SZNAI v Minister for Immigration & Anor
[2009] FMCA 251
•30 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 251 |
| MIGRATION – Review of Refugee Review Tribunal decision – visa – protection visa – refusal – “any conduct” where used in s.91R(3) of the Migration Act 1958 means conduct of any sort, not all conduct engaged in by an applicant in Australia – it can often be inferred from the absence from the Tribunal’s decision record of discussion of particular conduct in the context of s.91R(3) that the Tribunal was satisfied that the subsection did not apply to it – s.91R(3) is only enlivened by conduct in Australia on which an applicant seeks to rely to support a claim to have a well-founded fear of persecution. |
| Migration Act 1958, ss.91R, 474 Migration Legislation Amendment Act (No. 6) 2001 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451 SZHFE v Minister for Immigration, Multicultural & Indigenous Affairs (No. 2) [2006] FCA 648 SZLQX v Minister for Immigration & Citizenship [2008] FCA 1286 SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211 |
| First Applicant: | SZNAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3189 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 March 2009 |
| Date of Last Submission: | 24 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondents: | Ms T. Wong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3189 of 2008
| SZNAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He alleges that while in China he was caught reading a Falun Gong text while at work and that subsequently he was threatened with dismissal.
The applicant claims to fear persecution in China because of his involvement with Falun Gong both in China and in Australia.
After his arrival in Australia on 9 March 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 30 June 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 13 of the Tribunal’s decision (Supplementary Court Book pages 5 – 14). Relevantly, they are summarised below:
In a statement attached to the applicant’s protection visa application, he claimed that:
a)his sister-in-law’s family were devoted Falun Gong practitioners. His niece (“CQ”) who became a practitioner in 1993 at age 18 went to Beijing in March 2000 to promote Falun Gong and protest against the government’s banning of Falun Gong;
b)when CQ returned 5 days later, she appeared “a bit insane as if she had been tortured” and committed suicide on 5 April 2000;
c)after these events the applicant was told the benefits of Falun Gong by his sister-in-law and nephews and he started practising from October 2004. It cured his gastroenteritis and he became a better person physically and mentally;
d)in December 2007 the applicant was caught reading Falun Gong books in his office by Mr C, the Party Secretary, who told him to keep away from Falun Gong, threatened to dismiss him and report him to the police;
e)before he came to Australia “to visit relatives”, Mr C told the applicant that if he took part in any of the activities of the Falun Gong headquarters in Australia, he would be expelled from his workplace, put in prison and brainwashed;
f)when he arrived in Australia, the applicant was frightened that he would “lose the freedom to practise Falun Gong”, however, he felt secure and appreciated an atmosphere where he could practise Falun Gong; and
g)he fears his employer, local authorities and labour camp authorities in China.
On 25 August 2008 the Tribunal received a pre-hearing submission from the applicant which contained a statement recounting his involvement in Falun Gong activities since arriving in Australia, stating that his employer has dismissed him because of his association with Falun Gong and that the local police have broken into his home in China and threatened him with “unspeakable prosecution” [sic] if he returned. The applicant also provided:
a)a “notice of expulsion” from his employer, which referred to the applicant having undertaken Falun Gong activities in Australia;
b)photographs of Falun Gong events in Sydney; and
c)photographs of his house in China showing the purported break-in.
