SZGYT v Minister for Immigration & Anor [2009] FMCA 189 (11 March 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 189

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – the Tribunal’s decision will be affected by jurisdictional error if the Tribunal ignores relevant material such that the exercise of its power is affected – an applicant’s credibility may be so compromised that evidence corroborative of his or her claims will not be persuasive – without more, the mere fact that a claim for protection is lodged promptly is not a fact which must be considered by the Tribunal such that a failure to consider it will amount to jurisdictional error.

Migration Act 1958, ss.54, 55, 91R(3)

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

Applicant:

SZGYT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3086 of 2008

Judgment of:

Cameron FM

Hearing date:

4 March 2009

Date of Last Submission:

4 March 2009

Delivered at:

Sydney

Delivered on:

11 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Counsel for the Respondents:

Ms A. Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3086 of 2008

SZGYT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He alleges that while in China he was detained, beaten and harassed by the Chinese authorities because of his involvement with that organisation. The applicant arrived in Australia on 7 August 2002.
2. The applicant claims to fear persecution in China because of his affiliation with, and practice of, Falun Gong.
3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 27 August 2002. The applicant then applied to the Refugee Review Tribunal (“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.
4. The Tribunal decision the subject of these proceedings is the fourth such decision relating to the applicant. The first Tribunal decision signed on 2 October 2003 was quashed by order of this Court on 21 September 2006. The second Tribunal decision signed on 21 December 2006 was quashed by order of this Court on 6 June 2007 and the third Tribunal decision signed on 23 October 2007 was quashed by order of this Court on 23 August 2008.
5. For the reasons which follow, the application will be dismissed.

Background facts

6. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 17 of the Tribunal’s decision (Court Book (“CB”) pages 170 – 183). Relevant factual allegations are set out below.

Protection visa application

7. In his protection visa application the applicant alleged that because of his Falun Gong practice, he had been persecuted, harassed and tortured by the Chinese authorities, his business confiscated and he was warned by the police against continuing his Falun Gong practice.
8. In a statement to the delegate dated 15 August 2002 the applicant alleged that:
   1. in 1993 he opened a food factory in Heilongjiang province. There were many hardships involved, particularly because of government corruption, and the applicant sometimes became tired and exhausted and sometimes felt despair;
   2. he turned to Falun Gong in 1997 for spiritual support and it became his destination in life. As a small business owner, he sometimes provided financial support to Falun Gong activities;
   100. on 22 January 1999 the police came to his factory and took him to the local station where he was charged with “involving in Falun Gong, inciting social unrest and financially supporting Falun Gong”. When the head of the police asked him for money the applicant did not respond and he was beaten as a result. His wife paid 20,000RMB for his temporary release on the condition that he report daily;
   4. thereafter, the police would often come to his factory and ask for anything they desired, from food products to money. Sometimes they harassed his wife. If the applicant got angry and quarrelled with them, they beat him. He thought about selling his business and moving to another part of Heilongjiang but nobody dared to buy it;
   5. he tried to go to South Korea once but found that he could not seek help there;
   6. the authorities confiscated his business when they discovered that he could flee. His only source of income was then gone;
   7. in early May 2002 a friend told him that he could apply for protection in Australia. He paid his life savings of 100,000RMB to the friend to make the arrangements; and
   8. if he returns to China the authorities will force him to renounce Falun Gong and undergo re-education.

Tribunal as constituted on the first, second and third occasions

9. The applicant attended a hearing before the Tribunal as first constituted on 1 October 2003 and repeated the claims made in his statement of 15 August 2002.
10. On 23 November 2006 he appeared before the Tribunal as constituted on the second occasion at which point:
    1. he provided a number of declarations from Falun Gong practitioners all confirming that he had engaged in the practice of Falun Gong in Australia;
    2. he provided a number of photographs depicting him practising Falun Gong and attending Falun Gong activities in Australia; and
    100. he claimed that, after his release from detention in 2000, he moved to Shenyang where he stayed for about a year. Nothing happened to him during this period because the authorities could not find him, however, they continued to make trouble at his factory.
11. On 2 October 2007 the applicant attended a hearing before the Tribunal as constituted on the third occasion and made the following additional claims:
    1. his family could not accompany him to Shenyang despite the harassment they received because his children could not attend school there;
    2. he travelled to Korea with the intention of seeking protection and also had hopes that it would assist him in getting an Australian visa. He later stated that he did not attempt to seek asylum in Korea because:
       1. he did not know any Falun Gong practitioners there;
       2. he had not thought about it much before he travelled;
       3. he spoke to a fellow tourist who told him that it was hard to get asylum in Korea; and
       4. the only reason for his trip to Korea was to enhance his chances of obtaining an Australian visa;
    100. the authorities were unaware of his travel to Korea but knew when he returned and a friend who worked for the PSB told him that they wanted to arrest him;
    4. he has been involved in eight to ten demonstrations in Australia and has held a banner and shouted slogans; and
    5. he practises Falun Gong every two weeks with other practitioners.

