SZQXK v Minister for Immigration - [2012] FMCA 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQXK v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 482

MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – adverse assessment of knowledge of Falun Gong – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.430(1)

Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108
Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28
SZLSP v Minister for Immigration & Citizenship [2012] FCA 451

Applicant:

SZQXK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2758 of 2011

Judgment of:

Smith FM

Hearing date:

1 June 2012

Delivered at:

Sydney

Delivered on:

1 June 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2758 of 2011

SZQXK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a tourist visa in January 2011. On 25 March 2011 he lodged an application for a protection visa assisted by an agent, Weiming Qian. The application was accompanied by a typed statement recounting the applicant’s reasons for fearing return to his country of nationality, The People’s Republic of China.
The applicant claimed that he had been introduced to the practice of Falun Gong, following a back injury which caused him to spend a lengthy period in hospital. This was in 2007, and he said that he never stopped practice although he knew that he might be arrested. He continued to do so even after being questioned by the Public Security Bureau in November 2009. He claimed to have been demoted in his employment at that time after their questioning. He claimed to have talked to an acquaintance “about the Falun Gong and new books of Master Li”.
In May 2010, four police broke in when he was practising Falun Gong with three fellow practitioners at another person’s house. The applicant was questioned, mistreated, and sent to a detention centre. He was released after seven days, when his wife paid money to the warden. The police required him to report once a week, and searched his home. One of the other people arrested was sentenced for one year in a labour camp, and the other two were imprisoned for seven to 14 days. The applicant said he obtained a visa and came to Australia. After his arrival, he attended various activities of Falun Gong and “spread flyers about truth”.
The applicant did not present any corroboration of his claims to the Department of Immigration, but was interviewed by an officer on 13 May 2011.
A delegate made a decision on 16 June 2011 to refuse the visa application. The delegate said that he did not find the applicant to be a reliable witness. He said that his “testimony appeared evasive, rehearsed and contrived”. He thought the applicant “only has a superficial understanding of the essential concepts of Falun Gong not commensurate with the understanding I would expect from a genuine Falun Gong practitioner”. The delegate was not satisfied that the applicant was of any interest to the Chinese authorities for a reason related to the Refugees Convention.
The applicant lodged an appeal with the assistance of his migration agent, and attended a hearing of the Tribunal on 27 September 2011. At the hearing he presented two documents in Chinese. One was said to be the Chinese version of his protection visa statement, and the other was said to be an official detention notice which was translated to the Tribunal. The Tribunal recounts in its statement of reasons the evidence taken at the hearing, and I accept that description. The applicant was sent a copy of the recording of the Tribunal hearing, but he has not tendered a transcript in the present proceedings.
The Tribunal questioned the applicant about his personal history, including his employment, his claimed hospitalisation, his Falun Gong activities, and the mistreatment he claimed to have suffered at the hands of the Chinese authorities. The Tribunal also asked him a number of questions to assess his knowledge of the Falun Gong exercises, literature and beliefs. In the course of this questioning, the Tribunal drew to the applicant’s attention a number of inconsistencies and difficulties about his evidence.
The Tribunal made a decision on 31 October 2011, which affirmed the decision of the delegate. In its statement of reasons, the Tribunal recounted the evidence, and then gave its findings and reasons for concluding that there were “significant aspects of the claims and evidence advanced” which “impressed the Tribunal as vague, lacking in substance, lacking in consistency and lacking in credibility”. The Tribunal gave details of the difficulties it detected before expressing the conclusions:
91.Taking into account all the applicant’s claims and evidence, including the extensive and significant concerns identified above, the Tribunal is not satisfied that the applicant was a Falun Gong practitioner in China, nor that he was perceived to be. The Tribunal is not satisfied that the applicant was warned, detained, demoted or otherwise adversely targeted or treated by the Chinese authorities or any other person or entity in connection with any actual or perceived participation in Falun Gong activities.
92.While the applicant claims that he has participated in Falun Gong activities in Australia, this is evidenced only by the applicant’s unsubstantiated assertions as set out in his written claims and oral evidence. However, given the extent and nature of the cumulative concerns identified above, the Tribunal is not satisfied that his written claims are a truthful or accurate account of his circumstances, or that the applicant is a truthful witness. The evidence before the Tribunal does not satisfy it that the applicant has at any time been a Falun Gong practitioner, nor has he demonstrated any interest in or understanding of its most basic components. Based on the cumulative concerns identified above the Tribunal is not satisfied that the applicant has participated in any Falun Gong activities in Australia or in China, nor that he has any interest or intention of doing so in the reasonably foreseeable future.
