SZOEH v Minister for Immigration
[2010] FMCA 435
•25 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOEH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 435 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it incorrectly applied s.91R(3) of the Migration Act 1958 – matter turns on its own facts. |
| Migration Act 1958, ss.91R, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZOEH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 378 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 June 2010 |
| Date of Last Submission: | 7 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Douglas-Baker |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 378 of 2010
| SZOEH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China and claims that she became a Falun Gong practitioner while in Australia. She also claims to have been involved in various Falun Gong activities.
The applicant claimed to fear persecution in China because she is a Falun Gong practitioner.
After her most recent arrival in Australia on 2 August 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 14 September 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 28 of the Tribunal’s decision (Relevant Documents (“RD”) pages 206 – 230). Relevant factual allegations are summarised below.
At this point, it should be recorded that the applicant’s claim for a protection visa and her subsequent application to the Tribunal to review the delegate’s decision was accompanied by a related claim made by the younger of her two sons who had been completing his secondary education in Australia. He is not a party in these proceedings. However, the Tribunal considered the two claims in conjunction as this was how they were made. The applicant’s son gave evidence before the Tribunal on the same occasions as the applicant and his evidence was relevant not only to his own alleged entitlement to a protection visa but also to that of his mother.
Protection visa application
The applicant made the following claims in a statement accompanying her protection visa application:
a)her husband began practising Falun Gong in 1998 but, after it was banned by the Chinese government, was forced to give it up;
b)when she first came to Australia in 2005 she received some Falun Gong materials which she took back with her to China. Her husband started using the materials at home and his practice of Falun Gong improved;
c)she returned to Australia in August 2008 as guardian of her younger son who was here on a student visa. Whilst here, she learned from her family in China that her husband had invited former practitioners to his home to view Falun Gong CDs which she had brought back from Australia. However, someone had informed the police and the applicant’s husband had been arrested. He was accused of propagating reactionary ideologies and of organising illegal activities and he had been detained in a detention centre. He had refused to make a confession and suffered a lot of mistreatment as a result;
d)she was told by her husband’s younger brother that the police suspected that she was the source of the Falun Gong materials and that they were working hard to obtain any information relating to her involvement in the matter; and
e)the police have requested that she return to China in order to assist them in their investigation or face grave consequences.
Review application
The applicant appeared before the Tribunal on 9 November 2009,
8 December 2009 and 19 January 2010. On the first hearing day, the applicant made the following additional claims:
a)her protection visa application forms and accompanying statement were completed and written for her by her younger son;
b)her husband invited his ex-Falun Gong practitioner friends to his house in January 2009 to view the materials which the applicant had brought from Australia. About five months later the police found out about this and in May 2009 they raided her husband’s place. He was arrested and is still in prison;
c)she has not had contact with her husband since May 2009; and
d)she started believing in and has been practising Falun Gong since January 2009. She initially practised with a group in Central Park in Sydney but, having learnt the exercises, now practises mostly at home. She has also distributed leaflets and has taken part in demonstrations.
During the hearing the applicant advised the Tribunal that her husband’s employer in China was aware of his circumstances and, if the Tribunal made contact, would be able to confirm her claims. The Tribunal agreed to do so and, with the applicant’s permission and in her presence, proceeded to telephone the applicant’s husband’s employer. The person who answered the Tribunal’s call advised the Tribunal that the applicant’s husband was the company’s production manager, that he had come to work that morning and that he had also come to work the day before. The applicant subsequently admitted that she had lied about her husband’s arrest and imprisonment but claimed that she had been a genuine Falun Gong practitioner since January 2009. The Tribunal also took evidence from the applicant’s son who claimed that, while he did not do the exercises, he believed in Falun Gong and had been distributing Falun Gong leaflets since June 2009. He also claimed that he would be persecuted in China because he supported his mother and father.
At the second hearing day on 8 December 2009, the applicant claimed that she had been practising Falun Gong and had engaged in various Falun Gong activities in Australia since January 2009. She also claimed that she had distributed leaflets criticising the former Chinese president for persecuting Falun Gong practitioners and had encouraged Chinese Communist Party members to leave the party. She claimed that she would never stop practising Falun Gong and for this reason could not return to China. At the hearing the applicant’s son claimed that he had become a Falun Gong practitioner, apparently after finishing his secondary schooling at the end of 2009, and had also attended various Falun Gong activities.
On 7 January 2010 the Tribunal received two petitions signed by ten Falun Gong practitioners, all Australian residents, stating that they had seen the applicant and her son practising Falun Gong at Belmore Park, Burwood and Darling Harbour. The petitioners also stated that they believed that the applicant and her son would be persecuted in China for their Falun Gong practice and for their participation in Falun Gong activities.
