SZNBI v Minister for Immigration

[2010] FMCA 129

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBI v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 129

MIGRATION – Review of decision of RRT – where applicant unable to conduct proceedings – where court obtains assistance for him – whether Tribunal properly applied s.91R(3) Migration Act.

Migration Act 1958, s.91R(3)

Minister for Immigration & Citizenship v SZJGV & Anor [2009] HCA 40

Applicant: SZNBI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3269 of 2008

Judgment of: Raphael FM

Hearing date: 16 February 2010

Date of Last Submission: 16 February 2010

Delivered at: Sydney

Delivered on: 16 February 2010

REPRESENTATION

For the Applicant: IARC

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assesses in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3269 of 2008

SZNBI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of China.  He arrived in Australia on 17 April 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 16 May 2008.  On 18 June 2008 a delegate of the Minister refused to grant a protection visa and, on 17 July 2008, the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  On 28 July 2008 the Tribunal wrote to the applicant advising him that it had considered the material before it but was unable to make a favourable decision on that information alone and offered him a hearing on 28 August 2008 which the applicant attended.  The Tribunal then offered the applicant a further hearing which took place on 16 October 2008.  On 17 October 2008 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 6 November 2008.

2. On 10 December 2008 the applicant applied to this court for a review of the Tribunal’s decision.  The matter came before Registrar Hannigan for directions on 29 January 2009 when the matter was listed for hearing on 3 July 2009.  Between the time of the directions hearing and the time of the hearing the applicant suffered a serious industrial accident and was diagnosed with post concussion syndrome.  As a result of this accident the applicant had difficulties dealing with the current proceedings.  He presented doctor’s reports to the court indicating that he needed assistance in presenting his case.  He did have legal advice through the Minister’s scheme but he could not afford any other form of legal assistance. 

3. The case came before Barnes FM on 1 September 2009 when the originally adjourned hearing, which had been listed for 3 September 2009, was further adjourned until 15 October.  The matter came before me on 15 October and it became clear that the applicant could not conduct the case himself.  I therefore adjourned the matter until 18 December.  The applicant again appeared on 18 December and again satisfied me that he was not capable of participating appropriately in the proceedings, although he did have some understanding of why he was in the court and the importance of the proceedings to him.  In those circumstances the court used its good offices with IARC, a branch of New South Wales Legal Aid, to persuade them to assist the applicant in connection with these proceedings.  I am told today by Mr Mojtahedi, a solicitor with the organisation, that upon receipt of the letter from the court he contacted the applicant and has spoken with him on several occasions with the assistance of an interpreter in the Mandarin language.  I am aware that Mr Mojtahedi is a solicitor experienced in these matters and he also tells me that he has considered the green book and the applicant’s grounds for seeking judicial review and given him certain advice concerning it.

4. I am now satisfied that, as of today, the applicant is aware of what is going on and has given appropriate instructions.  The instructions that were given were for the court to consider the matter and come to its own decision upon it, based upon its reading of the court book, the application and the relevant law.  This is what the court has done assisted, as always, by the helpful submissions of the solicitor for the respondent. 

5. The grounds upon which the applicant claimed that he was a person to whom Australia owed protection claim were that he was a Falun Gong practitioner in China and had been since 1997.  He tells that when Falun Gong was declared to be an “evil cult” by the Chinese government in 1999 he ceased practising publically but continued to practice in his home.  The applicant told the Tribunal that before he came to Australia he travelled to Singapore and Malaysia.  The Tribunal discussed with him the reason for so doing and the applicant indicated that he had gone to Singapore as he feared persecution and wanted to go overseas.  As the conversation developed another reason appeared and that was that he went to Singapore in order to establish a history of travel in the region and return to China that would enable the applicant to obtain a visa to travel to Australia. 

6. The Tribunal questioned the applicant about any persecution that he had suffered in China and he told that, in 1999, the local police organised a group of people, including himself, to attend a brainwashing class.  He also said that he had taken to distributing leaflets towards the end of 2001 promoting Falun Gong and that he had distributed these leaflets in markets around five kilometres from his home.  Although he was never caught by the police doing that he was very lucky in that regard and feared if he had been caught he would have suffered.

7. The Tribunal asked the applicant questions about his practice of Falun Gong and his commitment to it.  The applicant told the Tribunal that when he travelled to Singapore he saw a number of people performing Falun Gong exercises.  He told that he obtained a copy of the Nine Commentaries booklet which had been produced by members of the Falun Gong movement and was highly critical of the Communist Party in China.  He told the Tribunal that he had taken this book to China with him and that the local police had found about this and had come and questioned him.  When that occurred he had denied any knowledge of it.  Although the Tribunal was satisfied that the applicant knew something about Falun Gong and the exercises it came to the view that it could not accept the applicant as a witness of truth in relation to his commitment to the cause. 

