SZNDT v Minister for Immigration
[2009] FMCA 482
•13 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDT & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 482 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as Falun Gong practitioner – disbelieved by Tribunal – Tribunal accepted his evidence about Falun Gong activities in Australia – found they showed absence of the commitment expected from a genuine practitioner – reliance on Australian conduct without making finding in terms of s.91R(3)(b) – jurisdictional error established – matter remitted. |
| Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b) |
| SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515 SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211 SZMDC v Minister for Immigration & Anor [2008] FMCA 1282, (2008) 104 ALD 426 |
| First Applicant: | SZNDT |
| Second Applicant: | SZNDU |
| Third Applicant: | SZNDV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 89 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 13 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2009 |
REPRESENTATION
| Counsel for the Applicants: | 1st and 2nd Applicants in person |
| Counsel for the First Respondent: | Mr H P T Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 18 December 2008 in case number 0805686.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 26 August 2008.
The first respondent pay the applicant’s costs in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 89 of 2009
| SZNDT |
First Applicant
| SZNDU |
Second Applicant
| SZNDV |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a husband, his wife and their daughter. The daughter came to Australia in May 2007 to study. The wife visited her in early 2008, and in June 2008 the husband and wife came to Australia. On 20 June 2008 they applied for protection visas assisted by a migration agent. Only the husband made claims to have suffered persecution, and to fear its repetition if he returned to the People’s Republic of China. I shall refer to him as ‘the applicant’.
A statement attached to his visa application narrated circumstances which he claimed gave rise to that fear. He referred to having suffered deprivations as a result of the Cultural Revolution and under the Chinese family planning policy. More recently, he narrated events which followed a traffic incident in March 2007. He claimed that drunken policemen had collided with his truck, and then had assaulted him, causing extensive injuries. They took him to the police station intending to detain him, but when his injuries were apparent they notified his family, who took him to the hospital.
The applicant said he started appealing to the relevant authorities who laughed at him. When he sought to complain on air to a radio station, his call was cut off. A series of events then happened to him, which he attributed to retaliation and threatening behaviour by the police. He claimed to have been ambushed and beaten, his children were harassed, and he was hit by a car in February 2008.
In this situation, he claims that a friend suggested that he should practise Falun Gong. He said that he did this. He practised the exercises and they helped his health. He practised at the friend’s home and his own home. He claimed to have been found doing this by police, and they questioned him before releasing him upon the payment of a fine. He claimed:
After release I mentally broke down. The police often came to my home and harass me warning, “If you dare to practice Falun Gong again and oppose the government you will be sent to jail.” After considering a lot, in order to let my family lead a peaceful life I thought of my wife and daughter in Australia, leaving my old parents and two young children, and under the help of the agent, arrived in Australia on June 6th 2008 under a visitor visa. With the introduction of the landlord I go to the small garden in Campsie and practice Falun Gong with the local practitioners. In my whole life, it’s been the first time that I enjoyed democracy, freedom and equality. Now I miss my relatives and co‑practitioners in China very much.
The applicant was interviewed by a delegate, who said that “although he had some knowledge of Falun Gong, when questioned about Falun Gong, some of the applicant’s responses to basic questions were either vague or incorrect”. The questions related to his knowledge of the Falun Gong literature. The delegate accepted that the traffic incident had happened, and that the applicant had complained. However she said that he thought the applicant was a victim of private harm and that his claim was not Convention‑related.
In relation to the Falun Gong claim, the delegate said:
·The applicant states that he has been practising Falun Gong since his arrival in Australia. However, in light of my assessment above, I cannot be satisfied on the basis of the limited information provided by the applicant, that any Falun Gong activities in Australia which may have been undertaken by the applicant have been commenced other than for the purpose of attempting to establish a ‘sur place’ refugee claim. My concerns about the credibility of the applicant’s claims that he is a genuine practitioner of Falun Gong and that he was of interest to the Chinese authorities prior to his departure from his home country, cast doubts on the motive behind his claim of involvement in Falun Gong activities in Australia.
The delegate said that she was not satisfied “that the applicant is a genuine and committed practitioner of Falun Gong and that, because of his adherence to Falun Gong, he was of interest to the Chinese authorities prior to his departure from China”.
On appeal to the Tribunal, the applicant presented a number of submissions and some documents which he claimed were corroborative of his account. In a submission which accompanied his application for review, he responded to the delegate’s reasoning about his Falun Gong claim:
I never claimed that I’m a devout Falun Gong practitioner, or a senior Falun Gong practitioner. I didn’t mention I have kept practicing Falun Gong since I came to Australia. I just said I practiced Falun Gong when I was in China, and practicing was very helpful to my health. I read “Zhuan Falun” before, but I never studied it. I agree with Master Li’s Falun Gong and his advocation of “Truth, Compassion and Forbearance” and Falun Gong’s analysis and comments on the CPC. I respect Master Li’s spirit of fighting against the CPC’s persecution. However, I do not agree with his point about using Falun to substitute the universe. I do not believe that when we are not practicing Falun Gong, Falun is still practicing people. The same as I like eating fish, which does not mean I must swallow both bones and viscera.
