SZMPH v Minister for Immigration

[2009] FMCA 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 452

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural and Indigenous Affairs and SGLB (2004) 78 ALJR 992
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909

Applicant: SZMPH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2009 of 2008

Judgment of: Barnes FM

Hearing date: 27 April 2009

Delivered at: Sydney

Delivered on: 27 April 2009

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed;

2. The applicant pay the costs of the first respondent fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2009 of 2008

SZMPH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 17 June 2008 and handed down on 8 July 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the Peoples Republic of China, arrived in Australia in December 2007 and applied for a protection visa in January 2008.  In connection with his protection visa application he claimed that he had been a Falun Gong practitioner since 1994, that his freedom was restricted, that he was not allowed to vote, that he was brainwashed, not allowed to eat and sleep properly and forced to write a declaration renouncing his Falun Gong practice.  He claimed that he could not work properly in China.  He claimed that with the help of a friend he obtained a business visa to leave China legally. 

3. By decision dated 6 February 2008 a delegate of the first respondent rejected the applicant's claims, finding on the general nature of the information before it that there was no real chance that he would face persecution on return to China and noting that while it was possible he practised, or had practised Falun Gong, the information was insufficient to find that there was a real chance he would face persecution on return to China, having regard to his circumstances as a businessman. 

4. The applicant sought review by the Tribunal.  He was invited to, and attended, a Tribunal hearing on 29 May 2008.  He provided a copy of his passport to the Tribunal and also a post-hearing written submission dated 3 June 2008 in which he had endeavoured to provide an explanation about the use of his passport.  He claimed he was detained for 20 days in 2002 and had to write a guarantee letter before he was released and that because he paid a bribe the local police did not record his details so that the upper bureau did not know that he was a Falun Gong practitioner and he could obtain a passport.  He also addressed the fact that he had travelled overseas to Italy and had not sought protection there but had returned to China.  He claimed that after his return he had to report to the police. 

5. In its reasons for decision the Tribunal outlined the claims made by the applicant in his protection visa application.  It set out a detailed account of what occurred at the hearing and described the post-hearing submission.  The Tribunal considered that the applicant's claims in his protection visa application were very general and limited and revealed no knowledge or understanding of Falun Gong.  It referred to the fact that while he claimed he had attended a Falun Gong class in June 1994 he had not provided further information about when, where, how often and with whom he had practised after that, or which exercises he had practised, or even claimed he had read material by Master Li.  Nor had he claimed that he had practised Falun Gong, participated in any anti-government activities, or expressed opposition to the Chinese government's policy on Falun Gong since his arrival in Australia over five months earlier.  The Tribunal found that he had made exceedingly general claims about his involvement in Falun Gong and what happened to Falun Gong practitioners in China, which were part of the public record, without describing his own personal experiences, except his claim that he was forced to write a declaration he would never practise Falun Gong. 

6. The Tribunal recorded that it therefore explored those matters with the applicant at the hearing, but that he revealed only a very basic knowledge of Falun Gong and not that of a Falun Gong practitioner who had been practising every day for 14 years and who had been persecuted because of his commitment to Falun Gong as he claimed.  It had regard to the fact that there was no evidence, apart from the applicant's claims, that he was a Falun Gong practitioner in China, and that while he claimed he could not work properly and lost his self-esteem, he did not claim that he actually lost his job or that he was fired because he was a Falun Gong practitioner, or for any other Convention reason. 

7. The Tribunal also had regard to the absence of any claim that the applicant had been practising Falun Gong in Australia and the lack of any support from a local organisation or practitioner.  It was satisfied that, if the applicant was a Falun Gong practitioner in China and had been practising in Australia, he would have been able to readily provide photographs, testimonials and witnesses to confirm his active participation in such activities in Australia and attest to his detailed knowledge of Falun Gong.  It found the absence of such supporting evidence went to the matter of whether he was a Falun Gong practitioner. 