At the third hearing day on 19 January 2010 the applicant admitted that she had lied in her original statement about her husband’s arrest and imprisonment and, in association with that claim, had also lied about the following matters:
a)that when she returned to China in December 2006 she brought with her Falun Gong materials which she had picked up in Australia;
b)that her husband had viewed these materials with his ex-Falun Gong practitioner friends;
c)that the police knew that she had supplied the materials; and
d)that her brother-in-law had advised her that she would be punished by the police if she returned to China.
She also stated that her husband was working in China and that he was well.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)as a consequence of the applicant’s admission that she had made false statements in support of her refugee application, the Tribunal found that the applicant was not a credible witness and that her evidence was unreliable;
b)the Tribunal was not satisfied that there was any chance that the applicant would be persecuted in China for supplying Falun Gong materials to her husband, noting that:
i)she admitted that she had lied and that her husband was in fact a free man who was working and was well; and
ii)she had lied about having an adverse profile with the local Chinese police as a result of supplying her husband with Falun Gong materials;
c)the applicant’s blatant manufacture of the untruth concerning her husband’s imprisonment in China and the numerous other lies she made in association with this claim demonstrated to the Tribunal the extent to which the applicant would go to succeed in her refugee application. In light of this, the Tribunal was of the firm view that the applicant’s sole motivation for engaging in Falun Gong activities in Australia was for no purpose other than to strengthen her refugee claims. The Tribunal therefore disregarded these activities pursuant to s.91R(3) of the Act;
d)consequently, the Tribunal found that the applicant had never been a Falun Gong practitioner and did not accept her claim that she would practise Falun Gong if she returned to China;
e)the Tribunal found that the applicant did not have a real chance of persecution in China for reasons of her son’s Falun Gong and anti-Chinese government activities in Australia, noting that:
i)she did not claim to have such a fear;
ii)none of their family members in China had been subject to harassment from the authorities as a result of the conduct of the applicant’s son; and
iii)there was no evidence that the applicant’s son had any adverse profile with the Chinese authorities which could result in her facing any harassment on her return; and
f)the Tribunal did not accept that the applicant would be persecuted in China for her Falun Gong practice and participation in Australia as asserted by the petitions received by the Tribunal on 7 January 2010. In this connection, the Tribunal noted that the assertions of the petitioners were merely assumptions or based on speculation and there was no evidence that the applicant had any adverse profile in China for any reason.
The Tribunal’s findings concerning the applicant’s son are also relevant to these proceedings. The Tribunal’s conclusion that the son was not entitled to a protection visa was based on the following findings and reasons:
a)the Tribunal found that the son’s claim that he feared persecution if he returned to China because his parents are Falun Gong practitioners failed because it had found that his parents were not in fact Falun Gong practitioners;
b)pursuant to s.91R(3), the Tribunal disregarded the son’s Falun Gong related activities in Australia. It found that his involvement in Falun Gong activities in Australia was for the sole purpose of establishing a refugee claim. In support of this finding it referred to the son’s active part in manufacturing the untruth about his father’s imprisonment “and the numerous other associated lies”; and
c)the Tribunal found that the applicant’s son was not a credible witness and did not accept his claim that he would practise Falun Gong were he to return to China.
Proceedings in this Court
Only the first ground of the application commencing these proceedings was pressed. It alleged that:
1.The Tribunal erred in its application of s.91R(3) of the Migration Act to the applicant’s conduct in Australia.
Section 91R(3) provides:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
First contention
The applicant submitted that the Tribunal failed to take account of her allegation that her health and ability to sleep improved as a result of her Falun Gong practice in Australia. She pointed to evidence which she had given to the Tribunal to the effect that she had taken up Falun Gong to improve her health and that it had produced results.
The applicant submitted that if one of the reasons why she practised Falun Gong was its health benefits, this was a matter relevant to be taken into account by the Tribunal when considering the application of s.91R(3) to her case. She further submitted that if her health did improve as a result of her Falun Gong practice, as she claimed, this was also relevant to the Tribunal’s consideration of s.91R(3)’s applicability to her case.
In her written submissions, the applicant acknowledged that at para.107 of its decision record the Tribunal referred to her claim that her Falun Gong practice was related to her health. In that paragraph it said:
Did the applicant Mother engage in the Falun Gong related conduct in Australia for the sole purpose of strengthening her refugee claim or was the conduct engaged in for some other concurrent purpose? Her evidence is that she engaged in the conduct because she believes in the Falun Gong principles and the exercises has [sic] helped her to not have headaches and sleep problems and make her feel better and be a good person. The Tribunal has also taken into account statements and petitions by others essentially stating that she engaged in Falun Gong related conduct in Australia because she is a genuine Falun Gong practitioner. The Tribunal does not accept this evidence. The Tribunal is of the firm view that her sole motivation for engaging in all Falun Gong related activities in Australia was for no other purpose other than to strengthen her refugee claim.
