SZMMH v Minister for Immigration - [2008] FMCA 1629

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMMH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1629

MIGRATION – Review of decision of RRT – whether Tribunal considered a possible claim of imputed political opinion – whether Tribunal’s conclusions available from the evidence adduced.

Applicant:

SZMMH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1718 of 2008

Judgment of:

Raphael FM

Hearing date:

20 November 2008

Date of Last Submission:

20 November 2008

Delivered at:

Sydney

Delivered on:

20 November 2008

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1718 of 2008

SZMMH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 29 October 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 6 December 2007. On 11 January 2008 a delegate of the Minister refused to grant a protection visa and on 11 February 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended and on 13 May 2008 determined to affirm the decision under review. The Tribunal's decision was handed down on 3 June 2008.
In his statement annexed to his protection visa application the applicant said that he was a Falun Gong practitioner. He said that he had been held in a detention centre for a month due to his persistence in studying Falun Dafa.
“After I was released the police abducted me and took me to brainwashing class at a detention and education centre in Fujian Province in China. Two weeks later I was secretly sent to a forced labour camp without my family being informed. After I arrived at the labour camp the police immediately arranged two drug offenders to watch my every movement. I was often sent to solitary confinement. After I was released I sold all of my belongings and raised around 160,000 RMB and bribed a powerful government official to issue me a passport. I understand I would face a further risk of being goaled if I still stay in China.”