8. The Tribunal considered the applicant's claim at the hearing that he had been detained for some 20 days in either 2000 or 2002 and that he had not been subjected to physical abuse but had agreed to sign a declaration renouncing his practice of Falun Gong because of pleas from his family.  However the Tribunal accepted that he was legally issued with a passport some three years after he claimed to have been detained as a Falun Gong practitioner and signed such an undertaking.  It referred to independent country information it had put to the applicant, indicating that he would not have been allowed to obtain a passport in these circumstances.  While expressing doubt about his claims of bribery to eradicate his record, it was willing to give him the benefit of the doubt and accepted that he was legally issued with his passport in August 2005 due to the payment of a bribe.  However the Tribunal had regard to the fact that in November 2005 the applicant went to Italy for six months on a contract for which he had to pay a bond and that he did not apply for refugee status in Italy.  As it put to the applicant, it found his lack of willingness to apply for refugee status in Italy, or to explore the possibility, put into question his claim that he had a well-founded fear of persecution.  It was not satisfied by his explanation as to his hours of work and lack of knowledge.  It also had regard to the fact that he was willing to return to China thereafter. 

9. The Tribunal was satisfied that if the applicant had a well-founded fear of serious harm as a longstanding Falun Gong practitioner and had been detained as claimed and forced to sign a declaration he would, in the six months he was in Italy, have explored the options for seeking refugee status.  It did not accept his unsupported claims that he did not have the time and did not understand the situation in Italy, or that he was not in a position to make inquiries.  It was satisfied that the applicant’s lack of any effort to inquire about or apply for asylum in Italy indicated that he did not have a well-founded fear of serious harm in China for any reason.  The Tribunal also found that this went to the matter of the applicant's credibility.  It found that he was not a credible witness.  It was satisfied that if he had been a Falun Gong practitioner in China and detained as claimed, he would not have been willing to return to China.  It did not accept his explanations in that respect. 

10. The Tribunal concluded that on the limited and totally unsupported claims made by the applicant it was satisfied that he was not a Falun Gong practitioner in China and that he did not have a well-founded fear of persecution on this basis.  Hence it did not accept the claims that flowed from this, including the unsupported claim there was a Convention-related reason why he had to pay a bond when he went to Italy.  It reiterated that it did not accept that the applicant would have returned to China if he had a well-founded fear of serious harm amounting to persecution or if there was a real chance he would be subjected to serious harm for a Convention-related reason. 

11. The Tribunal addressed more general claims that the Chinese Communist Party did not allow freedom of speech and was a one-party dictatorship and the other concerns the applicant expressed about the absence of democracy in China.  It did not accept his claim that he would be subject to serious harm as a Falun Gong practitioner in the lead-up to the Olympic Games or that the police had sent out a notice advising him he would be persecuted and that his family had suffered unfair treatment.  It considered the possibility that these claims were part of a wider claim that the applicant feared persecution because of an anti-government or anti-Communist Party political view, based on an actual or imputed political opinion.  However it found that the applicant did not make any further specific claims that had not been dealt with and that on the limited claims before the Tribunal, it was not able to satisfy itself that the applicant had experienced any difficulty in the past because of his actual or imputed political opinion, or that there was any real chance he would experience any difficulty whatsoever on this basis in the future. 

12. The Tribunal noted that the applicant had not outlined any political activities in which he had been involved in China.  It was not able to satisfy itself that he had a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis and, given the absence of any past or present political activities in Australia, was satisfied he would not be involved in any actual or imputed political activities if he returned to China now or in the reasonably foreseeable future.  The Tribunal found that the applicant was not a refugee.

13. The applicant sought review by application filed in this Court on 4 August 2008.  He relies on an amended application filed on 9 September 2009 which contains three grounds.  He did not file written submissions.  The first ground is that “The Tribunal failed to consider the fact that I have been practising Falun Gong in Australia and my activities here may cause further persecution to me on my return to China”.  

14. However, on the evidence before the Court the applicant did not claim either to the Department or to the Tribunal to have been practising Falun Gong whilst in Australia.  The Tribunal expressly addressed the absence of any such claim in its reasons for decision. 

