SZNBH v Minister for Immigration - [2009] FMCA 407

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 407

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no errors in application of s.91R(3) – no other jurisdictional error – application dismissed.

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

SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515

Applicant:

SZNBH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3267 of 2008

Judgment of:

Smith FM

Hearing date:

22 April 2009

Delivered at:

Sydney

Delivered on:

22 April 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms B Griffin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3267 of 2008

SZNBH

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 April 2008, and on 14 May 2008 he applied for a protection visa assisted by a migration agent. In a brief attached statement, he claimed that his father had suffered persecution during the Cultural Revolution, that his family had been living with financial difficulty since that time, and that his education had been cut short. He also had suffered as a result of the Chinese ‘one-child’ policy after having a third child. He had been required to pay a fine before he could have the child registered, and this worsened the family's financial position.
He made a third claim, which was that he had started practising Falun Gong in 1997, and after it was banned in 1999 he had to practice privately at home. His statement said:
Later I became to know many other underground practitioners. I also obtained Falun Gong materials such as books and videotapes from them. If I were found by the local police, I would be arrested. I came to Australia because I know we can practise Falun Gong freely here.
A delegate of the Minister refused the visa application on 11 June 2008. The delegate referred to the applicant’s “scant claims”, and thought that there was nothing to suggest that the applicant would be of significant adverse interest to the authorities in China. The delegate also thought that the applicant's travel record, showing two departures from China on his own passport, suggested that he “held no significant anti-government profile at the time of his departure from China". The delegate thought that his other claims did not reveal a real chance of persecution for a Convention reason if he returned.
The applicant appealed to the Refugee Review Tribunal, and attended a hearing held on 24 September 2008. At the hearing, he presented four photographs showing him in company with protesters at a Falun Gong protest in Sydney. He told the Tribunal that this occurred in May 2008. He also told the Tribunal that he had recently found a Falun Gong site and had attended twice.
On the description of the hearing given by the Tribunal in its statement of reasons it put to him some concerns, including the following:
The Tribunal referred to the 4 photos he had produced which showed his attendance at an event on 10 May 2008. The Tribunal warned him that if the Tribunal found he had attended the event and had photos taken for the purpose of strengthening his refugee claims, it would be required to disregard the conduct pursuant to s.91R(3). He did not comment. The Tribunal asked who took his photos. He stated his friend (named) had taken the photos. He had also taken a photo of (named). Other than the 2 of them, they were not there with any other friends.
The Tribunal indicated that he spoke of attending an event on 10 May 2008 and had photos to show this. Yet his evidence is also that he found the Campsie Falun Gong site just 2 weeks ago; and he had said he had been busy working, saving money and finally had time. The Tribunal pointed out it would have been easy for him to ask Falun Gong practitioners about the location of Falun Gong practice sites. The applicant replied that when he first arrived he did not know too much about here. Even if he approached people and asked about a site, no one wanted to tell him as they did not know whether he was a genuine Falun Gong practitioner. Lots of people lodge applications on grounds of being Falun Gong and so people were reluctant to tell him where the sites were. The Tribunal held up the photos and pointed out he was surrounded by Falun Gong practitioners. The Tribunal indicated his evidence suggests he may have inserted himself into the demonstration only for the purposes of the photo taking. The applicant responded that that was impossible as the fact proves itself.
The Tribunal questioned the applicant about whether he had ever been the subject of interest by the police in China. The applicant claimed that they had made one visit to his home in 2001. The Tribunal also questioned the applicant about his travel to Singapore and Malaysia and return to China before coming to Australia, and about how he had obtained his passport. It also questioned the applicant about his knowledge of Falun Gong, in particular as to his knowledge of the major texts.
At the end of the hearing the Tribunal put to the applicant various concerns about his evidence, and received his comments. The Tribunal also referred the applicant to some country information about obtaining and using passports in China, and about the effects of the Cultural Revolution in China.