The applicant appeared before the Tribunal on 9 September 2008 to give evidence and present arguments and he made the following additional claims:
a)he was introduced to Falun Gong in 2004 after suffering from a duodenal ulcer and found it helped. When the Tribunal asked him why he had not mentioned this past health problem during his medical examination in Australia, the applicant replied that he did not think it necessary to mention this as it was now cured;
b)he practised Falun Gong in China every day at home after about 10pm;
c)his sister-in-law had given him a copy of the Zhuan Falun which he kept on his bed. He also stated that he sometimes took it to the office, sometimes hid it in his bedside table and sometimes under a quilt on his bed;
d)his sister-in-law and a nephew were also practitioners and he met two other named practitioners, “DS” and “CSS” although he did not know much about them;
e)the applicant’s wife and son were not practitioners as they were not attracted to it, although his wife sometimes observed him doing the exercises and he spoke to her about the benefits of Falun Gong;
f)the applicant’s employer had caught him reading the Zhuan Falun during his lunch break. He stated he had taken the book to work and forgot to lock his office door while reading it and that it was highly unusual for anyone to enter without knocking first;
g)on his second day in Australia, he went to Falun Gong practice at Belmore Park near Central railway station in Sydney. He described his activities during a typical week to include:
i)attending a study site in Burwood on Saturday;
ii)attending another site on Tuesday evenings at the home of “Ms B”;
iii)going to Darling Harbour on the weekends; and
iv)attending various candlelight vigils and protests outside the Chinese Consulate;
h)the Tribunal noted the delay between the grant of the applicant’s visa on 1 February 2008 and his departure from China on 9 March 2008. The applicant responded saying that his agent did not give him the passport and visa until 21 February 2008 and that although he had had difficulty securing a flight because it was peak season, he nevertheless left China at the first available opportunity;
i)when asked about what has happened in China since his departure, the applicant said that:
i)his employer sent a dismissal letter to his home on 1 July 2008, citing his Falun Gong practice as the reason. He did not agree with the Tribunal that his failure to return to China would of itself be a logical reason for his dismissal, stating that he was a long-standing employee of the company; and
ii)the police and PSB had illegally searched his home in July 2008;
j)the Tribunal noted its concerns about the photographs of his apartment after the alleged search, including his confused evidence about items which appeared in the photographs and about other items which appeared to have been untouched, saying that this might indicate that the photographs were staged and not the result of a genuine police raid on his apartment. In response, the applicant made various comments including that:
i)there had been searches on several days and his mother-in-law did not tidy up after the last search on 14 July 2008, but asked the applicant’s nephew to take photographs; and
ii)he had been in Australia for quite a while and felt confused;
k)the applicant stated that DS and CSS, the other Falun Gong practitioners he had met, were imprisoned in 2006. DS was now homeless and CSS was again imprisoned in the lead up to the Beijing Olympics; and
l)he had also secretly distributed pamphlets during 2006 at night and had never been caught.
The applicant’s wife (“Ms C”) appeared before the Tribunal to give evidence and reiterated some of the claims made by the applicant concerning his adherence to and practice of Falun Gong. She also said that her arrival in Australia in January 2007 preceded the applicant’s as he was not at risk at that time since he practised in secret and had not been discovered. The Tribunal asked Ms C about the photographs provided by the applicant of him and his sister-in-law in Falun Gong positions on a bed (October 2004) and of the raided apartment (July 2008). Ms C gave uncertain and confused evidence, which she attributed to having been away from China for some time. Concerning the 2004 photograph, Ms C said, after displaying considerable uncertainty, that the photograph had been taken in the couple’s bedroom. She also provided uncertain evidence about items which were depicted in the 2008 photograph, and did not recognise a vase which featured prominently in it.
The applicant’s son (“Mr Z”) gave evidence at the Tribunal hearing and described the applicant’s introduction to Falun Gong in 2004. He recognised the photograph of his aunt from 2004 saying that it was taken in the applicant’s bedroom. He recognised the vase as an item that had been in his father’s room and said that he helped the applicant find Falun Gong practitioners on the second day after his arrival in Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
Although the Tribunal considered that the knowledge of Falun Gong which the applicant demonstrated at the interview with the delegate and at the Tribunal hearing generally supported his claim, it found this evidence to be inconclusive as to the timing and circumstances of his association with Falun Gong and the genuineness of any underlying conviction. The Tribunal found that the applicant did not have any association with Falun Gong before leaving China except for the period immediately before his departure when he was preparing for his protection visa application in Australia. In coming to this finding, the Tribunal noted that:
a)the applicant gave a rehearsed and superficial account of his attraction to Falun Gong and although stating that he was persuaded by his sister-in-law because of a persistent health problem, he did not mention this health problem at his medical examination in Australia (which, it can be inferred from the departmental letter of 18 March 2008 reproduced at pp.29-31 of the principal Court Book, was undertaken by Health Services Australia) and the Tribunal did not accept that there were interpreter problems or a misunderstanding on the applicant’s part concerning the question of health problems;
