SZRCU v Minister for Immigration - [2012] FMCA 635

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRCU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 635

MIGRATION – RRT decision – Chinese applicants claiming persecution for Falun Gong activities – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

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

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16

First Applicant:

SZRCU

Second Applicant:

SZRCV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 237 of 2012

Judgment of:

Smith FM

Hearing date:

17 July 2012

Delivered at:

Sydney

Delivered on:

17 July 2012

REPRESENTATION

Counsel for the Applicant:

First Applicant in person
and on behalf of the Second Applicant

Counsel for the First Respondent:

Ms S Zowghi

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 237 of 2012

SZRCU

First Applicant

SZRCV

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife, who arrived in Australia in January 2011. On 23 May 2011, they lodged applications for protection visas. The husband’s application used Form D, for applicants who do not have their own claims to be refugees but seek qualification as secondary applicants. This also appears was his position when interviewed by the delegate and the Tribunal, notwithstanding that the statement supporting the wife’s application suggested that her husband had also practised Falun Gong and was at risk of persecution for involvement in Falun Gong.
The wife’s visa statement set out a history upon which she claimed fear of persecution if she returned to China. The statement said that “we were under government investigation and persecution because we were practitioners of Falun Gong”. It said that “it all started at the end of 2009” when a Falun Gong flyer and CD were left at their door in their apartment block. They watched the CD and commenced instructions in Falun Gong and to practise its exercises. It said that they were aware of the dangers of practising Falun Gong, and “we merely mimic what they do in the CD and kept our practice in secret”. However, this was “found out by the subdistrict office” and “the policemen as well as the subdistrict security came over to check on us, asking about the flyers”. The applicant wife was suspected of being an underground Falun Gong member and was taken for questioning. She and her husband then lost their jobs, and continued to be under surveillance. In a second incident, the applicant wife was taken to the police station “for brain wash” and was ill‑treated over three days of “re‑education”. She was not released “until our family handed in the letter of promise and the bail money”. The applicant wife was then required to report regularly.
The visa statement said that the couple had financial difficulties and arranged a trip to Australia, with the arrangements including travel to other countries prior to coming to Australia. The statement said that “one of my friends was investigated by the police because of us”. It said that “we can practise Gong here freely”.
The applicant wife was interviewed by a delegate in the Department of Immigration on 4 July 2011, and the delegate made a decision to refuse the visa on 8 July 2011. The delegate referred to continued repression in China of Falun Gong practitioners, but was not satisfied that the applicant wife had practised Falun Gong, or was detained by the police or anyone else. The delegate noted that the applicant wife had disclaimed that her husband had been a practitioner, and had said that he “only supported her”. The delegate referred to other inconsistencies between what she had said at interview and the visa statement, and said that she had difficulty when her knowledge of some aspects of Falun Gong was explored.
The delegate referred to the applicants’ delay in making application for protection, and to country information suggesting that persons coming to the adverse attention of the Chinese authorities would face difficulties obtaining a passport, and exiting and entering the country. The delegate noted that the applicant’s passport showed her visiting Singapore and Malaysia in April 2010, and Turkey and Egypt in September 2010, and returning to China without any problems. The delegate concluded that the primary applicant was of no adverse interest to the Chinese authorities and would “not be subjected to a real chance of persecution should she return to China”.
The applicants appealed to the Tribunal, and both of them attended a hearing held on 5 December 2011. A transcript of the hearing is not in evidence, but I accept the Tribunal’s description in its statement of reasons. This shows that it questioned the applicant about the events recounted in the visa statement and at interview, putting various inconsistencies to the applicants. The applicant wife maintained that her husband “is not a Falun Gong practitioner but supports her”, and that the various references to “we” in the visa statement were mistakes of the person who had assisted its preparation.
The Tribunal made a decision on 10 January 2012, and affirmed the delegate’s decision. In its statement of reasons, after recounting the evidence, the Tribunal indicated that it had found the applicant wife’s evidence “on the whole to be unreliable”, and that it found that “the applicant is not a credible or truthful witness and is therefore unable to rely on her evidence to find that she is a Falun Gong practitioner and that her claims resulting from this claim are genuine”.
The Tribunal then explained various inconsistencies and implausibilities in her evidence. It gave emphasis to the applicant’s retreat from the claims in the visa statement, that she and her husband had both been involved with Falun Gong and had suffered as a result. The Tribunal identified many other difficulties in her evidence of her involvement in Falun Gong and her persecution. Some of them might appear to be of debateable significance, but other concerns clearly had reasonable foundations and logical force.
The Tribunal concluded that the applicant wife had not been in possession of Falun Gong material, had not been arrested for being in possession of that material, and had not suffered any of the consequences which she claimed as a result. The Tribunal found that she was not a person of interest to the Chinese authorities.
The Tribunal said it accepted that the travel to Singapore and Malaysia, and to Turkey and Egypt had been “planned as part of an elaborate scheme to come to Australia”. However, the Tribunal thought that the applicants would not have been able to engage in their travel if the applicant wife had been monitored by authorities as claimed. The Tribunal did not accept her claim that she had been able to overcome these hurdles with the assistance of an influential relative.
The Tribunal considered the applicant wife’s evidence about her knowledge and understanding of Falun Gong. It thought that, although she had displayed knowledge, it was not commensurate with the length of involvement which she claimed. It accepted some of her evidence of Falun Gong activities in Australia, including that she “may have been coached in the theory of Falun Gong and may have attended Falun Gong study groups”. However, it did not accept that this was a weekly attendance as claimed, nor that it was evidence of a genuine commitment to Falun Gong.
The Tribunal found positively that she had acquired her knowledge of Falun Gong and been involved in its activities in Australia “for the sole purpose of strengthening her claims for a Protection visa”. It was therefore bound by s.91R(3) of the Migration Act 1958 (Cth) to disregard the evidence of those activities.
The Tribunal concluded that, because it found that the applicant wife had not practised Falun Gong in China and was not a genuine and committed practitioner, there was not a real chance that she would suffer serious harm if she returned to China.
The applicants now ask 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 applicants should have been believed, nor whether they qualify for a protection visa or any other permission to stay in Australia.
The grounds of their application are set out in the original application, and no amended application or explanatory written or oral submissions have been presented. The three grounds are:
1.RRT considered our case unfairly.
2.RRT did not consider our situation in China.
3.We will be put in jail if I go back.
I am unable to discern any particular argument which could identify an arguable jurisdictional error by reference to these grounds. Essentially, they all appear to dispute the merits of the Tribunal’s findings, but it is not the task of the Court to reconsider the merits for itself.
Unaided by any submission I have not identified any failure to follow procedures required by the Migration Act in aid of a fair procedure.
In my opinion, the Tribunal’s decision shows that it did consider all of their evidence concerning their past “situation in China”. It then arrived at adverse conclusions about the credibility of that evidence. In my opinion, its conclusions were open to it, and its ultimate conclusions pass the tests of logic and reasonableness identified by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16.
In my opinion, the Tribunal also did consider the future situation of the applicants if they returned to China. Although the expression of its paragraphs 141 and 142 could have been better expressed, I am unable to detect any error of law in its reasoning. It appears to me that its conclusion that the applicants are not persons to whom Australia has protection obligations followed irresistibly from its findings about the applicants’ past history and the genuineness of the wife’s involvement in Falun Gong in Australia.
For the above reasons, I have not been satisfied that the Tribunal’s decision is affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 24 July 2012