicant was a genuine Falun Gong practitioner or that her story of being arrested and detained after such a lengthy period was true. The Tribunal could not accept that if the applicant returned to China she would practise Falun Gong although it did accept that she had a limited two day involvement with Falun Gong in 1996 and had told her mother-in-law about it. The applicant had told the Tribunal that she had not practised Falun Gong in Australia so:
“The Tribunal finds that the applicant will not practise Falun Gong if she returns to China as she is not a committed or genuine practitioner; she has not practised in Australia since she has been here which is now nearly nine months since her arrival date. The Tribunal does not accept as true that she has not practised in Australia because she is afraid to practise.”
On 4 June 2008 the applicant filed an application in this court seeking a review of the Tribunal's decision. There were two grounds for her application. The first was:
“That jurisdictional error has bee [sic] made.”
The second was:
“Procedural fairness has been denied. I was sick and couldn't attend hearing.”
No particulars are provided of the alleged jurisdictional error. It seems to me that in this case the Tribunal came to a conclusion based on the evidence that it had heard that the applicant's story was not credible as it was most unlikely that she would have suffered the persecution she complained of such a long time after the very short involvement with Falun Gong activity. It would appear that the Tribunal did not accept that the applicant had remained in hiding for eight years.
If I am correct in this interpretation of the Tribunal's decision then I cannot see that any jurisdictional error was involved in its conclusions and I have not been assisted by the lack of particularisation from the applicant. As for the second ground this appears to be a figment of the imagination of the person who wrote the application for this applicant. She actually attended two hearings.
The Minister acting in accordance with his self-conferred obligation to be a model litigant has raised the possibility that procedural error could have crept in to this decision through what is now known as the s.91R(3) Migration Act 1958 (the “Act”) issue. It was first articulated by the Full Bench of the Federal Court in SZJGV v Minister for Immigration [2008] FCAFC 105. Three cases were considered by that Full Bench. Spender, Edmonds and Tracey JJ held that:
“[22] … Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision maker from having regard to "any conduct" engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s 91R(3).
[23] In each of the present cases, the Tribunal received evidence and made findings about the appellant’s activities (or lack of them) in Australia. In each case, the evidence that led to the findings was called by the appellant. In each case, the Tribunal appreciated that s 91R(3) applied and that, unless it was satisfied that the appellant had engaged in the conduct for a purpose other than that identified in paragraph (b), it was bound to disregard that conduct. In each case, the Tribunal either declared that it was not satisfied that the appellant’s conduct was undertaken for a purpose other than that of enhancing his or her claim to be a refugee or that it was satisfied that the conduct had been engaged in to assist the claim. It further declared that the conduct must, accordingly, be disregarded. Despite these declarations, counsel for the appellants submits that, in each case, the Tribunal did have regard to the appellant’s conduct. It did so by relying on that conduct, in part, as a reason for concluding that the appellant was not a refugee.
[24] The central issue in these cases is, then, whether, in these circumstances, the appellants’ conduct could be and was taken into account by the Tribunal when it determined that they were not refugees. In our view such conduct could not lawfully be brought into account. It may be accepted that the catalyst for the introduction of section 91R(3) was decisions of this Court which held that a person could become a refugee as a result of conduct, deliberately engaged in in Australia, to attract the adverse attention of the authorities in his or her country of origin. In this way, a person who was not otherwise a refugee could become a refugee sur place. Section 91R(3) was intended to and does require such conduct to be disregarded when assessments are being made. It is not (although it could have been) confined in its terms to conduct which may render a person a refugee sur place. Decision makers are, subject to the proviso in paragraph (b), required to disregard "any" conduct in Australia by an applicant. The conduct is to be disregarded in determining "whether" an applicant has a well-founded fear of persecution for a Convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the Tribunal brings the conduct into account it will contravene s 91R(3).”
In the instant case the conduct referred to is the applicant's non practice of Falun Gong in the nine months between her arrival in this country and the time she attended the Tribunal. That conduct, or lack of it, was not put forward by the applicant as evidence of her having a well founded fear of persecution. This case is therefore similar to that considered by Jacobson J in SZLQX v Minister for Immigration [2008] FCA 1826 where his Honour at [20] said:
“[20] The proper approach to construction of s 91R(3) of the Act was dealt with by a Full Court in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 at [21] ff. It is true that in the present case the Tribunal took into account conduct that was engaged in by the appellant in Australia. This is shown in the passage in which the Tribunal observed that the appellant said that she had not been practising Falun Gong in Australia because she was busy making money. In particular, as I said above, the Tribunal took into account the fact that the appellant had put "income generation in Australia before Falun Gong."
[21] In my view the answer to the suggestion that there was a breach of s 91R(3) is found in a decision which I gave in a matter of SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648. The Full Court in SZJGV referred to this decision at [16] and [17] of its reasons for judgment, without any apparent disapproval of my reasons. In that case I was of the view that the effect of s 91R(3) is that it is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution.”
The reasoning of Jacobson J in SZHFEv Minister for Immigration & Anor (No 2) [2006] FCA 648 was referred to with approval in the High Court’s reasons for refusing an application for special leave in the matter of SZGDJ v Minister for Immigration & Anor [2008] HCASL 479 at [5] per Gummow and Kiefel JJ.
I respectfully agree with his Honour in his interpretation of the views of the Full Bench in SZJGV. It seems to me that to do anything else would be to render inadmissible almost any action or inaction of an applicant in Australia for any purpose of the Tribunal's unless the applicant satisfied the stringent hurdles set out in s.91R(3). It does not seem to me that this is what was intended by the section that to my mind was clearly intended to deal with “sur place” claims. And I do not believe that the Full Bench's views expressed in SZJGV (supra) when carefully read indicate anything to the contrary. In these circumstances I am unable to find any ground upon which I can review the decision of the Tribunal.
I dismiss the application. I order the applicant to pay the first respondent’s costs assessed in the sum of $3,000.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 7 October 2008
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