93.On the basis of all the evidence before it the Tribunal is not satisfied that the applicant faces a real chance of persecution should he return to the PRC, now or in the foreseeable future, on the basis of any actual or perceived participation in Falun Gong activities. There is no evidence that the applicant faces a real chance of persecution in China for any other Convention reason. Therefore, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution in China for a Convention reason. Accordingly, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations.
The applicant now asks 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 he should be given permission to stay in Australia.
Grounds of the applicant’s application were set out in his original application, and he has not sought to embellish or explain them by way of amended application, written submissions, or oral submissions to me today. The grounds are:
1.The Refugee Review Tribunal (RRT) failed to comply with the duties imposed by section 430(1). RRT holds presumption which is not fair to the applicant, neither following the Refugee Convention. RRT stated that I might be pursuing business opportunities rather than seeking protection as I brought a large number of business card (para. 79 of Decision Record). This statement is not reasonable. The business card belongs to me and I see it as an identification item.
2.The RRT asked that why I had to remain in hospital for a month rather than lying in bed at home (para. 81 of Decision Record). Furthermore, the RRT concluded that my evidence about my back injury treatment in hospital was vague and changing. These questions I was asked were reasonlessly beyond the patient’s knowledge.
3.The RRT unprofessionally questioned me about my Falun Gong belief. The RRT concerned that I am not and has never been a genuine Fa1un Gong practitioner (para. 87 of Decision Record). This statement does not reflect the truth. I evidenced the concept of Fa1un Gong, and demonstrated Falun Gong.
Doing the best I can to understand these grounds unaided by submissions, I do not consider that they raise any argument of substance to establish jurisdictional error.
In relation to Ground 1, I am unable to detect any failure to comply with duties imposed by s.430(1) of the Migration Act 1958 (Cth) in relation to the preparation of a statement of reasons. It is therefore unnecessary for me to consider whether it would establish jurisdictional error, if there were such a failure.
In so far as the second sentence contends that the Tribunal closed its mind to a fair assessment of the applicant’s evidence and refugee claims, I am not satisfied that there is any evidence of this. On the Tribunal’s description of the hearing and considering its careful assessment of his evidence, there is no evidence which could satisfy the principles of apprehended bias identified by the High Court in the case of Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28.
The complaint about the Tribunal’s reference to his possession and presentation at the hearing of a folder containing a large number of business cards, concerns a statement appearing at the end of paragraph 79 of its “Findings and Reasons”. In this paragraph, the Tribunal identified evidence given to the delegate and to it, concerning the applicant’s employment history in recent years in China. On the evidence that emerged, this suggested that he had been pursuing a business career in China, rather than a career as a construction worker which was the suggestion in his original protection visa application. The Tribunal referred to the contradictory evidence on this topic, and to his showing the Tribunal his business cards. The Tribunal’ s discussion of the evidence concluded with the sentence:
79.… In relation to bringing his business cards to Australia, while he explained that he did not realise they were in his bag, in the context of all his evidence, including the concerns and credibility issues detailed in the balance of the Tribunal’s findings and reasons, the applicant’s evidence of having brought a large number of business cards to Australia raises questions regarding his motivations for coming to Australia, suggesting that he may be pursuing business opportunities rather than seeking protection.
In my opinion, the observation of the Tribunal was open to it on the evidence that was before it. The point made by the Tribunal does not appear to have loomed large in its assessment of the applicant’s overall credibility, and I can detect no evidence of any jurisdictional error affecting its decision arising from this part of its decision.
In relation to Ground 2, the Tribunal’s reasoning concerning the applicant’s claim to have spent a lengthy time in hospital, where he was induced to commence Falun Gong practice, is found in paragraph 81:
81.He claims that, as a result of this back injury he was hospitalised for one month. However, when asked to elaborate on why he had to remain in hospital for a month and to detail the treatment he received over that time, his evidence was vague and changing. He offered that he had to have a transfusion, but when asked to elaborate he stated that he did not mean a transfusion. He stated that he had to have injections, but when asked to explain what the injections were for he responded that they were not really injections. He referred to taking medication, using an ointment, lying in bed and being unable to walk for 30 days, but could not explain why he had to remain in hospital for a month rather than lying in bed at home. He informed the Tribunal (at paragraph 60) that around 20 days after his discharge from hospital he could walk without assistance and that he continued taking prescription medication for around two months after his hospital discharge.
The points made by the Tribunal in the course of the hearing and in this paragraph were, in my opinion, relevant to its assessment of the credibility of the history which the applicant presented to explain how he had taken up Falun Gong. It was also relevant to its assessment of his credibility generally. I consider that the criticisms made in Ground 2 do not rise higher than criticism going only to the merits of these assessments. They do not, in my opinion, identify any jurisdictional error.
In relation to Ground 3, the Tribunal recounted its questioning about the applicant’s Falun Gong practices and knowledge in its statement of reasons, and then referred to them in its “Findings and Reasons” as follows:
