SZOYI v Minister for Immigration
[2011] FMCA 368
•19 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOYI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 368 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to take certain facts into account, failed to apply the tests found in s.91R of the Migration Act 1958, failed to believe the applicant and affirmed the decision of the primary decision-maker. |
| Migration Act 1958, ss.91R, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZOYI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 71 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 May 2011 |
| Date of Last Submission: | 19 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 71 of 2011
| SZOYI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner and the subject of police harassment. He claims to fear persecution in China because of his religion.
After his arrival in Australia on 6 September 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 15 February 2010. The applicant then applied to the second respondent (“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 cannot rehear the applicant’s application for a visa. Its 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 – 14 of the Tribunal’s decision which I now summarise.
Protection visa application
The applicant made the following claims in his protection visa application:
a)in 2007 he began a restaurant business and invested 200,000 yuan in it;
b)in May 2008, twelve police officers attended his restaurant and requested the best private dining room, food and drink. At the end of the meal their leader refused to pay the bill of 7680 yuan. The police attended his restaurant on four other occasions requesting the best food and drink, and again refusing to pay their bills. As a result, by 10 May 2009 the police owed him 60,800 yuan in unpaid restaurant bills;
c)he asked an acquaintance of the leader of the police to pass on a message to him that if the police refused to pay their bill then he, the applicant, would report them to a “high level of authority”;
d)he started practising Falun Gong in 2001. He had read Falun Gong material that his parents owned and practised in his office at 10pm every day;
e)on 30 May 2009, while he was practising in his office, three police officers arrested him, searched his office and seized his practice CD and cushion. He said that at the police station the leader of the police had instructed the other police officers to teach him a lesson. He was handcuffed to a heating tube and “suffered belt-lashing and kicking”. He was released after an hour and the leader of the police told him that they were releasing him without reporting his offence;
f)the police attended his restaurant on two more occasions and refused to pay the bill. On some occasions the leader of the police had brought his family members and relatives to the restaurant, and refused to pay the bill. The applicant did not complain because he was a Falun Gong practitioner;
g)he sold his business for 120,000 yuan and approached an agent who manufactured travel documentation for him; and
h)if he returns to China he will not be able to survive because he is a Falun Gong practitioner and has suffered police bullying and abuse of power.
Departmental interview
On 2 February 2010 the applicant was interviewed by an officer of the Minister’s department. At the interview he made the following claims:
a)the agent who helped him fill out his forms for the visa on which he travelled to Australia had provided fraudulent information for fear that the Chinese government might find out that he, the applicant, was a Falun Gong practitioner;
b)he could not sue the police as the police and people in the court system protected each other. He had not talked to other restaurant owners in the area about the treatment he had received from the police as they did not discuss such issues in public;
c)he had commenced practising Falun Gong in the 1990s. Initially he had observed his family members practising and had read some books, and then he started to practise himself. He had started practising Falun Gong because he regarded it as a religion and saw how it improved other people’s lives. He had read Zhuan Falun after his arrival in Australia. He had not been able to find the book in China and had read some pamphlets;
d)after his arrival in Australia, he had not been aware that there were other Falun Gong practitioners in Australia. While walking in the street in Campsie he saw someone practising Falun Gong and he started practising when he was not working. He attended practice at 5:50am and on Wednesdays and Thursdays he joined other practitioners at 7pm at a park in Campsie to read books and to study Falun Gong theories;
e)in China he had practised at home but as his restaurant became busy he started to practise in his office sometimes. He suspected that the police had come to his office in May 2009 because they may have found out through a conversation or overheard from his employees that he was a Falun Gong practitioner;
f)when the police released him they told him that if they reported him he would be sentenced to gaol for a few years but they were not going to prosecute him on the condition that he did not sue them over the unpaid restaurant bills. He does not have a police record in China because when he was released the police had torn all the documents relating to his arrest in front of him to signify their arrangement;
g)he sold his restaurant in July 2009 because it was no longer profitable; and
h)the police would not tolerate his continued practice of Falun Gong in China and if he was found to be practising again he would be arrested. He fears that if he returns to China the police would “look for some trouble”.
Tribunal
The applicant attended a Tribunal hearing on 12 April 2010 and made the following additional claims:
a)he suffered stomach problems in 2001 and started practising Falun Gong with his parents. He had returned to his village for between ten and twenty days when he was sick and in that time learned how to practise Falun Gong;
b)he had read Zhuan Falun in the form of brochures in China, each of which contained one of the nine lectures found in the Zhuan Falun. He was “basically” familiar with the content of Zhuan Falun, but was not expected to remember everything;
c)in China he had owned a practice CD which he had received free from a fellow practitioner. The fellow practitioner had been a friend of a friend, and they had shared a meal and discussed their common belief in Falun Gong;
d)the police arrested him to frighten or harass him and as a means of reversing their debt. He said that he had not actually been detained by the police; it had only been an interview;
e)the police had not known that he had sold his restaurant in July 2009. He said that between the time he sold his restaurant in July and his departure for Australia in September they could have arrested him for his practice of Falun Gong but they had not because they owed him money. He also said that he had returned to his home town after selling the restaurant and the police had not been able to locate him;
f)if he returned to China, he would be arrested because he no longer owns the restaurant and the police know that he is a Falun Gong practitioner. He also said that if the local police station which owed him money did not arrest him, police at other police stations which did not owe him money might still arrest him; and
g)he is a genuine Falun Gong practitioner and did not practise just to obtain refugee status in Australia. He would be persecuted if he returned to China.