The Tribunal's decision was handed down on 4 November 2008. It affirmed the delegate's decision. Its reasons were set out under the heading “Findings and Reasons” in its statement of reasons.
The Tribunal thought that the fact that the applicant's family had suffered in the Cultural Revolution would not establish a real chance of prospective persecution for the applicant in China. It also thought that the applicant's breach of the one-child policy in the past would not establish a real chance of prospective persecution in China.
In relation to the applicant's Falun Gong claim, the Tribunal found that the applicant was not credible as a witness, and said that he “is not a Falun Gong practitioner”. It said that “it rejects his story in its entirety for the reasons that follow".
The Tribunal put particular emphasis on the applicant's lack of knowledge of the main scripture of Falun Gong, relying on country information suggesting that all practitioners could be expected to know of this. The Tribunal thought that the applicant had memorised some other facts about Falun Gong, but his scant knowledge of the main Falun Gong texts led it to conclude that he “has no commitment to Falun Gong and is not a Falun Gong practitioner”.
The Tribunal considered the evidence of the applicant obtaining and using a passport. Although it accepted that the applicant had paid a bribe, it did not think that this was a large bribe nor necessarily because he was a known Falun Gong practitioner. It thought that his delays in using his passport supported its conclusion that he did not depart China with any urgency, and that “he had no fear of persecution in China”. It did not accept that he had ever been of interest to the police, that he had ever been a Falun Gong practitioner, nor that he was currently a Falun Gong practitioner.
The Tribunal considered the applicant's account of his time in Australia over the five months or more since his arrival, including his evidence about participation in a Falun Gong demonstration and practice sessions. It concluded:
61.The Tribunal concludes that he attended the demonstration on 10 May 2008 solely for the photo opportunity and not because he had an interest in the aims of the demonstrators. The Tribunal accepts that he may have observed a Falun Gong practice site at Campsie and heard the name of the supervisor, but does not accept that he had any other involvement. The Tribunal does not accept that this involvement shows that he has now developed an interest in Falun Gong. He has not raised sur place claims as a result of his participation in the event.
62.The effect of s.91R(3) is that in determining whether the applicant has a well-founded fear of being persecuted, the Tribunal must disregard any conduct engaged in by the applicant unless he satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. However, the Tribunal finds that the applicant engaged in this conduct in Australia solely for the purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal does not accept that the applicant engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee and so the Tribunal has disregarded his conduct in determining whether the applicant has a well-founded fear of being persecuted in China for a Convention reason.
The Tribunal concluded that it was not satisfied that he had a well-founded fear of persecution for one or more of the Convention reasons now or in the reasonably foreseeable future if he returned to China.
The applicant now asks the Court to set aside the Tribunal's decision, and to remit the matter for further consideration. 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 he qualifies for a protection visa or any other permission to stay in Australia.
The applicant relies on his original application, and has not filed any amended application, written submissions or evidence additional to the Court Book. The ground of his application was set out as follows:
1.The Tribunal’s decision was affected by jurisdictional error in that it incorrectly applied S.91R(3) of the act.
Particulars
Refugee Review Tribunal (“the Tribunal”) was not satisfied 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. The Tribunal failed to invite the applicant to establish the purpose of his Falun Gong practice in Australia. The applicant claims that he did not practice Falun Gong for the purpose of his current visa application.
I have considered the particulars of this contention as making three possible assertions of jurisdictional error. First, whether the Tribunal erroneously had regard to conduct in Australia contrary to the provisions of s.91R(3); secondly, whether the Tribunal properly raised issues for the applicant's attention relating to his conduct in Australia; and thirdly, whether the Tribunal's conclusions about his conduct in Australia were open to it on the evidence before it as a matter of law.
I have above set out extracts from the Tribunal's reasons concerning how it explored his conduct with the applicant in the hearing and dealt with it in its findings and reasons.