85.While telling the Tribunal that he practised Falun Gong for around two years following his discharge from hospital in around August 2007 and until being detained in 2009, despite several requests by the Tribunal, he could not elaborate on what his Falun Gong practice involved. While he offered that he was taught the first exercise, naming it as “Buddha has 1000 hands”, he was unable to identify the components of that exercise or name any of the other 5 exercises, stating that he only practised the first exercise for two years and by the time he wanted to start practising the second one he was discovered by the authorities. He could not name any Falun Gong books, stating that he does not like reading, nor could he recall the titles of any Falun Gong books he claims to have seen at his cousin’s house in China. While he claimed to have committed to Falun Gong as his faith while being aware, at that time, of the heavy risk of persecution practitioners face at the hands of the Chinese authorities, he was unable to explain what Falun Gong was or what informed his claimed faith and commitment to it beyond repeating that it is about sincerity, forbearance and compassion, and it helped his health. He demonstrated little or no interest in informing himself of basic aspects of Falun Gong practice, despite being in Australia since around January 2011, where he has the means and ability to access information regarding Falun Gong. He also provided details of his circumstances in China which reveal him to be working in a well‑paying job, and was unable to substantiate why he would risk his circumstances in China by adopting an unlawful practice which he has demonstrated little interest in or understanding of.
86.The Tribunal notes that Dr. Benjamin Penny has suggested that a genuine Falun Gong practitioner should: know of the main scripture of Falun Gong, Zhuan Falun, and how many chapters it contains, being 9; know of the existence of the 5 sets of exercises and be able to perform them confidently, allowing for physical disability; be able to explain why they do Falun Gong, what their experience of it is, how it has helped them and other people they know, etc . (“Falun Gong: An Academic’s Perspective” by Dr. Benjamin Penny – 26 July 2006).
87.While Dr Penny’s advice is not binding on the Tribunal, it provides useful guidance in informing the Tribunal’s assessment as to whether a person is a genuine Falun Gong practitioner. While the Tribunal is mindful that genuine Falun Gong practitioners can have varying levels of knowledge for a number of reasons, and does not consider limited knowledge in and of itself to be determinative of whether a person is a genuine Falun Gong practitioner, the Tribunal considers it significant that the applicant was unable to: substantiate what his claimed Falun Gong practice consisted of; to detail the content of his claimed faith in Falun Gong; or demonstrate what informed his commitment to a practice which he understood could expose him to significant risk of harm in China. In the context of the significant and extensive concerns set out in the balance of the Tribunal’s findings and reasons, the Tribunal considers the applicant’s inability to demonstrate: an understanding of: what Falun Gong is or its exercises; any interest or knowledge of its main texts, to be significant, raising concerns that he is not and has never been a genuine Falun Gong practitioner.
It is well established on Federal Court authorities that an assessment of refugee claims may be assisted by a decision‑maker’s exploration of the level of knowledge of a claimed practitioner of a religion or quasi‑religion such as Falun Gong. Cautions have been expressed and at times jurisdictional error has been detected. These authorities were recently re‑examined in the Full Court, including in Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159. Jacobson J concisely extrapolated “four essential principles” from the authorities, and described them:
7First, where an applicant applies for a protection visa on the ground of a well‑founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].
8Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [38] (SZLSP).
9Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].
10Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
There was a division of opinion in SZOCT whether jurisdictional error was shown in reasoning of the Tribunal concerning a refugee claimant’s claim to be a believer of Christianity. In the opinion of Jacobson J, the Tribunal’s reliance on a knowledge test concerning some aspects of Christianity did not have a rational or logical basis in evidence identified by the Tribunal. Buchanan J disagreed. Nicholas J agreed with Jacobson J, but held that the Tribunal’s ultimate conclusion was independently supported by other findings on credit. The Minister’s appeal was therefore successful.

The relevant authorities were also recently extracted by Bromberg J in SZLSP v Minister for Immigration & Citizenship [2012] FCA 451, including by reference to an earlier decision of the Full Court, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108, where a majority found jurisdictional error by reason of there being no evidence supporting the Tribunal’s reasoning.
The diverse judgments in the Full Court indicate that judicial minds can differ as to the existence of jurisdictional error in some cases. However in the present case, in my opinion, the Tribunal’s reasoning concerning the applicant’s lack of manifestly basic knowledge of Falun Gong practices and beliefs, was permissible and passes the tests identified by Jacobson J. I also note that this Tribunal’s decision was not based solely upon an assessment of the applicant’s knowledge of Falun Gong. In my opinion, this assessment played what appears to me a balanced role in its overall assessment of his evidence. In my opinion, no jurisdictional error is demonstrated in this part of the Tribunal’s decision.
I have therefore not found any jurisdictional error affecting the Tribunal’s decision, as contended in his application or arising elsewhere.
I must therefore dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 14 June 2012