When the applicant came before the Tribunal he informed the member that the statement that he had made was not entirely correct in that he was not actually a Falun Gong adherent but he had been paid to distribute Falun Gong materials and post bills around his location. He told the Tribunal that he was a supporter of Falun Gong but not a practitioner. The Tribunal opined at [CB 60]:
“Be that as it may, the applicant's alleged activities on behalf of Falun Gong were limited to being paid to deliver pamphlets/booklets (and possibly posting bills) in China. I therefore do not accept the applicant supports Falun Gong. If he was involved with Falun Gong at all in China (discussed below) then I am satisfied it was limited to (possibly) occasional distribution of reading material (and posting bills) for payment.”
The Tribunal then discussed with the applicant his detention. It told the applicant that it had seen independent country information indicating that in that period about May 2005 the PRC authorities were brutally oppressing Falun Gong activists to which the applicant responded that he had been seriously mistreated in detention. The Tribunal relied on independent country information referred to but not reproduced.
“The Tribunal accepts that the applicant may have been detained and he may have been mistreated, however, given the brutal suppression of Falun Gong at the time, the Tribunal is not satisfied he would have been detained for only one month and released (without any apparent bribe payment) if he had been detained for the reason he claimed (in May 2005). Without more, this would not have caused the Tribunal to reject the applicant's case. However, taken together with the other adverse findings made herein, it formed part of the reason the Tribunal was not satisfied the applicant invoked refugee protection obligations in Australia.”
The Tribunal next turned to the applicant's claim made in the hearing that he was detained for six months from February 2007 again for distributing Falun Gong material. The Tribunal considered whether or not this represented a new claim or whether it was a more detailed expression of the second period of detention contained in the applicant's original submission. It came to the view that it was the former and that it could not accept the applicant's statement that his failure to include it originally was a mistake brought about by mistranslation by the student who completed the form. The Tribunal rejected the claim and used the failure to make it as an indicator that the applicant lacked credibility.
The Tribunal discussed with the applicant his situation following his release from the alleged detention in mid 2007. The applicant told that he went to his home in Fuqing and stayed there for a few days but the police began to visit him there and so he spent a further two months in China in hiding variously at the houses of his sister and of friends. He said that he had been told by his wife that following his leaving the country the police had continued to call upon her. This was a new claim the Tribunal considered and added to its doubts about his credibility. The Tribunal also noted that much of the evidence being given by the applicant in regard to this area of his claims was only given after repeated questioning by the Tribunal.
The Tribunal then began to consider other possible Convention grounds and after saying that it did not accept that the applicant had been detained as claimed looked into the possibility that he would be imputed with some political opinion of anti-state activity by being what the Tribunal described as a recidivist. My reading of the Tribunal's findings on this “claim” is that it implied that the recidivist tendencies were as a result of some anti-social behaviour not necessarily connected with the Falun Gong movement. The Tribunal concluded:
“On one view any recidivist may be perceived to hold views contrary to the interests of the State. In the present case however, none of the evidence before it has satisfied the Tribunal that the applicant was (for instance) punished disproportionately. Nor that he was of ongoing interest to the State. Though not necessarily conclusive of the issue, the absence of same may indicate that if the applicant was punished, an essential and significant reason for so doing did not include his actual or imputed political opinion. Further, if a recidivist was imputed with an adverse political opinion this may have arisen from what they had (or were perceived to have) done. However, based on the evidence it accepts, the Tribunal is not able to determine why the applicant may have been detained (though the Tribunal does not accept it was for the reasons he claimed). Without more, the Tribunal is therefore not satisfied an essential and significant reason the applicant may be targeted is for one of the reasons in the Refugee's Convention.”
Finally, the Tribunal at [CB 63] confirmed that it did not regard the applicant as a witness of truth and could not therefore be satisfied that he had claims which would invoke the refugee obligations of Australia.
The applicant applied to this court for a review of the decision of the Tribunal on 4 July 2008. His ground of application was:
“The Refugee Review Tribunal failed to consider and determine whether the applicant faces a real chance of persecution in China on the basis that he is a Falun Gong supporter. The ground could give rise to a well-founded fear of persecution for a Convention reason. While the Tribunal discusses at pages 4 and 5 of the decision the possible implied claim, the Tribunal failed to determine whether the applicant faces a real chance of being persecuted in Indonesia on account of his religion as a Falun Gong practitioner or on the account of the fact that he was detained two times whilst he was in China.”
I would assume that the inclusion of the country "Indonesia" is a mistake made by the "friend" who typed up this document. I have read the decision of the Tribunal several times because initially I had a concern that it might not have adequately considered the clear possibility of a claim by the applicant of imputed political opinion arising out of his delivery of the Falun Gong material. In other words I was concerned that the Tribunal might have considered his claim only as a Falun Gong adherent. But I am satisfied that reading the decision as a whole the Tribunal accepted that the persecution which the applicant alleged could have been suffered because of this imputed opinion and the fact that he was not an adherent, although he claimed to be a supporter, would not affect his situation should he return to China. If the Tribunal had accepted the tales of detention as being true then I am satisfied that it would not have refused to provide a visa merely because he had been involved in distributing Falun Gong material rather than believing in it.
The real ground upon which the Tribunal rejected this application was that it did not believe the applicant and the reasons that it gives for not so doing would appear to me to be available upon the evidence. I have not seen the independent country information which the Tribunal relied upon to believe that the applicant would have been treated more severely than he claimed when he was first detained, but the applicant has not raised with me any claim of no evidence. In any event the Tribunal indicated that that would not have been a reason for rejecting the claim if it had otherwise found the applicant's testimony credible. I am satisfied that the findings that the Tribunal made regarding the second detention were available to it. Likewise, the views expressed concerning the evidence about the situation following his release in mid 2007.
I am satisfied that the Tribunal did complete its task of assessing whether the applicant faced a real chance of being persecuted in China on account of the fact that he was detained two times whilst he was in China. As the applicant had resiled from an adherence to the Falun Gong movement there was no necessity for the Tribunal to consider whether he was in any danger as a result of his belief in that philosophy.
Before me today the applicant said that the Tribunal did not hear his case seriously enough and that all he said was absolutely the truth. He feared to return to China and that he would be put to death if he did. In response to Ms Mitchelmore's submissions he said that he felt sorry for his father who was over 80 and also for his four children.
I note that during the course of the hearing counsel for the Minister indicated that should the applicant appeal this decision it will make available the independent country information referred to in the decision and that should the applicant claim before any bench that the Tribunal had no evidence upon which it could come to the conclusions it did from that independent country information no objection to such a claim being made at that stage will be made.
As I am unable to find any ground upon which the Tribunal fell into jurisdictional error in the manner in which it came to its decision in this case I dismiss the application and I order that the applicant pay the first respondent's costs which I assess in the sum of $3,600.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: