SZNAL v Minister for Immigration - [2009] FMCA 673

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNAL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 673

MIGRATION – Review of RRT decision – applicant a citizen of China – where Tribunal found that applicant had not practised Falun Gong in Australia otherwise than for the purpose of strengthening her refugee claim – whether Tribunal properly disregarded this conduct in reaching its decision.

Migration Act 1958, s.91R(3)

SZJGV v Minister for Immigration [2008] FCAFC 105

Applicant:

SZNAL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3200 of 2008

Judgment of:

Raphael FM

Hearing date:

8 July 2009

Date of Last Submission:

8 July 2009

Delivered at:

Sydney

Delivered on:

8 July 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay First Respondent's costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3200 of 2008

SZNAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant is a citizen of China who arrived in Australia on 3 April 2008 and who applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 11 April 2008. On 7 July 2008 a delegate of the Minister refused to grant a protection visa. The applicant applied to the Refugee Review Tribunal for a review of that decision on 5 August. The Tribunal invited the applicant to a hearing, which she attended, and on 4 November 2008 determined to affirm the decision under review. It handed that decision down on 5 November.
The applicant's claims to be a person to whom Australia owed protection obligations arise out of her interest in, and involvement with, the practice of Falun Gong. The applicant told the Tribunal that she had been a practitioner of Falun Gong between 1998 and 1999 because she had had some health problems at that time and a friend of hers had suggested it. She told the Tribunal that she practised for a year with some beneficial results but ceased practice when the organisation was banned by the Chinese authorities.
She had nothing further to do with Falun Gong until 2007. In that year she was rewarded for excellence in her employment by being given a ticket for a tour to Australia. She came to Australia on 19 October 2007.
The applicant tells that during her stay in Australia she became aware of the existence of a community of practitioners of Falun Gong. She says that she learnt from them that practitioners in China were being very badly treated, including some who had been persecuted to death and others who had had their organs removed. When she returned to China she spoke to two friends about what she had learnt. She said that very shortly thereafter the police came to her home and said that she was accused of spreading false rumours about the Falun Gong. She was taken to the police station where she was beaten and kicked. She was let out that evening but asked to return the next day. When she did she was further locked up and interrogated. She was slapped and kicked. She was threatened with gaol and the removal of her organs. In the end she was released that day but told that she had to report to the police whenever asked. She was very scared of what had occurred and decided that she would leave the country, which she did a few weeks later.
The applicant also told the Tribunal that following her coming to Australia the police had been around to her house in China on several occasions asking about her. She was frightened that should she return she would be the subject of further beatings and questionings. She told the Tribunal that since arriving in Australia she had recommenced her Falun Gong practices and she had also taken part in two demonstrations against the Chinese government. She feared that if she returned, these matters would be held against her.
The Tribunal questioned the applicant at some length about her knowledge of Falun Gong. Although the record of the decision would seem to indicate that the applicant answered the Tribunal's questions whilst it was prepared to accept that she had a fleeting interest in and practised Falun Gong in 1998 and 1999, it was of the view that:
“Although the Applicant may have given up the practice in Falun Gong in 1999 because it was banned by the Government, there is no claim or evidence that the applicant had a well‑founded fear of persecution at that time because she practised Falun Gong in 1998 and 1999. There is no evidence or claim that the applicant was perceived as a practitioner or supporter of Falun Gong at that time. Nor is there any evidence that the applicant had any claim of continuing problems in China between 1999 and 2007 due to her earlier practice of Falun Gong.” [CB 54]
The Tribunal regarded the Applicant's responses about Falun Gong as:
“broad, repetitive and superficial” [CB 57].
The Tribunal took the view that the applicant's story that the police had come around to see her and arrested her as a result of some private remarks made to two friends, was implausible. It considered that if the event had occurred at all, then the authorities viewed her as having committed only a minor transgression. It supported that view with an acknowledgement that the applicant had managed to leave China without any difficulty and had remained in the country for some weeks after the incident without any further visits from the police.
Although the applicant had said that she was visited by the local authority, the Tribunal noted that this was a step down from the police and whilst it did not believe that the visit had occurred, it indicated that even if it had, it did not make her problems in China any more serious. The Tribunal did not accept that there was a real chance that the applicant would face persecution if she returned to China because of her political opinion relating to Falun Gong or imputed political opinion.
The Tribunal then turned to consider the applicant's involvement with Falun Gong since arriving in Australia. It took into account country information set out, inter alia, at CB [70 ‑ 72]. It made it clear to the applicant that it was required to investigate for the purposes of s.91R(3) of the Migration Act 1958 (‘the Act”), whether she could satisfy it that she had engaged in the conduct in Australia otherwise than for the purposes of strengthening a claim to be a refugee:
“The Tribunal has found that the Applicant did not practice Falun Gong in China after 1999 and she has not displayed a continuing interest in Falun Gong. The Tribunal has found that the applicant was not a Falun Gong practitioner when she arrived in Australia. The applicant arrived in Australia most recently on 3 April 2008. Her evidence is that she began practising Falun Gong about a month after her arrival by either attending a group practice from time to time and by practising at home. The Tribunal found the applicant's evidence about her reasons for taking up Falun Gong in Australia and the extent of her practice of Falun Gong in Australia to be vague and lacking in detail. The applicant claimed to practice Falun Gong because it was good for her health; she claimed that her back condition has improved. She made some broad repetitive and superficial comments about the philosophy of Falun Gong. The applicant claimed to sometimes attend a group practice in the city but she does not know the address. She has not attended since either August or July and she had not attended for 2 or 3 weeks before this. She claims to practice at home 2 or 3 times per week and to have attended a practice in Burwood to read about Falun Gong and to talk to other practitioners. The applicant also provided the Tribunal with photographs showing that she attended demonstrations in Australia.” [CB 57]
Then at [58] continuing:
“[58]The Tribunal accepts that Falun Gong is illegal in China but the Tribunal has found that the applicant has not displayed any continuing interest in Falun Gong. Her evidence suggests a fleeting interest in, and not a strong commitment to, Falun Gong. The applicant has not practised Falun Gong between 1999 and 2008. Having regard to all circumstances, including the applicant's limited knowledge and limited practice of Falun Gong in Australia, the Tribunal does not accept the Applicant has become a genuine Falun Gong practitioner since her arrival in Australia.
[59]The Tribunal is of the view that the Applicant's attendance of Falun Gong practice in Australia, in the city and Burwood, and demonstrations in Australia was deliberately for the purpose of supporting a claim to be a refugee.”
The Tribunal concluded that it did not accept that the applicant would practice Falun Gong on her return to China, nor was there a real chance that she would be persecuted for reasons of her real or imputed religious belief, or her membership of any particular social group, or for reason of her political opinion, or her imputed political opinion or for any convention reason. The Tribunal had applied the provisions of s.91R(3) to the applicant's practice in this country.
On 4 December 2008 the applicant applied to this court for a review of the decision of the Refugee Review Tribunal. She has one ground of application, and that is that:
“The Tribunal's decision was affected by jurisdictional error in that it incorrectly applied s.91R(3) of the Act.

