SZMMV v Minister for Immigration
[2008] FMCA 1575
•21 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1575 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – whether Tribunal breached s.91R(3) of the Migration Act 1958 (Cth) considered – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R(3), 424A, 424AA |
| SZHAY v Minister for Immigration & Anor [2006] FMCA 261 SZJGV v Minister for Immigration [2008] FCAFC 105, 102 ALD 226 |
| Applicant: | SZMMV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1783 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 21 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1783 of 2008
| SZMMV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 1 July 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. Background facts relating to the applicant's claims and the Tribunal decision on them are set out in the Minister's written submissions filed on 10 November 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraph 2 through to paragraph 10 of those written submissions:
The applicant is a citizen of China who arrived in Australia on 25 September 2007.
The applicant applied to the Department for a Protection (Class XA) visa on 29 October 2007.
The delegate refused the application on 21 January 2008 and the applicant appealed to the Tribunal on 1 February 2008.
Original Claims
The applicant claimed to have commenced practicing Falun Gong in 2001 as a response to insomnia which he was suffering. Although he practised in private he was active in his opposition to the persecution of the movement by the Chinese government. He tried to leave China when a friend was arrested, but he was arrested before he could do so. He was mistreated in detention. He was released after 17 days after paying a fine and giving a guarantee that he would not practise. He also had to report to police. He traveled to Australia via Fiji with the help of friends.
Delegate’s decision
The delegate found that the applicant was not a genuine practitioner of Falun Gong as his submission contained scant knowledge of the concepts and history of Falun Gong and lacked the intensity, fervour and passion to be expected of a long-time practitioner. The delegate also noted a lack of supporting evidence. The delegate found the applicant’s failure to claim protection in Fiji was significant. It was also significant that he had departed China legally using a passport in his own name (court book “CB” 45-46).
The Tribunal
The Tribunal held a hearing on 4 June 2008 at which the applicant gave evidence and presented arguments.
The Tribunal did not consider that the applicant was a genuine and sincere follower of Falun Gong. The Tribunal considered the applicant’s knowledge of Falun Gong was basic and had been learned in order to enhance his application. The applicant had not demonstrated a sincere and genuine commitment to Falun Gong. The Tribunal found the circumstances in which the applicant claimed to have adopted the practice of Falun Gong to be implausible. The Tribunal concluded that the events in China the applicant claimed to have been caused by his Falun Gong practice, had not occurred. The Tribunal found that inconsistencies between the applicant’s oral evidence and his written statement reflected a lack of truthfulness in the applicant’s account. The Tribunal was satisfied that the applicant was not overall a credible witness.
The Tribunal considered the applicant was not a Falun Gong practitioner in Australia. It found his evidence about his practice in Australia to be vague and inconsistent. The Tribunal also referred to its general finding concerning the applicant’s credibility as a reason for not accepting his account of practice in Australia.
The Tribunal observed that even if the applicant had attended public practice in Australia there was nothing to suggest that such attendance would lead to difficulties for him if he should return to China.
These proceedings began with a show cause application filed on 11 July 2008. The applicant continues to rely on that application:
Ground of Application
The application claims:
1. The involved an error of law that:
(a) The Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 and denied the Applicant procedural fairness.
(b) The respondent did not carefully consider the information which is in favour of the applicant.
(c) There was no evidence or the other materials to justify the making of the decision.
The [particulars] of the application:
(a) I am citizen of China. If I [go] back to my country, I will be [at] risk of suffering persecution; within the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protest relating to the status of Refugees.
(b) Member of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided.
(c) The Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth). Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in my protection [visa application], which information was not provided to the applicant in accordance with s.424A.
(d) The respondent refused to grant my protection visa without any proper grounds and proper investigation.
(e) The decision made by the Tribunal is illogical.
I conducted a show cause hearing on 8 September 2008. At that time I concluded that there was no substance in the asserted grounds of review. The first particular is simply an assertion of a fear of persecution that is beyond the scope of this proceeding. The second particular appears to be an attack on the merits of the Tribunal decision.
The third particular asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). There is in this case no arguable breach of that section. The Tribunal decision turned upon a rejection of information provided by the applicant to the Tribunal for the purposes of the review. I note in addition that the Tribunal embarked upon a course of oral disclosure pursuant to s.424AA of the Migration Act which arguably went beyond the Tribunal's legal obligations pursuant to either s.424AA or s.424A[1].
[1] See paragraphs 43 and 44 of the Tribunal’s reasons, CB 85.
The fourth particular in the application asserts that the Tribunal rejected the protection visa application without proper grounds and proper investigation. That assertion is plainly wrong on the basis of the Tribunal decision.
The final particular asserts illogicality. I see no illogicality in the Tribunal decision. Even if there had been, that would not of itself constitute a jurisdictional error, although it might point to one.
Nevertheless, at the show cause hearing on 8 September 2008, I identified an issue concerning s.91R(3) of the Migration Act. Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), I ordered the Minister to show cause why relief should not be granted in relation to the issue of whether the Tribunal breached s.91R(3) of the Migration Act by reference to paragraphs 62 and 63 of the Tribunal's reasons. I called for written submissions from the parties on that issue.
