SZOIU v Minister for Immigration

[2010] FMCA 821

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOIU v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 821

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – assessment by Tribunal of Falun Gong knowledge – not based on illogical grounds and no probative material – no jurisdictional error found – application dismissed.

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

Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO (2009) 238 CLR 642
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, (2010) 266 ALR 367
SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129

Applicant: SZOIU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 822 of 2010

Judgment of: Smith FM

Hearing date: 22 October 2010

Delivered at: Sydney

Delivered on: 22 October 2010

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms L Buchanan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 822 of 2010

SZOIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in July 2009, travelling on a tourist visa issued in Beijing shortly before his arrival, that visa being in a passport issued in January 2008 in the name of the applicant.  On 18 September 2009, he applied for a protection visa assisted by a migration agent, Weiming Qian.  No history was provided with the visa application to explain why the applicant feared to return to The People’s Republic of China, but on 6 October 2009 a short statement was provided to the Department. 

2. In the statement, the applicant claimed to have started to practice Falun Gong in early 2007.  In May 2008, when he was practising with other practitioners in the home of the person who introduced him to Falun Gong, several policemen searched the home, confiscated books and DVDs, and took participants to the Public Security Bureau.  He was tortured and insulted, and sentenced to re‑education through labour for six months.  In the course of this he had to accept “40‑day compulsory transformation of brainwash”.  After he was released, he was extremely weak.  He was required to go to the local police station and report every month, and his personal freedom was restricted.  While he had been held, his wife had divorced him and he had lost care of his daughter.  He said that he then employed an agency to get an Australian visa to come to Australia. 

3. The applicant was questioned about his claims at an interview with a Department officer on 18 November 2009.  The officer obtained the tourist visa application which had led to the Australian visa being granted, but the applicant disclaimed any knowledge of how it had been obtained. 

4. The delegate made a decision on 1 December 2009, refusing the visa application.  In discursive reasons, the delegate referred to a number of reasons for finding that there was not a real chance of persecution occurring if the applicant returned to China.  This included doubts about the applicant’s credibility based upon his obtaining and travelling on a passport in his own name, and other matters. 

5. The applicant appealed to the Tribunal assisted by his migration agent.  He presented a document to corroborate his divorce from his wife, but no other corroborative evidence.  He attended a hearing of the Tribunal on 16 February 2010.  A transcript of the hearing is not in evidence, and I have no reason not to accept the description of the hearing given by the Tribunal in its statement of reasons. 

6. In its description, the Tribunal recounted questioning the applicant about the matters that concerned the delegate about the issue and use of the passport, but most of its questions concerned his practices in relation to Falun Gong in Australia and in China.  The applicant told the Tribunal that in Australia he “sometimes practises on weekends and reads books at home”.  He had never attended a Falun Gong practice site in Australia, and gave several reasons for this.  The Tribunal expressed surprise about his not practising in Australia with others “in a way most Falun Gong practitioners practise”, and expressed difficulty accepting his explanations.  It is clear that the applicant was given a very full opportunity to address these concerns. 

7. The Tribunal then questioned the applicant about the exercises he had performed in China and in Australia, and about the principal text of Falun Gong “Zhuan Falun”, which the applicant claimed to have been studying.  The applicant was questioned about the five exercises and asked to demonstrate two of them.  Some aspects of the applicant’s answers were accepted as correct by the Tribunal, but in relation to some of his responses, the Tribunal expressed some concerns which were answered by the applicant. 

8. The Tribunal made a decision on 23 March 2010, affirming the delegate’s decision.  The Tribunal recounted the applicant’s claims and his evidence at the hearing.  It identified background information about Falun Gong, its exercises and chief text, and evidence given by an expert concerning what could be expected to be demonstrated by practitioners. 

9. In its statements of reasons, the Tribunal expressed a conclusion at the commencement of its discussion: 

   97.The applicant demonstrated an understanding and knowledge of the theory of Falun Gong and was able to provide some information on the exercises; he was able to name the leader, the significance of xinxing and the core concepts of truthfulness, compassion and forbearance and was able to indicate the significance of the Falun and its rotation.  The Tribunal accepts that the applicant has been studying Falun Gong.  However knowledge does not necessarily establish belief and for the reasons set out below, including inconsistencies with country information and implausibility in his evidence, the Tribunal finds that the applicant is not a Falun Gong practitioner. 