PARTICULARS
The Tribunal was not satisfied that the applicant's conduct in Australia satisfied s.91R(3) of the Act. According to s.91R(3), the Tribunal must disregard the applicant's conduct in Australia. However, in reaching its decision, the Tribunal has given consideration to the applicant's conduct in Australia. In paragraph 58 at page 12 the Tribunal says, in its decision, that:
“Having regard to all circumstances, including the applicant's limited knowledge and limited practice of Falun Gong in Australia, the Tribunal does not accept the applicant has become a genuine Falun Gong practitioner since arrival in Australia.”

The manner in which the Tribunal should consider s.91R(3) was considered by a Full Bench of the Federal Court, Spender, Edmonds and Tracey JJ in SZJGV v Minister for Immigration [2008] FCAFC 105 whereat [22], their honours said:
“[22]We accept the Minister’s submission that s 91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application. If it has occurred then consideration must be given to the requirements of s 91R(3).”
In the instant case, the Tribunal has questioned the applicant upon her conduct in Australia for the purpose of discovering whether or not it occurred, and if it did occur, whether it could be satisfied that she engaged in that conduct otherwise than for the purpose of strengthening her claim to be a refugee. This is all that the Tribunal did. Having come to the conclusion that it was not so satisfied, it took no further regard to the existence of the applicant's conduct within Australia in considering whether or not she had a well‑founded fear of persecution should she return to China. There is simply no further reference to the conduct in Australia after the Tribunal has come to the conclusion that it did.
When the applicant appeared before me today she told me that she had come from Shanghai and had left a good life and a good job and a good income behind her. She implied that she would not have done this had she not been a genuine claimant for refugee status. She said that she had a normal life before she left China and it was only because of Falun Gong that her life had been interrupted. She told me that she really was a Falun Gong member and that she had taken part in Falun Gong activities in this country. She told me that she had documents and photographs about that action and she wanted the Tribunal to reconsider her case. None of these matters constitute a claim that the Tribunal fell into jurisdictional error. I am satisfied that the Tribunal did not do so in the way claimed in the application and I have not been able to find any other hint of jurisdictional error in the decision record that I have considered.
I dismiss the application. I order that the applicant pay the first respondent's costs which I assess in the sum of $3,500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 July 2009