The applicant submitted that although the Tribunal did make this observation, it did not make a finding on the question of whether her health did, in fact, improve and it failed to have regard to evidence that it did. She submitted that this failure amounted to jurisdictional error. She submitted that the Tribunal’s statement that it did not accept the evidence in question did not amount to an active intellectual engagement with that evidence and, when saying that it did “not accept this evidence”, might have only been referring to the “statements and petitions” of others and not also to her evidence. It was submitted that the Tribunal’s adverse finding as to the applicant’s credit did not have the effect of relieving it of the obligation to consider this evidence.
Consideration of the way the Tribunal expressed itself discloses that the Tribunal’s refusal to accept “this evidence” is a reference to the entirety of the evidence referred to prior to that statement. In the first sentence of the paragraph the Tribunal sets out the question which it had to consider. In the second sentence it refers to the relevant evidence given by the applicant. In the third sentence it refers to relevant evidence given by others. In the fourth sentence it states that it “does not accept this evidence”. Although “this” might in some circumstances refer only to the latter evidence, in context it must be understood to refer to all of the evidence to which the Tribunal had referred in that paragraph. That evidence included the applicant’s allegations that she practised Falun Gong for its health benefits and that she enjoyed such benefits as a result of that practice. Having referred to that evidence, the Tribunal proceeded to state that it did not accept it.
The Tribunal’s statement that it did not accept the evidence can only be construed as a finding that the evidence in question was not credible. This is the only reasonable construction of those words given that the issue which the Tribunal was addressing was the applicant’s motivation for participating in Falun Gong activities in Australia and given that, in the next sentence, the Tribunal went on to say that it was firmly of the view that the applicant’s sole motivation for engaging in that conduct was to strengthen her claim for a protection visa. Consequently, the Tribunal’s statement that it did “not accept this evidence” amounts to a finding on the reasons for the applicant’s practice of Falun Gong and the benefits said to flow from it.
As a result, the first issue raised by the applicant in respect of the Tribunal’s application of s.91R(3) is not made out on the facts and does not disclose jurisdictional error on the Tribunal’s part.
Second contention
The second submission made by the applicant in connection with s.91R(3) is that in the course of making its finding concerning the subsection’s operation in the circumstances of this case, and when finding that the applicant’s sole motivation for engaging in Falun Gong activities was the strengthening of her refugee claim, the Tribunal failed to have regard to certain evidence given by the applicant’s son. Relevantly, para.60 of the Tribunal’s decision records that the applicant’s son told the Tribunal in a letter dated 9 January 2009 that his mother was a loyal Falun Gong practitioner who “gains a lot of benefits such as benefits of good health and friendship of other practitioners” from her Falun Gong practice.
The simple fact that in that part of its decision appearing under the heading “Findings and Reasons” the Tribunal did not further refer to this evidence of the son does not necessarily lead to the conclusion that the Tribunal did not have regard to it. Indeed, the Tribunal’s reference to that evidence in its summary of the information provided to it prior to the third hearing supports a conclusion that it did have regard to it. In fact, the son’s letter should be understood to be amongst the “statements and petitions” which the Tribunal did not accept.
Contrary to the burden of the applicant’s submissions, it was not necessary for the Tribunal to expressly reject the son’s evidence concerning his mother’s Falun Gong practice. This was not only because that evidence was implicitly included in the “statements and petitions”, which the Tribunal did expressly refuse to accept as credible, but also because the applicant’s son was rejected by the Tribunal as a witness of credit for the same reason his mother was – the false claim concerning the applicant’s husband practising Falun Gong in China in 2008 and being detained as a consequence, together with the allegations which were related to this claim. An implicit rejection of the son’s evidence concerning his mother’s Falun Gong practice was subsumed in the broader rejection of his credibility overall. As the Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47]:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
Consequently, the Tribunal was not required to specifically reject the son’s evidence concerning the applicant’s Falun Gong practice.
For these reasons, I find that the applicant’s second contention concerning the operation of s.91R(3) in the context of her claim does not demonstrate jurisdictional error on the Tribunal’s part.
Generally
The applicant also submitted that her claim was in two parts, claims related to her husband and claims related to her practice of Falun Gong in Australia, and that adverse credit findings concerning the former should not have infected the Tribunal’s consideration of the latter. However, the Tribunal was free to deal with her and her son’s credibility in the way it did, findings on the credibility of a witness being matters par excellence for it: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. Once the Tribunal found that applicant and her son were not witnesses of credit on issues related to the applicant’s husband, it was open and consistent for it to reject their credibility generally. This, I have concluded, is what it did.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 June 2010
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