I received as evidence the court book filed on 12 August 2008. Only the Minister made written submissions. Those submissions are relevantly contained at paragraphs 12 and 13:
The operation of s.91R(3) was considered by the Full Federal Court in SZJGV v MIC [2008] FCAFC 105, 102 ALD 226. The Full Court found at [22] that primary findings of fact must first be made, and s 91R(3) was only engaged once there was a finding of conduct in Australia.
The primary finding of fact in this case was that the applicant had not engaged in Falun Gong practice in Australia. It is submitted that, as there was no conduct found to have occurred, no occasion arose to engage s 91R(3). The comment by the [Tribunal] at [62] of its decision that “even if the applicant had attended public practice on occasion in Australia” is not an alternative finding in case the primary finding of fact is wrong. Rather, it is a statement of hypothetical fact by the [Tribunal] to emphasise that even if it had accepted the applicant’s evidence that he had attended public practice in Australia this would not have led to a finding by the [Tribunal] that the applicant’s fear of returning to China was well founded. It is well established that the reasons of the [Tribunal] should not be read with an eye attuned to the detection of error.
I invited the applicant today to make oral submissions, but he had nothing to say.
I incorporate in this judgment paragraphs 62 and 63 of the Tribunal decision[2]:
I have considered whether the applicant has been engaged in activities in Australia that could give rise to a well founded fear of persecution in the PRC, but have concluded that he was not. The applicant claims to have attended public Falun Gong activities seven or eight times since he has been in Australia, saying that he is afraid to attend more frequently. However, I do not accept that the applicant practises Falun Gong in Australia. The problems identified above in his testimony lead me to consider that he is not, overall, a credible witness. As set out above, his knowledge of Falun Gong was so limited that it is evident to me that he is not a practitioner at all. He knows no more than basic information about the exercises and theoretical principles. His evidence about the frequency of his attendance in Australia was vague and inconsistent. Even if the applicant had attended public practice on occasion in Australia, for motives which are not apparent, I am satisfied that he is not a genuine, sincere, or committed practitioner of Falun Gong, and there is no credible evidence before me to suggest that merely having attended an exercise group in Australia would lead to difficulties for him if he were to return to the PRC.
I am satisfied that the applicant does not have a well founded fear of persecution as a Falun Gong practitioner. I do not accept that he has practised Falun Gong in the PRC or that he was identified as a Falun Gong practitioner in the PRC; and I do not accept that he has undertaken any Falun Gong related activities in Australia that would cause him to be identified as a Falun Gong practitioner if he were to return. There is no reason, based on the credible evidence before me, to suppose that the applicant would seek to practise Falun Gong if he were to return to the PRC. Because I do not accept that he was arrested and detained prior to his departure from the PRC, I do not accept that he is at risk of future persecution as a consequence of any previous identification as a Falun Gong practitioner. For these reasons I am satisfied that the applicant does not have a well founded fear of persecution in the PRC for reason of his belief in or practice of Falun Gong.
[2] CB 89
It is apparent in those paragraphs that the Tribunal did not accept that the applicant practised Falun Gong in Australia. The Tribunal had also rejected the applicant's contention that he had been a practitioner in China. The Tribunal did not accept that the applicant had undertaken any Falun Gong related activities in Australia that would cause him to be identified as a Falun Gong practitioner if he returned to China.
At paragraph 58 of its reasons[3], the Tribunal said:
… I do not accept that the applicant is a genuine or sincere follower of Falun Gong. Based on his lack of knowledge of the movement, I do not accept that the applicant has ever participated in the practice or study of Falun Gong. I consider that the limited knowledge the applicant did have of Falun Gong was learned for the purpose of this application.
[3] CB 88
The Tribunal did not state where it considered the applicant had gained his knowledge of Falun Gong. It may have been in Australia and the acquisition of that knowledge, however it was achieved, might hypothetically be conduct in Australia requiring consideration by the Tribunal.
However, it is in my view for the Tribunal to decide what conduct in Australia is relevant to the issues the Tribunal has to decide. Obviously an applicant may engage in a great range of conduct in Australia that is entirely irrelevant to a review application. The issue of substance for the Tribunal was whether the applicant had been, either in China or in Australia, a practitioner of Falun Gong, and, if so, whether he was a genuine adherent. The Tribunal concluded that he had not been a practitioner and was not a genuine adherent. His acquisition of some limited knowledge about Falun Gong was apparently obtained otherwise than by practising it to the extent that that acquisition of knowledge, might be considered conduct relevant to the review. It was disregarded by the Tribunal once the Tribunal had determined that it was knowledge acquired for the purposes of the review application.
Having made a determination of fact that the applicant had not engaged in Falun Gong practice in Australia, s.91R(3) of the Migration Act was not engaged in relation to that conduct. If the acquisition of limited knowledge about Falun Gong by some other means is regarded as conduct for the purposes of s.91R(3), it is implicit in the Tribunal's reasons read as a whole that the conduct was disregarded once the Tribunal had determined that it was only engaged in for the purposes of the review application.
As I have found previously, no express finding under s.91R(3) is required[4] although it is better, if the Tribunal turns its mind to the operation of that section, that there be one. I otherwise agree with the Minister's submissions.
[4] SZHAY v Minister for Immigration & Anor [2006] FMCA 261at [34]-[35]
I conclude that the Tribunal did not breach s.91R(3) of the Migration Act. I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks scale costs of $5,000. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 November 2008
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