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)the Tribunal did not accept that the applicant was a genuine Falun Gong practitioner. It said that there were good grounds to conclude that the applicant was not telling the truth about his involvement with Falun Gong in China. The Tribunal noted in this regard that the applicant had said that he had read Zhuan Falun in the form of brochures or pamphlets, each containing one of the nine lectures which are contained in that book, and this meant that he was “basically” familiar with the contents of the book. However, when asked by the Tribunal about the contents of the book, he referred to the principles on which Falun Gong is based, truthfulness, compassion and forbearance, and a small range of other matters. The Tribunal found the applicant’s evidence about the contents of Zhuan Falun very superficial and did not consider it unrealistic to expect that the applicant should have known more about the contents of Zhuan Falun if he had been reading it since 2001;
b)the Tribunal did not consider that the evidence given by the applicant about what happened to him in China made sense. It did not accept that he was arrested in May 2009, kept for an hour and mistreated as he claimed. In this regard the Tribunal found that the police had no need to arrest the applicant for practising Falun Gong in order to obtain free food or to avoid paying their bills, noting that the applicant had said that the police had no intention of paying their bills and that he could not sue them in court to recover this debt as the police and the courts protected each other. The Tribunal also noted that the applicant sold his restaurant in July 2009 but did not leave China until September 2009, and if the police had refrained from arresting him because they had been getting free meals at the restaurant, they would have had ample opportunity to arrest him after the restaurant’s sale;
c)the Tribunal accepted that the applicant was involved in Falun Gong practice in Australia. However, it was not satisfied that this conduct was engaged in otherwise and for the sole purpose of strengthening his claim to be a refugee and therefore disregarded this conduct in accordance with s.91R(3) of the Act; and
d)the Tribunal did not accept that there was a real chance that the applicant would be persecuted because of his real or perceived involvement in Falun Gong if he returned to China. The Tribunal found that the police had not singled out the applicant and failed to pay their restaurant bills because of a Convention reason, rather, the police were just taking advantage of an opportunity which presented to them.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.I ran a restaurant at my home town. The business was getting better and better. The local police leader, Mr [Z] brought her colleagues, friends and family went to my restaurant for dinners refusing to pay. I had to ask an acquaintance of Mr [Z] to pass my message to him that if they still refused to pay the bills, I’d make complain against them at higher level of authority. I have been a Falun Gong practitioner. They arrested, tortured and taught me a lesson. At last, Mr [Z] told me they let me off without reporting my offence to higher level. From then, they continued to my restaurant refusing pay the bills. I know if I complained them, they would arrested me because they had the record of my being a Falun Gong practitioner. I could not stay in China, so I had to flee to Australia.
3.The Tribunal member didn’t take all my above-mentioned facts and evidences into account according to S91R of the Migration Act. The Tribunal member made jurisdictional error while considering my application for a protection visa.
The application commencing these proceedings alleges that the Tribunal failed to take into account the facts particularised in the first paragraph of the grounds of the application. However, the Tribunal’s decision shows that this is not correct. The matters which the applicant has particularised in his application were set out by the Tribunal in its summary of the evidence which was before it and were then the subject of its consideration prior to reaching its decision. In this latter regard it is clear from that part of the Tribunal’s decision under the heading “Findings and Reasons” that the Tribunal took this evidence into account when reaching its decision.
Further, it was not necessary for the Tribunal to make specific reference in its discussion of the evidence to the tests found in s.91R other than s.91R(3) which it did discuss specifically. This is because s.91R(1) and (2) had no work to do in this case as the Tribunal found that the applicant did not satisfy the Convention’s criteria, much less the more restrictive criteria found in s.91R(1) and (2). For these reasons the grounds set out in the application commencing these proceedings do not demonstrate jurisdictional error on the part of the Tribunal.
Further, in his oral submissions at the hearing in these proceedings the applicant challenged the Tribunal’s decision on the basis that it did not believe him and on the further basis that it affirmed the delegate’s decision to refuse him a protection visa. The Tribunal’s findings on the credibility of witnesses are ones par excellence for it. The Court cannot substitute its own views on such matters for those of the Tribunal, noting specifically in this case that the Tribunal’s finding on the credibility of the applicant’s claims was reasonably open to it on the evidence. Similarly, the Tribunal’s conclusion on the merits of the review application is not reviewable in proceedings such as these. It is necessary for the applicant to demonstrate that the Tribunal’s decision is affected by jurisdictional error, not that it reached a finding on the merits that a different person might not have reached. The allegations which the applicant has made do not support a finding that the Tribunal did err in this way.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 25 May 2011
0
1
1