SZRAF v Minister for Immigration - [2012] FMCA 277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRAF v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 277

MIGRATION – Review of decision of Refugee Review Tribunal – persecution – grounds of religion and membership of Falun Gong – merits review – whether Tribunal failed to consider integer of claim – where Tribunal found applicant not genuine Falun Gong member – whether Tribunal required to consider applicant’s future practice if returned – whether s.420 goes to Tribunal’s jurisdiction – where applicant claimed nervous at Tribunal interview – whether applicant denied procedural fairness.

Migration Act 1958 (Cth), ss.91R(3), 420

Eshetu v Ministerfor Immigration (1999) 197 CLR 611

Applicant:

SZRAF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File Number:	SYG 3009 of 2011

Judgment of:

Raphael FM

Hearing date:

20 March 2012

Date of Last Submission:

20 March 2012

Delivered at:

Sydney

Delivered on:

20 March 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Piper

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 3009 of 2011

SZRAF

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 27 March 2011. On 27 June 2011 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 4 August 2011 a delegate of the Minister refused to grant a protection visa and on 12 September 2011 the applicant applied for review of that decision by the Refugee Review Tribunal. Although he had not attended an interview with the delegate he did attend a hearing by the Tribunal on 4 November 2011. On 25 November 2011 the Tribunal determined to affirm the decision not to grant the applicant a protection visa.
The applicant’s grounds upon which he claimed to be a person to whom Australia owed protection obligations were those of religion/membership of a particular social group, he claiming to be a Falun Gong practitioner. The applicant stated in his original application that he had become interested in Falun Gong and commenced practice of its exercises in 2006. In that document he claimed to have practised more frequently thereafter and printed and secretly handed out foreign media releases about the government’s inhumane treatment of Falun Gong practitioners. He told, in that document, that he met a work colleague who was also a practitioner and they discussed Falun Gong and practised secretly together. In August 2009, when he and two other members were practising in a small park, four local police arrived and arrested them. They were placed in detention and cruelly treated. He was forced to write a guarantee letter not to practice any more, and eventually, on the payment of a bond of 10,000 RMB, was released. However, he continued to practice and in late 2010 had heard that another member of his group had been informed against by the neighbourhood committee. That person was due to be arrested that day.
The applicant’s family worried for him that he might lose his social position, his family, his property and his life. He therefore tried to find an excuse to escape from China which he managed to do on 26 March 2011. When he arrived here he contacted a Falun Gong group and practised in Campsie.
At the hearing the Tribunal questioned the applicant about his statement. Some of the responses which the applicant gave to the Tribunal were not consistent with those provided in his written application. In particular he told the Tribunal that he commenced practising Falun Gong in 1996, whereas in his statement, he said he commenced practice in 2006. The Tribunal asked him why he had waited until 2011 to leave China if he had been arrested in 2006. The applicant told that he made an application to visit America before he made his application to visit China (sic) but was unsuccessful in obtaining a visa for that country.
The Tribunal questioned the applicant about his practice of Falun Gong in Australia and explained to him the provisions of s.91R(3) of the Migration Act 1958[1]. The Tribunal also questioned the applicant upon his knowledge of Falun Gong.
[1] “Act”
In its findings and reasons the Tribunal accepted that the applicant was a citizen of China but little else about the applicant’s claims.
“In relation to his Falun Gong claims, I do not find the applicant to be credible on some key aspects of his claims as outlined below. The following matters lead me to conclude that the applicant is not truthful or credible in relation to his Convention claims.” [57] [CB 119].
The Tribunal then sets out those areas of the applicant’s evidence which led it to come to the conclusion about his unreliability as a witness. Essentially this involved the discrepancies between what he had put in his written statement and what he had told the Tribunal. The Tribunal pointed out the discrepancy in the dates per when he first was introduced to Falun Gong and commenced practice, pointed out a discrepancy concerning a colleague with whom the applicant allegedly practised Falun Gong, and the time that he worked in the Industry Park Trading Company where he had allegedly met this other practitioner. There was a discrepancy about the date upon which he was arrested and also about whether a colleague was arrested with him.
“During his evidence before the Tribunal, he said he had not been arrested since May 2006 but he knows he is on the black list of the local police station because every time there are big events happening, the police would go to his place and tell him he is not allowed to go out. He told the Tribunal that they went to his place very often and it was very annoying. There was no reference in his PVA to constant harassment by the police. I do not accept that the applicant is on the blacklist, or that he was constantly visited by the police, as claimed.” [CB 120].
The Tribunal was also concerned about the delay in the applicant leaving the country. Before coming to Australia he had made another trip out of a China to Egypt and Turkey and then returned. His response as to why he had delayed, citing a festival in Tianjin and having work matters to deal with, did not impress the Tribunal which concluded that it could not accept that he was a Falun Gong practitioner in China.
“The above matters, collectively, lead me to reject the applicant’s claims that he will be persecuted if he returns to China. I am not satisfied that the applicant will be detained or seriously harmed should he return to China in the reasonably foreseeable future. I do not accept that he practised Falun Gong in China or that he was detained for that reason. The applicant told the Tribunal he has been practising Falun Gong since arriving in Australia. I accept that the applicant was able to provide information relating to Falun Gong. However, I am not satisfied that such knowledge has been acquired because he is a genuine Falun Gong practitioner. In relation to his practice of Falun Gong in Australia, I accept that he has attended some practice sessions at a park in Campsie and that he may have contacted the Falun Dafa organisation in Australia. However, I am not satisfied that the applicant participated in Falun Gong activities in Australia otherwise than for the purpose of strengthening his claims. Therefore, that conduct must be disregarded by me in determining whether he has a well‑founded fear of being persecuted for the practice of Falun Gong in China.