10. The Tribunal first identified “serious concerns relating to the applicant’s lack of involvement in any Falun Gong activities in Australia”.  The Tribunal considered the applicant’s explanations for his lack of involvement, and it explained why it did not accept them.  The Tribunal thought that there were readily accessible practice sites near to the applicant’s home in Sydney, which were conducted in his language on Sundays.  The Tribunal concluded: 

    102.The Tribunal accepts that the applicant did not attend a Falun Gong practice site in Australia, or did not become involved in any Falun Gong activities in Australia.  The Tribunal does not accept that the applicant did not do so because he did not speak English, was afraid, did not like going out, it was not necessary to practise with others or had to work.  In the Tribunal’s view the applicant’s reason for not publicly practising Falun Gong in Australia is due to the fact that he is not now or has never been a genuine Falun Gong practitioner. 

11. The Tribunal then assessed the standard of the applicant’s understanding and knowledge of Falun Gong, and concluded that it was deficient when compared to “the length and regularity of his claimed practise of Falun Gong”.  It said:  

    104.However, as outlined in detail below, he was unable to provide information on key aspects of Falun Gong practice commensurate with the length and regularity of his claimed practise of Falun Gong.  This leads the Tribunal to find he is not now or never has been a genuine Falun Gong practitioner. 

12. The Tribunal explained some instances of this, including the applicant’s inability to recite verses recited before exercises, which it thought were “integral to practising the exercises”.  It referred to the applicant saying that there were seven or eight lectures in Zhuan Falun, whereas it thought he should have known there were nine lectures.  In relation to the applicant’s demonstrations of the exercises, the Tribunal expected, based on the expert opinion, that he should be able to “perform the exercises confidently”, but concluded that he was not able to do so in relation to exercise 1.  The Tribunal also referred to some other aspects of the applicant’s evidence which it thought revealed implausible or inconsistent responses, and which added to its doubts about his veracity. 

13. The Tribunal addressed the issues posed by s.91R(3) of the Migration Act 1958 (Cth), and was not satisfied that he had engaged in conduct in Australia otherwise than for the purpose of strengthening his claim for refugee status. It was therefore obliged to disregard that evidence as evidence supporting a finding of refugee status. Under Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO (2009) 238 CLR 642, it was entitled to take that conduct into account adversely to the assessment of the applicant’s credibility.

14. The Tribunal concluded that it “does not believe that the applicant is being truthful”.  It therefore did not accept that he was “a genuine Falun Gong practitioner or was a genuine Falun Gong practitioner who was ever involved in Falun Gong practice in China”.  It therefore did not accept that he had been persecuted as claimed, or would be persecuted if he returned to China.  It did not accept that there was a real chance that he would be persecuted if he returned to China. 

15. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for reconsideration.  I have no power to make those orders, unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia. 

16. The applicant’s original application sets out three grounds of application without any particulars.  They are: 

    1.There exists lack of procedural fairness. 

    2.There exists error in the application of law. 

    3.The facts were not ascertained and wrong decision was made based on insufficient evidence. 

17. These grounds have not been given meaningful content by way of an amended application or written submissions.  Today, the applicant criticised the Tribunal’s decision, in so far as it relied on his conceded conduct of not participating in Falun Gong practice with other people in Australia.  He perceived that the Tribunal had an opinion that only if people so participated would the Tribunal have accepted them to be genuine Falun Gong practitioners, and suggested that this was unfair. 

18. Implicit in that submission might be an argument that the Tribunal had arrived at its conclusion based on illogical or unreasonable grounds, so as to provide jurisdictional error such as was recognised in Minister for Immigration & Citizenship v SZMDS (2010) 266 ALR 367, [2010] HCA 16, or recently in Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108.

19. In my opinion, the Tribunal’s reasoning did not proceed in such an arbitrary fashion as the applicant submitted. I do not understand the Tribunal to have acted upon any invariable general assumption about participation in group practices in Australia, but to have assessed the applicant’s own conduct in Australia in the light of his situation and his refugee claims. I consider that it was open to the Tribunal to have put some, even substantial, weight on the applicant’s unconvincing reasons for not having participated in any group practice. I consider that this was a rational and relevant matter for the Tribunal to consider in combination with other matters when assessing the credibility of the applicant’s claims.

20. Nor do I consider that the other matters which were addressed by the Tribunal and taken into account adversely to the applicant, were “not grounded in probative material and logical grounds” (see SZLSP at [72]). Unlike SZLSP, the present Tribunal did identify the independent information which it relied upon when assessing the applicant’s level of knowledge and confidence in practice, and I am not persuaded that it arrived at unreasonable or irrational opinions when applying that material to the assessment of the applicant’s claims.  This is a case where, in my opinion, the Tribunal could “legitimately explore what [the applicant] knows about [Falun Gong] in order to assess the genuineness of the claim” (see SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [47]).

21. I have not been able to identify any other arguable ground of jurisdictional error arising from the grounds of the application or otherwise.

22. The applicant made no additional submissions except to assert the truth of his refugee claims. However, it is not my duty to decide their merits.

23. I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error, and I must therefore dismiss the application. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  5 November 2010