SZNYQ v Minister for Immigration - [2010] FMCA 157

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYQ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 157

MIGRATION – Chinese applicant claiming persecution for Falun Gong activities and breaches of family planning policies – disbelieved by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

First Applicant:

SZNYQ

Second Applicant:

SZNYR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2400 of 2009

Judgment of:

Smith FM

Hearing date:

25 February 2010

Delivered at:

Sydney

Delivered on:

25 February 2010

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2400 of 2009

SZNYQ

First Applicant

SZNYR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife who arrived in Australia in January 2009. The wife had previously made trips from China to Singapore and again to Japan in 2006 and to Australia in late 2007, before returning to China. On 20 February 2009 she applied for a protection visa assisted by a migration agent, Weiming Qian. Her husband lodged an application as a secondary applicant, and did not present his own claims to fear persecution in China. I shall therefore refer to the wife as the applicant.
A statement attached to the protection visa application claimed that the applicant had suffered under the Chinese one-child policy by being fined upon the birth of her second child in 2005 and being forced to undertake tubal ligation. The statement said that she had become “very emotionally unstable” and that her travel had been “to relieve me”. She claimed that “during my trip, I learnt about Falun Gong from local Chinese community”. She said that “after returning to China, I continued to practise Falun Gong”. She claimed to have practised with a friend Mr Z, and in her Australian visit in 2007 to have “actively participated in many local Falun Gong groups”. She claimed that she brought CDs and books about Falun Gong back to China “for my fellow practitioners”
The applicant’s statement claimed that in March 2008 the police had arrested four people practising at a Falun Gong gathering, and that she was severely persecuted by being interrogated, mistreated physically, and sentenced to three months detention. She said “I sworn after my discharge I would at all costs leave this country which has no respect for human rights and religious freedom”. She said that in Australia she had actively participated in Falun Gong activities.
She presented to the Department some photographs of participating in Falun Gong demonstrations since her last arrival in Australia, a witness statement confirming her practise of Falun Gong since that time, and a document which was said to be a release certificate from a detention centre in China. She also presented a witness statement by a person in China which said that that person had “guided her to learn Falun Gong in December 2007”.
A delegate interviewed the applicant on 30 April 2009, and made a decision on 6 May 2009. The delegate was not satisfied that the applicant had substantiated a claim of having a well-founded fear. She accepted that the applicant had engaged in some Falun Gong activities in Australia, but was required to disregard them by s.91R(3) of the Migration Act. The delegate gave particular weight to her travel on her own passport, and was not satisfied that the applicant was of any interest to the Chinese authorities.
The applicant appealed without employing a migration agent, and she attended two hearings held by the Tribunal member. At the second hearing she was accompanied by her husband. The first hearing was held on 4 August 2009 and lasted for about three hours, and the second hearing was held on 7 August 2009 and lasted for about two hours. In the course of the proceedings in the Tribunal she presented further documents, including some witness statements concerning her claimed activities in China and Australia, and photographs and other documents.
A transcript of the hearings has not been presented in evidence by the applicant. The Tribunal did not include in its statement of reasons a narrative description of the hearings, but over many pages described the evidence presented by the applicant, both oral and documentary, under various topics. I am unable to identify any material piece of evidence presented to the Tribunal which was not examined by the Tribunal in the course of its discussion.
According to the Tribunal, in the course of the hearing and at its end, the Tribunal explained some particular concerns, to which the applicant responded, and she was also given an opportunity to respond to concerns which were set out in a written invitation for comments. She presented various pieces of evidence and contentions in response to that invitation. It appears from the Tribunal’s reasons that some of her responses were not accepted by the Tribunal, in particular, a doubt whether the applicant in fact had a second child in 2005.
The Tribunal made a decision on 4 September 2009, affirming the delegate’s decision. In a 30-page statement of reasons, the Tribunal member very thoroughly examined the evidence and explained reasons which, in my opinion, show a genuine attempt to distil from the applicant’s evidence those parts which it accepted and those parts which it did not accept.
The Tribunal identified, in my opinion, logical and rational reasons for having “serious concerns about the applicants’ credibility”, and appears also to have drawn upon the applicant’s demeanour and presentation in the course of the hearings. The Tribunal said:
[The Tribunal] found much of their evidence, particularly with respect to the applicant wife’s past travel, to be improvised and unconvincing; there were some inconsistencies between their accounts of key events; and some of the wife’s evidence appeared changeable.”
The Tribunal identified the applicant’s fears for returning to China as being based both on her past persecution in China as a Falun Gong practitioner and her current adherence to that practice, and also her claims that she feared being pursued by local family planning officials “pressing her to undergo sterilisation”.
In relation to the applicant’s Falun Gong claims, the Tribunal member thought that the applicant displayed some familiarity with Falun Gong teachings and practices, although it said it “formed the impression she had trouble explaining these in greater depth or speaking from direct personal experience”. It said that it considered her knowledge to be “only weak and inconclusive evidence as to whether she practised Falun Gong whilst still in China”.
The Tribunal identified “confused and changeable” evidence given by the applicant about whether she had shown interest or involvement in Falun Gong before December 2007, that is, after she had returned from her trip to Australia. The Tribunal found problematic her evidence of spending three days with Falun Gong practitioners in Canberra during that trip, and it rejected that claim.