The applicant attended a hearing on 26 November 2008. In his written and oral submissions to the Court, he has made criticisms of how the Tribunal member conducted the hearing. He said that he formed the impression that “the appeal officer was very angry”, and said she was “very impatient, and even warned me to suspend my hearing”. The applicant complained to me that he thought the interpreter was cut off before translating his answers, and that he was not given an adequate opportunity to explain his history to the Tribunal. The applicant has not presented a transcript to the Court to give substance to these complaints, but he has raised enough support in the material before me to cause me to think that I should direct the preparation of a transcript, and even listen to the recording, before addressing the applicant’s complaints. However, as I shall indicate, I have found a jurisdictional error appearing from the reasoning of the Tribunal, upon which I propose to remit the matter. It is therefore unnecessary to adjourn the hearing to allow the applicant further time to present his complaint of apprehended bias.
According to the Tribunal’s description of the hearing, the applicant gave the following evidence about his practice of Falun Gong in China and Australia:
36.The Tribunal asked the applicant about his practice of Falun Gong. He said he practised at his home and a friend’s home and they practised about two to three times per week. The Tribunal asked him if he has practised Falun Gong in Australia. The applicant said that he practised “a bit” for the first days he came to Australia but not after that. The Tribunal asked him why he stopped his practice. The applicant said that the practice was done “too early”; he said that he could practice at home although he did not do so regularly. He agreed his idea was to practice to get over his injuries. The Tribunal asked the applicant why he did not practice regularly at home or with others in Australia. The applicant said that when he was in China he practised Falun Gong to rebel against the Communist Party and for his health but now it is not necessary to do so. He said that he has no time and has other things to do.
37.The applicant said that after he came to Australia he had a new understanding of Falun Gong and that understanding is that it is unnecessary for practitioners to be secret. In Australia they practice at 5am and Falun Gong practitioners in Australia are depressed. They should be natural and free. The applicant said that he almost does not practice Falun Gong in Australia and he is not fully devoted. He said that he knows the exercises and the Falun Gong symbol; he drew the symbol for the Tribunal.
The Tribunal made a decision on 18 December 2008, which affirmed the delegate’s decision. I must now consider whether it is affected by jurisdictional error, and should be remitted for further consideration.
In its statement of reasons, the Tribunal first addressed the applicant’s claims of persecution after a traffic incident. It rejected the applicant’s claimed history of ill‑treatment by police and subsequent harassment. It did so on the ground that:
49.… In the Tribunal’s view it is not plausible that police would have ill treated him to the extent that he claims at the scene of the accident and then, after taking him, as he told the Tribunal they did, release him and call his family so that he could be taken to hospital. It follows that the Tribunal does not accept that the applicant was harassed, threatened or harmed at any time as the applicant claims following the accident because of his appeal or that his computer was taken. Also it follows that the Tribunal does not accept that the applicant’s family in China have or had problems from police, authorities or anyone else because the applicant appealed.
The Tribunal appears also to have taken into account its opinion that the applicant and his family’s travel history was not “consistent with the applicant’s claims that he was persecuted in his country by police authorities and others there and had to leave China for that reason”. It is unnecessary for me to explore the sufficiency of this reasoning, to see whether it reveals jurisdictional error.
The issue upon which I have decided that the Tribunal made jurisdictional error arises from its reasoning where it referred to the applicant’s conduct in Australia in relation to Falun Gong practice. This raises the question whether the Tribunal complied with the requirements of s.91R(3) of the Migration Act 1958 (Cth).
Its reasoning was provided in one paragraph of its ‘Findings and Reasons’:
50.The Tribunal accepts that the applicant knows the Falun Gong symbol and the Falun Gong exercises but it does not accept as true that the applicant is a genuine Falun Gong practitioner, that he practised Falun Gong in China or that he was fined and detained in 2008 because of his practice in China. It follows that the Tribunal does not accept as true that the applicant’s family members are discriminated against or harassed because the applicant practised Falun Gong in China. Given the comments that the applicant made about Falun Gong and his lack of commitment to it and interest in it in Australia the Tribunal does not consider that it is plausible that he practised in China relatively recently, in 2007 and 2008, two to three times per week regularly as he claims for the reasons that he claims, namely for his health and to get over his injuries and to rebel against the Chinese Communist government. The Tribunal considered the applicant’s explanation for his lack of commitment to and interest in Falun Gong in Australia, namely that he no longer has the health reasons and he does not need to rebel against the Chinese government; in the Tribunal’s view this is not a reasonable explanation from someone who claims to have quite recently practised Falun Gong regularly and often, that is to say with a certain degree of commitment. (emphasis added)
The compliance of this reasoning with s.91R(3) as interpreted by the Full Court in SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515 was raised by me at the start of today’s hearing with counsel for the Minister. The documents filed by the applicant did not adequately formulate a ground of jurisdictional error of any type, and certainly did not identify the Tribunal’s reasoning in [50] as susceptible to an attack based on s.91R(3). I therefore offered the Minister an opportunity to prepare submissions addressing that issue in the course of an adjournment. However, counsel had anticipated the possible concern, and did not seek an adjournment. He was able to make helpful submissions on the issue, in particular addressing whether the Tribunal’s reasoning in the circumstances of this case was indistinguishable from the situation found in the three cases addressed by the Full Court in SZJGV, or whether it could be characterised in the manner that Jessup J addressed the situation in SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211 at [19].
