SZOQR v Minister for Immigration - [2010] FMCA 1017

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 1017

MIGRATION – Review of RRT decision – applicant a citizen of China whose claims to be a Falun Gong practitioner were rejected by the Tribunal – where applicant claimed to have practiced Falun Gong in Australia – whether Tribunal failed to consider applicant’s sur place claim.

Applicant:

SZOQR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2110 of 2010

Judgment of:

Raphael FM

Hearing date:

20 December 2010

Date of Last Submission:

20 December 2010

Delivered at:

Sydney

Delivered on:

20 December 2010

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2110 of 2010

SZOQR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on

21 December 2009 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 30 December 2009. On 20 April 2010 a delegate of the Minister refused to grant a protection visa and, on 21 May 2010, the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal which, on 25 August 2010, determined to affirm the decision under review. It handed down its reasons on the same day.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were her belief in and adherence to the philosophy of Falun Gong. At [86] [CB 92] the Tribunal summarises the applicant’s claims:
“She claims that in July 1994 she began to practice Falun Gong in a park near her home. She claims she performed exercises with this group until 1999 and her health improved. She claims that in 1999 their practice group was warned by the authorities not to practice, or they would be arrested. She claims that she attended a protest at the municipal offices in 1999. She claims that she was detained at a police station for three days and she refused to sign a declaration that she would not practice Falun Gong in the future.
She claimed in her application that she was taken to a labour camp for one year (although at hearing she said it was for one month). She claims that she was tortured and forced to work 16 to 17 hours a day. She claims her foot became swollen and she was sick, so she was allowed to go home. She claims that after her release she had to report to the police station each week and pay the police money. She claims that she did not practice since 1999 and has not been harassed by authorities since 1999 and had a job.
She claims she will be arrested if she returns as she did not report to the police station. She claims to have practiced Falun Gong once in Australia, but does not want to practice any more as she wants to get a job.”
The Tribunal questioned the applicant about these claims and about her knowledge of the Falun Gong movement. It came to the conclusion that her knowledge and practice and beliefs were rudimentary and were not commensurate with someone who had practiced for the length of time she claimed to have. Her awareness of the exercises was slight and the Tribunal found that she could not demonstrate the third exercise. She appeared to have a rather vague understanding of the connection between the exercises and the philosophy.
The Tribunal’s questioning revealed the principal inconsistency between her original claims and those put to the Tribunal was the time which she spent in detention, the applicant having originally claimed to have spent a year in detention but, before the Tribunal, said it was only a month. This inconsistency was significant in the Tribunal’s view of the applicant’s credibility. The Tribunal was also concerned at the applicant’s statement that she had only practiced Falun Gong on one occasion since her arrival in Australia and the fact that she had not really practiced any Falun Gong in China since 1999 and yet waited until 2009 before departing that country.
“Finally, the applicant stated she has not practiced since 1999, and the last time the police harassed her was in 1999. She stated that she has not practiced Falun Gong in Australia (except for on one occasion) and does not want to practice any more because she wants to get a job and make money. The Tribunal is of the view that a genuine Falun Gong practitioner would wish to practice in Australia where there is freedom to do so.
Furthermore, the claim that the last time she was harassed by authorities was in 1999, and the fact that she no longer wishes to practice indicates there is not a real chance of serious harm were she to return to China. This view is reinforced by the applicant’s own evidence that the fact that she was able to obtain a passport and leave legally may indicate she is of no interest to the authorities.” [92] [CB 94]
On 27 September 2010, the applicant filed with this Court an application for review of the decision of the Tribunal. It contained three grounds, but a close examination of those grounds would tend to indicate that they are, in fact, one ground only. As set out in the application, the grounds are:
“i)The Tribunal failed to deal with an indice of the applicant’s claim.
ii)The applicant claimed to have practiced Falun Gong in Australia, which gave rise to a potential sur place claim.
iii)The Tribunal made no findings about whether or not, if it did happen, it gave rise to a real chance of persecution.”
Mr Bevan, in his helpful written submissions, deals with these grounds as one ground, essentially being that the Tribunal did not deal with the applicant’s sur place claim. I think that he is correct in that interpretation. I also accept his submission that at [86] [CB 92-93], the Tribunal did note the applicant’s claim that she had practiced once in Australia and, in the extract from [92] [CB 94], the Tribunal made its decision upon the possible existence of such a claim.
As Mr Bevan points out, it is for the applicant to advance evidence and submissions in support of the sur place claim before the Tribunal, not before this Court. If she had more to say about the dangers of having practiced Falun Gong on one occasion in Australia, she should have done so.
It is also correct to say, as Mr Bevan has, that the Tribunal, having rejected the applicant’s claim to be a genuine Falun Gong practitioner, explicitly rejected the factual foundation for any sur place claim. I would add to that that the Tribunal’s finding was importantly directed to whether or not she would suffer persecution if she was refouled to China. That is the essential question that it had to ask itself.
The existence of past persecution only serves to inform a Tribunal as to the possibility of future persecution. It is not an end in itself. In this particular case, the Tribunal concluded that the applicant would not be in any danger should she return to China and it came to that conclusion having heard her evidence about her one occurrence of practice whilst she has been in this country. I do not believe that the Tribunal fell into the jurisdictional error suggested by the applicant in her grounds of application.
The applicant appeared before me today. Initially, she did not wish to say anything, but finally did tell me that she believed the Tribunal did not give careful consideration to her case. The Tribunal simply did not believe that she was a Falun Gong practitioner. She said that in relation to a lot of the questions she had been asked, it had been a long while since she had practiced, and she had forgotten the answers.
The Tribunal’s record of decision covers some ten pages and indicates to me a thorough consideration of the claims that the applicant made in her PVA and in her evidence before the Tribunal. The Tribunal’s reasons for decision indicate that those matters important to the Tribunal and to the applicant’s claims were taken into account. It hardly bears saying that it is the Tribunal’s duty to assess the applicant’s credibility and it is entitled to draw the conclusions which it did about the applicant’s failure to recall elements of her Falun Gong practice which formed the basis for her claim. Indeed, the Tribunal took into account these matters at [89] [CB 93]. It stated that in its view:
“It does not accept that her knowledge would be as basic as it was indicated at hearing.”
Finally, the applicant told me that she feared persecution on being sent back to China and that she wished to stay in Australia. Whilst these sentiments are natural, they do not add anything to her claims for review. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $4,800.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 22 December 2010