b)he provided weak evidence to support his claim of having adopted the practice in 2004. In his statement attached to his protection visa application, he suggested that he opposed Communist Party rule in China and found comfort in Falun Gong practice, however, the Tribunal found there was minimal evidence to support the applicant’s assertion that political or social justice considerations motivated him to adopt Falun Gong;
c)the applicant and his witnesses gave the impression that they had rehearsed the basics of his refugee claims and they struggled with meaningful incidental information;
d)the applicant attempted to embellish his claims with details about the fate of DSS and CS, whom he initially said he barely knew, and expanded on his involvement in Falun Gong, adding that he had also secretly distributed materials;
e)the Tribunal found the applicant’s evidence about his sister-in-law and nephew lacked context and his evidence about their claimed links with Falun Gong was untruthful. The Tribunal found that the applicant showed little concern for their welfare, or about his association with them, despite his evidence which suggested that these relatives had had several close encounters with PRC authorities;
f)the travel history and priorities of the applicant and his family cast doubt on whether he had any association with Falun Gong in China, noting that it was extremely difficult to imagine why he decided that his wife should leave before him, when it was he not she who had an association with Falun Gong;
g)the Tribunal did not accept that the applicant’s delayed departure from China was for reasons beyond his control, noting that he did not give further details of any efforts to expedite his receipt of the visa or departure from China;
h)the Tribunal considered the applicant’s claim that his Falun Gong adherence did not cause any real concerns until December 2007, when his boss caught him reading the book at work, finding it highly dubious that the risk of being discovered up to this point was tolerable to him, given his knowledge of the consequences of discovery such as CQ’s suicide, the imprisonment of DSS and CS and his employer’s later warning;
i)further, the Tribunal did not accept that the applicant would have taken the Falun Gong materials to work and read them there or that his boss, having recently discovered the applicant’s interest in Falun Gong, would have allowed him to travel abroad after issuing an explicit warning about his participation in any Falun Gong activities in Australia;
j)the Tribunal placed limited weight on the evidence given by the applicant’s wife and son as independent corroboration of his claims given their direct interest in the outcome of the review and the inconsistencies between their and the applicant’s evidence;
k)the Tribunal did not accept that the photograph date stamped 8 November 2004 showed the applicant practising Falun Gong in 2004 as claimed, noting that he provided no reasons why his nephew took the photograph, he and his witnesses gave inconsistent evidence as to where the applicant practised with his sister-in-law and where that photograph was taken. It found his explanations inadequate. The Tribunal placed no weight on the date stamp as evidence of when the photograph was taken, as such data can be easily manipulated by computer, and found the photograph was recently staged to support his application; and
l)although the Tribunal accepted that the applicant obtained some information about Falun Gong prior to his departure from China, including a photograph taken and printed in China, in light of the applicant’s conduct in China it did not accept that this demonstrated the applicant’s past practice of, or any genuine commitment to, Falun Gong.
Based on the oral and documentary evidence of the applicant and his family, the Tribunal accepted that the applicant had engaged in a range of Falun Gong-related activities after his arrival in Australia. However, given its assessment of the applicant’s claims in China and the Tribunal’s adverse view of his credibility, it was not satisfied that the applicant engaged in this conduct otherwise than to strengthen his claims to be a refugee and so disregarded it pursuant to s.91R(3) of the Act.
The Tribunal accepted that the applicant is no longer employed in China and that his employer may have dismissed him, however, it did not accept that he was dismissed for any of the reasons associated with his rejected refugee claims, noting that:
a)the applicant’s prolonged absence from his workplace explained any such dismissal; and
b)it placed no weight on the purported Notice of Expulsion as independent evidence of the reasons for any such dismissal due to the adverse view formed of the applicant’s credibility.
As the Tribunal found that the applicant and his family had fabricated his refugee claims, it did not accept that the PSB or police raided his home, mistreated his mother and issued threats against him, or that they have any other adverse interest in him. It found that the photographs of the purported raids in July 2008 were staged and did not show the result of any official action.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal found that it was “required to disregard the applicant’s conduct pursuant to s.91R(3) of the [Migration] Act”. The Tribunal fell into jurisdictional error in relation to this finding.
(2)The Tribunal found that the applicant did not have any association with Falun Gong before leaving China. The Tribunal fell into jurisdictional error in making this finding.
The second ground was not pressed.
Section 91R(3) provides:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
As recorded above at [14], pursuant to s.91R(3) the Tribunal disregarded the applicant’s Falun Gong-related activities undertaken following his arrival in Australia on the basis that it was not satisfied that he had engaged in that conduct otherwise than to strengthen his claims to be a refugee. The applicant submits that, in addition to requiring the Tribunal to disregard that conduct, s.91R(3) also required the Tribunal to disregard the applicant’s failure to mention at his medical examination referred to above at [13(a)] that he had had a persistent health problem in China. It was submitted that the information which the applicant gave or did not give to the medical officer at the medical examination in Australia was “conduct engaged in by [him] in Australia” within the meaning of s.91R(3).