15. The Tribunal is not under a duty to inquire or to obtain information to support the applicant's case (see Minister for Immigration & Multicultural and Indigenous Affairs and SGLB (2004) 78 ALJR 992 at [43]). It is well established that it is for an applicant to put forward the evidence or material he wishes to have taken into account and for the Tribunal to decide whether the claims are made out (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909). This ground is not made out.

16. Ground 2 is that “The Tribunal failed to refer to correct independent information for the consideration of my application.  The Tribunal failed to assess the chance of my persecution on my return to China, because of my Falun Gong activities in China and in Australia”.  

17. There is no particularisation of this ground.  The reference to independent country information is not clarified.  The Tribunal did refer to independent country information in its reasons for decision (that it had indicated it had put to the applicant at the hearing) in relation to the ability to obtain a passport and leave China.  There is no suggestion that the applicant put other independent country information to the Tribunal.  In any event, the choice and assessment of country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [13]). I note that the applicant was provided with the opportunity to make further submissions after the Tribunal hearing. He indicated that he would submit further documents to answer the Tribunal's questions. There is no suggestion that he submitted any material other than the post-hearing written submission described above. The first part of this ground is not made out.

18. The second part of the ground, insofar as it refers to Falun Gong practice in Australia, cannot be made out for the reasons discussed in relation to ground 1.  Insofar as it refers to the applicant's Falun Gong activities in China, the Tribunal considered the applicant's claims in that respect, but for the reasons that it gave was satisfied that the applicant was not a Falun Gong practitioner in China and did not have a well-founded fear of persecution on that basis.  Hence it did not accept the claims that flowed from such claims.  Insofar as the applicant seeks merits review, merits review is not available in this Court.

19. The third ground is that “The Tribunal made a decision based on assumption”.  The applicant reiterated this contention in oral submissions, suggesting that the Tribunal did not give consideration to the difficulties he was facing and just based its decision on its own “guessings”.  However it is apparent from the Tribunal reasons for decision that the Tribunal relied on the oral and written evidence provided by the applicant, that it had a number of concerns in relation to aspects of that evidence which it raised with the applicant in the course of the hearing, and that in light of those matters and independent country information came to the conclusions that it did.  It has not been established that the Tribunal failed to carry out the review or otherwise fell into jurisdictional error.  In particular, it has not been established that it failed to consider the applicant’s claims or made a decision based on mere “assumption”.  Insofar as this might be intended to raise any suggestion of actual or apprehended bias, neither actual nor apprehended bias is made out on the material before the Court.  Nor has it been established that there was no evidence for the Tribunal conclusions, or that the decision was so unreasonable that no reasonable decision-maker could have made it. 

20. In oral submissions the applicant took issue with the Tribunal's approach to the issue of why he had not applied for refugee status in Italy.  He repeated his claim to the Tribunal that he was not aware of the situation in Italy and did not know anything about that country or whether he could apply for protection.  It appears from the Tribunal reasons for decision that this issue was raised with the applicant in the hearing and that he was given an opportunity to respond.  He addressed this issue in oral evidence and also in the post-hearing written submission.  The Tribunal considered the applicant’s claims in relation to what occurred in Italy in some detail but did not accept his explanations for failing to make inquiries about or apply for refugee status.  It was satisfied that such lack of effort indicated that he did not have a well-founded fear of serious harm in China for any reason. 

21. Such findings were open to the Tribunal on the material before it for the reasons that it gave.  Merits review is not available in this Court and the applicant's endeavours to provide an explanation for his failure to apply for refugee status in Italy do not establish jurisdictional error on the part of the Tribunal on the material before it at the time of its decision.  As no jurisdictional error has been established the application must be dismissed. 

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and the Minister seeks costs in the sum of $2,500, which is at the lower end of the amounts usually sought in matters of this nature.  The applicant raised his lack of funds.  However such lack of funds is not a reason, in the circumstances of this case, for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  14 May 2009