SZMXY v Minister for Immigration - [2009] FMCA 497

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXY v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 497

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no procedural unfairness established – findings open on the evidence – application dismissed.

Migration Act 1958 (Cth), s.91R(3)

Applicant:

SZMXY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2971 of 2008

Judgment of:

Smith FM

Hearing date:

15 May 2009

Delivered at:

Sydney

Delivered on:

15 May 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2971 of 2008

SZMXY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in December 2007. On 3 January 2008 she applied for a protection visa against return to the People's Republic of China. The visa application did not identify any person assisting her. It attached a brief statement claiming that she had started practising Falun Gong and had joined in exercises since 2004. In the middle of 2006, she had been questioned by local security people and warned to stop. She did not do this. In early 2007 she was told that she would lose her job and be arrested, and in May 2007 “I was formally warned by my local security and they checked my house". The statement claimed that she was encouraged to go abroad by her family, and that after she came to Australia she was told that the police had checked her home again.
Details for these claims were not provided to the Department of Immigration, and the applicant did not attend an interview appointed in a letter sent to her nominated postal address.
A delegate refused the application on 25 March 2008. The delegate said that, because of the applicant's non-attendance at the interview, there was no opportunity to obtain and check all the available evidence relating to the applicant’s claim, and the delegate was not able to be satisfied that she had a fear of Convention related persecution.
The letter inviting the applicant to an interview, was returned by the post office marked “unclaimed”, after the posting of the delegate’s decision to the same address. However, the delegate's notification must have been received, because the applicant filed an application for review within the time period. It again provided the same address.
The same thing happened in relation to the Tribunal's invitation to attend for an interview in the Tribunal. The applicant did not attend, and the invitation letter was returned unclaimed. However, the Tribunal's notice of a handing down was acknowledged, and the applicant asked for another interview, which she was granted. She did attend a hearing of the Tribunal on 25 August 2008.
At the hearing, she presented an explanation for her previous absences, blaming her previous migration assistant. She appointed a registered migration agent as a representative at that time, although that person did not attend the hearing with the applicant. A transcript of the hearing is not in evidence and I must accept the description given by the Tribunal in its statement of reasons.
According to the Tribunal, the applicant disclaimed knowledge of the statement provided to the Department of Immigration. She presented a more elaborate history, in which she had commenced to practice Falun Gong in 2004, engaged in the exercises with a friend and with other people, and had discussed and had possession of Falun Gong literature. She also claimed to have distributed Falun Gong pamphlets. She claimed that she had come to the attention of police in 2006, when she was dismissed from her job because the police had told her employer that she was doing Falun Gong practice. She claimed that in May 2007 she had been visited at her home by the police and been detained by them at that time.
After coming to Australia, the applicant said that she had been practising the Falun Gong exercises at home, and for the last three or four months had been attending a park at Campsie to do them. She also claimed to have attended a political protest, and showed the Tribunal photographs of her holding a banner at such an event.
The Tribunal said that it questioned her, to establish her level of familiarity with Falun Gong practice, literature and ideology. At the end of the hearing the Tribunal indicated that it did not think her level of knowledge about Falun Gong was consistent with her claims. It also warned her that it would have to consider the motives with which she had engaged in her Falun Gong and political activities in Australia.
The applicant was given the opportunity to respond in writing, and she did so in a letter received from her agent on 1 September 2008. The statement is signed by the applicant, and it is clear that it was taken into account by the Tribunal. The Tribunal said that it repeated the claims that she had made at the hearing. The letter also asked for another two weeks to provide letters to prove her practising Falun Gong in Sydney, but these were not provided within the longer period before the Tribunal made its decision.
The Tribunal handed down a decision on 21 October 2008, in which it affirmed the delegate's decision.
The Tribunal formed a view that it should disbelieve her claims to have been a Falun Gong practitioner in China. It gave the following short reasons for this:
The applicant claims to have taken up the practice of Falungong in China in 2004, to have read two publications about it written by its founder, to have participated in discussions about Falungong between 2004 in early 2007 in China, and to have consistently done the Falungong basic exercises from 2004 to the present. However in her oral evidence she was unable to name any of the exercises, to name the basic tenets of Falungong as set out in one of the publications to which she referred (Zhuan Falun) or to provide a basic explanation, as set out in that publication, of the symbolism of the Falun. These aspects of Falungong are so basic to its practice and the theory behind it that the Tribunal does not consider plausible the applicant’s claimed to have participated in any Falungong practice in China, to have read any publications associated with Falungong or to have participated in discussions about Falungong. The Tribunal is not satisfied that she was a Falungong practitioner in China.
The Tribunal said that it was satisfied that the applicant had left China “for reasons unrelated to a fear of being persecuted as a Falun Gong practitioner and therefore finds that she did not have a well-founded fear of being persecuted at that time”.
The Tribunal considered the photographs tendered by the applicant and her other claims of activities in Australia, but it formed a positive view that this conduct was for the sole purpose of strengthening her claims to be a refugee. It referred to s.91R(3) of the Migration Act, and applied that provision which required the Tribunal to disregard her conduct in Australia when considering whether she had a well-founded fear of being persecuted in China. The Tribunal said that it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter. I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant relies upon grounds which are set out in the original application, and has not filed any amended application, written submissions or additional evidence. Her grounds are as follows:
1.I was not considered fair by the RRT. No evidence, they said it lacks evidence. If I provide the evidence, then they said I did that for sole purpose of strengthening my refugee claims.
2.Procedural fairness has been denied. RRT did not use favourable cases to my application.
The applicant attempted to address these today in her oral submissions. She sought to suggest that there was an inconsistency or illogicality in the Tribunal inviting her to present evidence, and then saying that it ignored it. However, in so far as the evidence presented by the applicant concerned her conduct in Australia, the Tribunal was bound by the Migration Act to ignore that evidence, if it was not satisfied that it had been engaged in otherwise than for the purpose of strengthening her claims. The Tribunal formed a positive view to the contrary of that. It was bound as a matter of law to ignore that evidence.
In relation to the applicant's practice of Falun Gong in China and her claims of persecution there, she invited the Tribunal only to rely on her oral evidence and subsequent statement, and to believe that evidence. It was the Tribunal's duty to decide whether it believed the applicant, and I can detect no jurisdictional error in how it arrived at an adverse conclusion on credibility.
In my opinion, it was open to the Tribunal to test the applicant's credibility against the knowledge she displayed of Falun Gong practices and ideology. I consider that the Tribunal's conclusion was open to it as a matter of law on the evidence that was before it.
In relation to the fairness of the Tribunal's procedures, I can identify no departure from procedures required under the Migration Act, nor any denial to the applicant of the opportunity to present her case as required under the Act.
I do not understand the claim that “RRT did not use favourable cases to my application”, and this has not been explained to me by the applicant. The decision of the Tribunal did not turn upon the effect of legal authorities, but turned upon the Tribunal's assessment of the truthfulness of the applicant.
In her oral submissions to me the applicant became passionate in claiming that she should have been believed, and that she did have a fear to return to China. However, these are matters which it is not the function of the Court to consider for itself.
For the above reasons, I am not satisfied that the Tribunal's decision was affected by any jurisdictional error and I must therefore dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 27 May 2009