It is unnecessary for me to explore the interpretational issues in relation to s.91R(3) which were discussed by Jessup J, and his analysis of SZJGV. I endeavoured to do this in SZMDC v Minister for Immigration & Anor [2008] FMCA 1282, (2008) 104 ALD 426, and need not repeat my discussion. In that case, I accepted Jessup J’s opinion that the Full Court’s judgment in SZJGV did not produce the result that a Tribunal was in breach of s.91R(3), if it relied upon the absence of conduct in Australia or upon an applicant’s positive conduct in Australia, where that inaction or action was not part of the claims presented by the applicant to the Tribunal.
In SZLDV a claim by an applicant that he was at risk of persecution for Falun Gong involvement was rejected by the Tribunal, based upon the applicant’s admission in his evidence to it that “he had not been involved in anything to do with Falun Gong in Australia”. Jessup J said that this evidence was not part of “his evidentiary case before the Tribunal” because “he relied only upon his conduct in China”. His Honour said at [19]:
I do not regard the circumstance of which he so informed the Tribunal as amounting to conduct engaged in by him within the meaning of s 91R(3) of the Act. Neither do I regard the subsection as applicable to that circumstance, because it was not an element of the appellant’s evidentiary case before the Tribunal.
Accepting, as I have, this distinction identified in the above authorities, the issue arises whether it is applicable to the present case. Counsel for the Minister conceded that the present case was not on all fours with SZLDV. In my opinion, this is clear, because in the present case the applicant did present his Falun Gong activities in Australia as “part of his evidentiary case” in support of his claim to have been in the past persecuted in China as a Falun Gong practitioner, and to fear continuing persecution if he returned. In my opinion, considering the applicant’s written and oral evidence to the Department and to the Tribunal, which I have extracted above, it cannot be said that the applicant did not include his conduct in Australia in relation to Falun Gong as “part of his evidentiary case”, even though he subsequently minimised its extent and attempted to explain this.
However, the fact that conduct in Australia was presented as part of the claims made by an applicant, does not mean that it cannot be discussed by a Tribunal at all, without a finding in terms of s.91R(3)(b). On the analysis taken in SZJGV, the Tribunal is entitled to make findings about whether the claimed conduct in Australia occurred, before its use of those findings is examined to see whether it involved a breach of s.91R(3) by taking into account conduct which is found to have occurred, without first finding in terms of s.91R(3)(b).
In the present case, the Tribunal’s findings about the applicant’s evidence are made only obliquely in [50]. However, in my opinion, this paragraph shows that the Tribunal accepted the applicant’s claims about what he did in Australia in relation to Falun Gong practice, in its references to “his lack of commitment to and interest in Falun Gong in Australia”. I cannot read that reference as a rejection of the applicant’s evidence about that conduct, and a finding that it did not happen. Rather, the reasoning shows the Tribunal accepting the applicant’s evidence about his Australian conduct, and using it as a reason for disbelieving his claim that he had previously practised in China as a committed Falun Gong practitioner. There was therefore reliance by the Tribunal upon conduct of the applicant in Australia, which he had himself presented to the Tribunal as part of his evidentiary case.
It is clear that nowhere in its statement of reasons did the Tribunal expressly make a finding in terms of s.91R(3)(b) about the applicant’s motives for the conduct which it accepted. Nor am I able from [50] or elsewhere to find any implicit finding by the Tribunal in terms of s.91R(3)(b).
In view of the fact that the Tribunal rejected the applicant’s credibility almost entirely in relation to his claims of events in China, including his Falun Gong practice in that country, it cannot be assumed at all that the Tribunal, when it accepted what he said he had done in Australia in relation to Falun Gong, also accepted that it was with the absence of the motive which is referred to in s.91R(3)(b). I find that the Tribunal did not make such a finding before it relied on the applicant’s conduct in Australia as part of its reasons for determining that he was not a refugee.
In my opinion, the Tribunal’s reasoning in this case in relation to the applicant’s evidence about his Falun Gong activities in Australia is indistinguishable from the three cases which were addressed by the Full Court in SZJGV. The Tribunal has not referred at all to s.91R(3), and indeed appears to have overlooked its provisions, at least in their application when making adverse findings about refugee claims. In my opinion, the Tribunal has taken into account the applicant’s conduct in Australia when determining his refugee status, in a manner which the Full Court has found to give rise to jurisdictional error. Although the Full Court’s judgment is under appeal in the High Court, I am bound to give it effect unless and until it is overruled.
In my opinion, jurisdictional error is made out in this case, and I can see no reason for declining to grant relief to the applicants.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 May 2009
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