8. In particular it noted that he had not really had any persecutory conduct imposed upon him and that it found highly inconsistent his statement that he had travelled to Singapore because of his concerns about what might happen to him as a Falun Gong practitioner and yet he had returned to China with a copy of a very dangerous book that was likely, if it was found, to get him into considerable difficulties with the PSB.  The Tribunal concluded that, in its view, the reason that the applicant had travelled to Singapore was to strengthen his ability to obtain a visa for Australia and that he wished to do this for reasons other than his concern that he might be discovered as an illegal Falun Gong practitioner.  There were other matters that were raised by the Tribunal including the coincidence that the applicant had travelled both to Singapore and to Australia with two other men from his own village all of whom he claimed to be Falun Gong practitioners but yet he did not appear to have particular knowledge of them.

9. The Tribunal then turned to the applicant’s activities within Australia.  The applicant claimed that he had attended demonstrations and that photos had been taken and he had also practised Falun Gong in a public place.  The Tribunal dealt with these matters and its findings and reasons between [97] [CB 98] and [101] [CB 99].  The Tribunal concluded that the applicant had only indulged in these activities for the purposes of strengthening his claim to be a refugee.  For the purposes of these proceedings the most relevant paragraph is that found at [99]:

   “Although the applicant did demonstrate some knowledge of Falun Gong, the Tribunal has not accepted that the applicant practised Falun Gong in China.  The Tribunal does not accept that the applicant left China because he feared persecution as a Falun Gong practitioner.  Apart from claiming to be a long standing Falun Gong practitioner, which the Tribunal does not accept, the applicant has only given a vague explanation for why he has taken up Falun Gong practice in Australia.  This also leads the Tribunal to not accept that the applicant is a genuine Falun Gong practitioner.  The Tribunal is satisfied that the applicant only attended Falun Gong practise in Australia in order to strengthen his claim to be a refugee and the Tribunal has therefore disregarded this conduct.”

10. In his application under the Migration Act the applicant had only one ground for review. That was:

    “(1) The Tribunal’s decision was affected by jurisdictional error, in that it incorrectly applied section 91R(3) of the Act. (SZJGV v Minister for Immigrationand Citizenship [2008] FCAFC 105).

    Particulars: Refugee Review Tribunal was not satisfied the applicant’s conduct in Australia satisfied s91R(3) of the Act. According to 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 of page 12, the Tribunal says in its decision that “having regard to all the circumstances, including the applicant’s limited knowledge and limited practice of Falun Gong in Australia, the Tribunal does not accept that the applicant has become a genuine Falun Gong practitioner since her arrival in Australia.”

11. Whilst I am of the view that the paragraph referred to in the particulars does not assist the applicant it could be said that on one reading of paragraph 99, which I have extracted, the Tribunal utilized the practice in Australia to come to a conclusion that he was not a genuine Falun Gong practitioner and that involved using what occurred in Australia to make a conclusion about the situation in China.  The decision of the Full Bench of the Federal Court in SZJGV suggested that this was not an appropriate finding for the Tribunal to make.  In its view once the Tribunal had come to a conclusion that the Australian conduct was carried out for the purpose of strengthening the applicant’s claim to be a refugee then it should be disregarded for all purposes and so it could not be used to come to an adverse credibility conclusion about the applicant.

12. Unfortunately for the applicant the Full Bench decision was overruled by the High Court on 30 September 2009; Minister for Immigration & Citizenship v SZJGV & Anor [2009] HCA 40. In that case the High Court made it clear that:

    “It does not follow that the section operates in the manner suggested by the Full Court so as to prevent the application of evidence of conduct or views of that conduct adverse to the claim.”

    per Crennan and Kiefel JJ at [51]. Or at [65]:

    “In this case the object of s 91R(3) requires that the section be read more narrowly [64]. It should not be read as requiring evidence of a person's conduct in Australia, or that person's motive for that conduct, to be disregarded for any purpose in connection with the determination of their application for a protection visa. Evidence of that conduct and findings about motive may be applied to discredit the applicant's claim.”

13. In my view, if the Tribunal was referring in [99] to the applicant’s conduct in Australia influencing its views as to the genuineness of his Falun Gong adherence in China, then that is now permissible and therefore the sole ground of application must fail.  Mr Mojtahedi also reminded me that the Tribunal had applied the sole purpose test when considering the Australian conduct, saying, in respect of the applicant:

    “He only attended Falun Gong practice and the demonstrations in Australia in order to strengthen his claim to be a refugee.” [98] [CB 98]

14. It follows that I am of the view that the Tribunal did not make an error of law in the manner in which it came to its conclusion and its finding that the applicant was not a genuine Falun Gong practitioner and therefore had no well-founded fear of persecution for a convention reason.  In those circumstances I dismiss the application.  I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  24 February 2010