The Tribunal rejected her claim to have brought back Falun Gong related materials from Japan and Australia, for reasons which it explained. It considered a letter from a neighbour in China, but explained why it placed little weight on that letter as independent corroboration. The Tribunal said:
In light of these concerns, the Tribunal does not accept that the applicant had any contact with Falun Gong practitioners in Japan or Australia; to have returned to China with Falun Gong-related materials; or to have had anything more than a fleeting glimpse of practitioners during her visits to these countries. This casts serious doubt on her credibility as a whole.
In relation to the applicant’s claims to have practised in China with Mr Z from December 2007 until her arrest in March 2008, the Tribunal acknowledged that she had given a “credible though fairly general description of their activities and precautions”. However, it said that her evidence had become confused and changeable when the Tribunal examined some aspects of this, including what had happened to her Falun Gong material she had brought back from overseas. The Tribunal referred to other problems, and said:
Against this background, the Tribunal finds that the applicant’s travel history indicates that she was not a Falun Gong practitioner at risk of persecution, and that she was not detained or otherwise mistreated.
Explaining this conclusion further, the Tribunal referred to delays in the applicant obtaining an Australian visa after her claimed release from detention, to her obtaining of a second passport, and to the activities of her husband and herself in seeking to travel as tourists to the USA before applying for an Australian visa. The Tribunal noted the ability of the applicant, her husband, and her daughter, to obtain passports and visas. It said that it did not accept the applicant’s suggestion “that the PRC authorities had any role” in difficulties which the daughter had encountered in leaving China, after the applicant had come to Australia. This appeared to have arisen from the cancellation by Australian authorities of her Australian visa.
The Tribunal assessed the documents purporting to corroborate the applicant’s persecution in China, and explained why it did not give weight to those documents.
The Tribunal found that the applicant was not a Falun Gong practitioner in China, and that she was also not perceived as such. In the light of its earlier findings and for other reasons, it did not accept that the applicant had been detained and mistreated or suffered any harm in China, and it rejected all the relevant aspects of her claims in relation to persecution as a Falun Gong practitioner.
In relation to the applicant’s claims to fear persecution under Chinese family planning policies, the Tribunal accepted that the applicant had two daughters and that the second daughter was an “out-of-plan birth”. It said there was country information broadly confirming that family planning in Guangdong is strictly enforced, primarily through the payment of fines and the activities of family planning officials. It accepted as plausible that some officials are heavy handed and intimidating. However, it said that it found “with confidence that the applicant wife was not subject to threats of forced sterilisation, or any other serious harm”. The Tribunal thought that the applicant’s evidence, including about her travels overseas and her return to her home area, indicated that she had no such fears. It accepted with reservation that the second daughter did not have household registration, but it did not accept that this established a real chance of the applicant herself “suffering persecution”. It said it was not satisfied that any harm to her “amounts to serious harm and is therefore persecution”.
The Tribunal did not accept generally that the applicants had political opinions which in the past or in the future would motivate them to engage in relevant conduct or to refrain from conduct in order to avoid persecution.
The Tribunal acknowledged the evidence that the applicant engaged in “a range of Falun Gong related activities following her most recent arrival” in January 2009. However, it was not satisfied that she had engaged in this conduct otherwise than for the purposes of strengthening her claims to be a refugee. Section 91R(3) of the Migration Act therefore required the Tribunal to disregard the conduct. The Tribunal was not satisfied that the applicant had a well-founded fear of Convention related persecution if she returned to China.
The applicant has applied to the court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only 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 she qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s grounds of her original application adopt a precedent which is unhelpful in its generality. The two grounds state:
1.The Tribunal made jurisdictional errors when considered my application for a protection visa. The Tribunal had bias against me. The Tribunal failed to consider my application according to s.91R of the Migration Act 1958 because of the Tribunal’s bias against me.
2.The Tribunal failed to carry out its statutory duty. The Tribunal didn’t notify me the reason or part of the reasons for affirming the decision of DIAC. The Tribunal failed to consider my application according to s.424A of the Migration Act 1958.
The applicant has not filed any amended application or submissions explaining these grounds or raising other grounds. Today her submissions to me maintain that all her evidence to the Tribunal was true and that she had a fear of returning to China. However, she was unable to identify anything in the procedures or reasoning of the Tribunal which might amount to jurisdictional error. I have not for myself identified any such error.
The assertion that the Tribunal had bias against the applicant is not shown to have any substance on the evidence before me. All the evidence points to a Tribunal member who made a genuine effort throughout its proceedings to assess the evidence as presented by the applicant with an open mind, and to arrive at a genuine determination as to the truth of that evidence when making a decision.
I can identify no “information” which would provide a reason for the Tribunal’s decision, which was required to be presented to the applicant for written comment under s.424A(1), and which was not so presented or which was put to her in a manner satisfying s.424AA. It appears to me that the issues upon which the Tribunal decided the case were very fully canvassed with the applicant both orally and in writing. Certainly in the absence of a particular argument, I am not persuaded that there is any substance to ground 2 of the application.
For the above reasons, I am not persuaded that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision and I must dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 12 March 2010