Overall, I am not satisfied that the applicant practised Falun Gong in China or that he was detained as claimed. I do not accept that he is on a black list or that he was harassed by the police for many years because he was regarded as a Falun Gong practitioner. I do not accept that he departed China because of a fear of persecution . . .” [58‑59] [CB 121].
On 29 December 2011 the applicant applied for review of the decision of the Refugee Review Tribunal from this court. His grounds of application were:
“(i) The Tribunal is not satisfied that there is a real chance that I will suffer serious harm or for any other convention reason. The Tribunal made an error in this finding.
(ii) The Tribunal is not satisfied that I am a person who Australia has protection obligations under Refugee’s convention. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.”
Insofar as the first ground is concerned it is no more than a statement of fact and does not constitute anything with which this court could become engaged in seeking jurisdictional error. The first sentence of the second ground is similarly a statement of fact. The complaint in the second sentence is not an indication of jurisdictional error. The Tribunal came to its conclusions about the applicant without the need to refer to independent country information, it was a conclusion based purely upon the evidence given by the applicant.
On 16 March 2012 the applicant filed a written submission. In that document he refers to issues which I take to represent his submissions as to the existence of jurisdictional error in the Tribunal’s reasoning. The first issue is:
9.The Tribunal failed to consider whether I will face persecution as a Falun Gong practitioner if I return to China. In the circumstances, the Tribunal failed to an aspect of my claim, (sic) giving rise to jurisdictional error.
10.In the above claim, a question for the Tribunal’s consideration was:
(a)Whether I would, as I claimed, continue to practice Falun Gong if I was required to return to China, and
(b) If so, whether there was a real chance I would be persecuted as a result.”
It will be clear from the extract of the Tribunal’s decision record already cited that the Tribunal did make a finding that the applicant would not face persecution as a Falun Gong practitioner if he returned to China in the reasonably foreseeable future. The reason for that finding was the Tribunal’s view that the applicant was not a genuine practitioner at all and had in fact never practised in China so he would not be in danger for anything that he did in the past. Insofar as the applicant made a claim that he would continue to practice in the future, this is not easy to see in the documentation, but might be found in what he said in his PVA:
“So after long‑term consideration of this matter I am not willing to give up the practice in future.”
Whilst in my view that sentence should be read in the context of the whole paragraph which relates to his practice in China prior to his coming to Australia and as a reason for him deciding to leave his homeland, I am prepared, for the purposes of this decision, to accept it as an indication that if he returned to China he would practice Falun Gong. To the extent that the Tribunal’s view of that claim was not covered by its general statements that it was not satisfied that the applicant would be detained or seriously harmed should he return to China, it is, in my view, covered by the Tribunal’s finding that he had not actually practised Falun Gong in China or been detained for that purpose.
If the applicant was not, as the Tribunal found, a genuine Falun Gong practitioner, then the Tribunal is not required to consider whether he will return to the practice should he be returned from Australia. There was implied in the Tribunal’s view that there was no practice to return to and therefore no reasonable chance that he would be persecuted as a result.
The next issue is described as follows:
“11. Section 420 provides that:
(1) The tribunal must [sic] carrying its functions under the act [sic], is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
Under this bowdlerised restatement of s.420 the following appears:
“Reasonable notice issue:
12.Where s420(1) stay [sic] that the Tribunal in carrying out its function under the Act, is to pursue the objective is to providing a mechanism of review that is fair, just, economical, informal and quick.
13.The Tribunal should give me fairly [sic] and just change [sic] to review my case under s420(1).
14.The Tribunal made error in the above findings.
15.That RRT decision is not in my best interest.”
Section 420 of the Act is a section intended to provide guidance to the Tribunal in the manner in which it carries out its duties. It is not a section which goes to the Tribunal’s jurisdiction; Eshetu v Ministerfor Immigration (1999) 197 CLR 611.
The claim made by the applicant in this submission is shorn of any particulars from which the court could understand what breach is actually alleged. There is nothing in the decision record which would indicate that the mechanism of review was not fair or just. There is no evidence suggesting that the constitution of a Tribunal or its procedures in relation to this particular applicant were not economical or informal and they were most certainly quick. So even if there was some form of jurisdictional error it does not seem to fall under any of those headings.
Before me today the applicant told me that when he gave evidence he was nervous so that was why his evidence was inconsistent. I have little doubt that the applicant was nervous at the time, as he is doubtless nervous today, but he did not suggest to the Tribunal member that he was unable to continue with the interview and the inconsistencies which the Tribunal pointed out are not small. In any event, the evidence that he gave to the Tribunal was all that was before it and without any other evidence of incapacity this court cannot interfere.
The applicant also told me that before he left China he had suffered persecution and that he had practised Falun Gong in China and continued to practice Australia. He claimed that he was indeed a genuine practitioner. He told me that if I needed further evidence about his genuineness, he could provide it, but as is explained to an applicant at a directions hearing in a written document provided by the court, the court’s remit is one of judicial review and is not an appeal by way of rehearing. Additional evidence for that purpose cannot be permitted.
It follows, in all those circumstances, I have been unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions in this case. The application is dismissed. The applicant must pay the First Respondent’s costs which I assess in the sum of $3,200.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 3 April 2012