In my opinion, paragraphs 61 and 62 demonstrate no error of law, in particular, as to the effect of s.91R(3) as explained by the Full Court in SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515. The Tribunal was obliged to make findings about the applicant's conduct in Australia, before considering the effect of s.91R(3) (see SZJGV at [22]).
The Tribunal's last sentence in paragraph 61 is not clear, where it said: “He has not raised sur place claims as a result of his participation in the event”. However, understood in context, I consider that this addressed the applicant’s claimed conduct in Australia, both a possible sur place claim by the applicant and as evidence that he had been in China and remained a genuine practitioner. Plainly the Tribunal did not accept either of these claims as having a factual basis, because it did not accept that he was a Falun Gong practitioner nor that he had been involved in Falun Gong activities in Australia. In this context, the Tribunal's statement that he “has not raised sur place claims” should be read as meaning that the Tribunal was not satisfied as to the truth of the claims which were made about that involvement.
As the representative for the Minister pointed out to me, the applicant had not claimed that he was at risk of persecution in China for attending a Falun Gong practice site or demonstration as a person who was not a Falun Gong practitioner but who had attempted to obtain evidence to support a refugee claim. Even if such a claim theoretically arose on the findings of the Tribunal, its conclusion in paragraph 62 as to his motives and the effect of s.91R(3) prevented it from having regard to that conduct in determining whether he had a well-founded fear of being persecuted in China for a Convention reason. In that sense also, the applicant did not ‘raise’ a sur place claim.
As to the sufficiency of the Tribunal’s alerting of the applicant about its consideration of the truth and motives of his claimed conduct in Australia, it is clear that at the hearing the Tribunal questioned the applicant about his conduct in Australia. I am not satisfied, at least in the absence of a transcript, that the applicant was not made fully aware that the Tribunal would consider these matters and might make findings about them adverse to the applicant.
As to the merits of the Tribunal's conclusions about the applicant's conduct in Australia, I consider that they clearly were open to it on the evidence before it.
I therefore am not satisfied that the ground in the application can be upheld in relation to any of its arguments.
The applicant today made a series of points in his oral submissions. They were:
1.In fact, the purpose of his participating in Falun Gong in Australia was not only to advance his refugee claim.
2.He had provided photos as evidence showing that he was not in disguise, so that he was at risk of being arrested and persecuted for participation in the demonstration if he returned to China.
3.Not all Falun Gong practitioners are applicants for refugee status and, implicitly, the Tribunal had not appreciated this.
4.The Tribunal was unfair in basing its decision on his answers about his knowledge of Falun Gong texts.
5.It was reasonable for him not to know the name of the supervisor at the Campsie practice site. He now knew the name of the supervisor, and could obtain evidence of his participation.
6.The Tribunal was unfair in asking him about his knowledge of Falun Gong books, and not to demonstrate his knowledge of the exercises.
7.He still suffered psychological harm from what had happened to his father in the course of the Cultural Revolution.
8.He had spent a lot of money and encountered difficulty in leaving China. This had also taken time because he was required to procure false documents and borrow money at high interest rates. If he had not been at risk of persecution, he would not have incurred these expenses.
I have considered all these points. As I have explained to the applicant, it does not assist him to obtain an order remitting the matter, that he might be able to present further evidence which was not actually given to the Tribunal. Moreover, it appears to me that most of his contentions go only to the merits of the Tribunal's assessment of his evidence, and do not raise any possible jurisdictional error in the Tribunal's assessment.
I consider that it was open to the Tribunal to base its assessment of the genuineness of the applicant's claimed Falun Gong commitment by testing his knowledge of the texts. There was country information before the Tribunal which left it open to it to give emphasis to that aspect of the practice.
I consider that the Tribunal's discussion of the applicant's claim relating to the Cultural Revolution showed no error of law or other jurisdictional error.
The Tribunal did consider the applicant's claims about how he obtained a passport and travelled out of China. I can detect nothing in its assessment of the applicant's evidence, and its rejection of some of his explanations, which could provide jurisdictional error affecting its decision.
Taking into account all that the applicant has put to me today, 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 thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 5 May 2009