That argument can only succeed if, when the decision-maker is enjoined to “disregard any conduct engaged in by the person in Australia”, he or she is required to disregard all conduct engaged in by the person in Australia not just the conduct which the decision-maker is not satisfied was undertaken otherwise than for the purpose of strengthening the claim to be a refugee.
Such an interpretation is not supported by the explanatory memorandum and the minister’s second reading speech associated with the introduction of s.91R(3) into the Act by the Migration Legislation Amendment Act (No. 6) 2001. These disclose that the mischief to which the subsection is directed is conduct engaged in for the purposes of strengthening a refugee claim; the parliament was not concerned with every aspect of an applicant’s conduct in Australia. In this regard, in SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451 at 463 [24], the Full Court of the Federal Court accepted that the catalyst for the introduction of s.91R(3) was decisions of the Federal 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 authorities in his or her country of origin, by which means an applicant who was not otherwise a refugee could become a refugee sur place.
Although the parliament’s intention was to deal with sur place claims, in SZJGV it was held that the subsection was not, in terms, so confined.
Notwithstanding its finding that the scope of s.91R(3) was wider than the mischief with which the parliament was concerned, the Full Court nevertheless did not find that the subsection’s operation went beyond conduct which the decision-maker is not satisfied was undertaken otherwise than for the purpose of strengthening the refugee claim. As the Full Court said:
Section 91R(3) obliges decision-makers to disregard “any” conduct by the applicant in Australia. That requirement is qualified by para (b) which provides scope for an applicant to satisfy the decision-maker that he or she has engaged in the relevant conduct “otherwise than for the purpose of strengthening the person’s claims to be a refugee”. (SZJGV v Minister for Immigration & Citizenship at 456 [10])
Use of the word “any” in s.91R(3) permits the decision-maker to disregard conduct of any sort which may have been engaged in other than for the purpose of strengthening a refugee claim. It does not require the decision-maker to disregard all conduct or every act of an applicant in Australia. Consequently, no breach of s.91R(3) or jurisdictional error is disclosed in this case by the fact that the Tribunal did not, having determined to disregard the applicant’s Falun Gong-related conduct in Australia, also disregard the failure of the applicant to tell the medical examiner of his health problems suffered while in China.
Further, when dealing with a protection visa application, a decision-maker is necessarily obliged to consider various aspects of an applicant’s conduct in Australia. Each such act or course of conduct potentially falls within s.91R(3)’s ambit of operation but many will be mundane or otherwise not capable of assisting the refugee claim. Were the Tribunal to articulate, in respect of every such act or course of conduct, that it was satisfied that the conduct in question had been engaged in otherwise than for the purpose of strengthening the applicant’s claim to be a refugee, then its decision-making would be significantly and pointlessly encumbered. In the absence of evidence indicating the contrary, it can often be concluded that if the Tribunal does not expressly consider particular conduct in the context of s.91R(3) then it is, impliedly, satisfied that such conduct was undertaken otherwise than for the purpose of strengthening a person’s claim to be a refugee. Such is the case here. Clearly the Tribunal was aware of the applicant’s conduct at the medical examination. It must be inferred from the absence from the Tribunal’s decision record of a discussion of that conduct in the context of s.91R(3) that the Tribunal was of the view that the subsection had no relevance to it. In those circumstances, no jurisdictional error is disclosed by the Tribunal’s failure to disregard the applicant’s conduct at the medical examination.
Finally, although the applicant rightly says that inaction can constitute conduct within the meaning of s.91R(3) (vide SZJGV’s case at 462 [22]), it has been held, in decisions which bind me, that s.91R(3) is only enlivened by conduct in Australia on which an applicant seeks to rely to support a claim to have a well-founded fear of persecution: SZHFE v Minister for Immigration, Multicultural & Indigenous Affairs (No. 2) [2006] FCA 648 at [30]; SZLQX v Minister for Immigration & Citizenship [2008] FCA 1286 at [21]; SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211 at [19] and [20]. As the Minister submitted, the applicant did not put before the Tribunal, in support of his claims, his attendance at a medical examination in Australia and his failure to mention at that examination an alleged medical condition. These were not elements of his evidentiary case. Consequently, it was not conduct within the reach of s.91R(3). The fact that the Tribunal did not disregard it by reason of that provision did not amount to jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 March 2009
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