Fourthly constituted Tribunal

12. The applicant provided the following written submissions in response to the Tribunal’s invitation to comment on information:
    1. he was nervous and apprehensive during the first hearing and this affected his ability to answer questions relating to his knowledge of Falun Gong. Further, he could not speak English, was hindered in providing such evidence and was scared that the Chinese government would find out that he had applied for protection;
    2. he was able to obtain his passport and travel to South Korea with the assistance of bribes arranged through a relative employed in the police services in China;
    100. he initially travelled to South Korea to seek protection but was advised by the ethnic Chinese whom he met there that the South Korean government was not accepting protection claims from Chinese nationals. He understood that any attempts to seek protection might be made known to the Chinese authorities; and
    4. the applicant’s relative, who is a senior police officer in Shenyang, was able to shield his name temporarily from lists of people of concern and thus the applicant did not come to the attention of the authorities.
13. On 15 October 2008 the applicant appeared before the Tribunal as constituted on the fourth occasion and made the following additional claims:
    1. his family moved to a different village a few years ago and his children are able to study there because he is paying extra;
    2. he has attended Falun Gong meetings in Australia and has taken part in a demonstration regarding CCP membership. He also practises Falun Gong at home two to three times a week;
    100. he had difficulties explaining some of the principles of Falun Gong at the first Tribunal hearing because when he first arrived in Australia he could not speak English and was in fear. Further, he is not an articulate person and might not be able to express himself clearly;
    4. he donated a lot of money to the Falun Gong organisation while in China but does not provide financial support at present because his business has only recently picked up and nobody has approached him for donations;
    5. he studied Zhuan Falun both on his own and with others. Even so, there is no way that he could have a deep understanding of Falun Gong as it is a comprehensive subject that requires lifelong study;
    6. he has not attended any formal study sessions in Australia because he is tied up and needs to make a living;
    7. he approached the Chinese consulate because the department required that he extend his passport;
    8. the applicant’s cousin, who occupies a medium to senior position in the PSB, helped him to obtain a passport, provided him with temporary protection and directed him to South Korea. The applicant did not mention this relative in his protection visa application because he did not want to put him at risk;
    9. when he arrived in South Korea he saw that it was unworkable and so returned to China. He said that a local Chinese person in Korea told him that he could not apply for protection there and that is why he came back to China;
    10. his business was confiscated some time after his arrival in Australia though he cannot recall when this was;
    11. he was charged as a Falun Gong practitioner and as an anti-government activist but was not sentenced because he paid 20,000RMB to the authorities;
    50. if he returns to China he will teach people about the virtues and beliefs of Falun Gong;
    13. he has openly disclosed himself as being in opposition to the government’s repression of Falun Gong and may therefore be persecuted for his activities in Australia; and
    14. he is not a Christian but has attended church in Australia for cultural curiosity and he may do so in China for the same reason.

The Tribunal’s decision and reasons

14. 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:
    1. the applicant did not provide a satisfactory explanation about why his family could not leave their hometown to avoid harassment and his evidence about this varied in response to the Tribunal’s questions;
    2. the applicant had difficulties naming the five Falun Gong exercises during the first hearing and the reasons he gave for this were rejected by the Tribunal, which noted that:
       1. he gave evidence through an interpreter and did not indicate at any time that he had difficulty understanding the interpreter or expressing himself through the interpreter, such that his limited English could have affected his ability to give evidence;
       2. while he may have been fearful and/or unfamiliar with the process, the Tribunal did not accept that these matters would have affected his ability to name the five exercises while at the same time not affecting his ability to speak of persecution in China;
       3. the transcript of the first Tribunal hearing did not indicate that the applicant was prevented from naming the exercises; and
       4. the applicant did not have to be articulate in order to name the exercises and the fact that he was unable to do so indicated that he did not engage in the practice of Falun Gong or other related activities while in China;
    100. the applicant’s limited knowledge about the teachings of Master Li indicated to the Tribunal a lack of interest in such matters, particularly given his claim to have studied Zhuan Falun. Also, given the ready availability of Falun Gong publications, the Tribunal did not accept that such knowledge could only be acquired through lifelong studies;
    4. the Tribunal was not satisfied that the applicant had been truthful in his explanation about how he was able to evade the authorities in Shenyang, having initially stated in an earlier hearing that the authorities could not locate him because of the size of the population there, and then having later stated before the current Tribunal that he had had assistance from a relative. Consequently, the Tribunal was not satisfied that the applicant attempted to evade the authorities in Shenyang or that he was of any interest to them at the time of his residence there;
    5. country information indicated that certain classes of dissidents, including Falun Gong practitioners, might find it difficult to obtain a passport yet the applicant was issued a passport in November 2001 and was able to travel to South Korea and Australia on that passport despite claiming that the authorities had been looking for him for a substantial period prior to its issue. The applicant’s explanation when questioned about this was vague and unconvincing;
    6. the applicant informed the Tribunal as constituted on the fourth occasion that his business was confiscated after he came to Australia but stated at an earlier Tribunal hearing that this occurred after he returned from South Korea. Given its significance, the Tribunal expected the applicant to have a better memory of the event despite the passage of time and on this basis did not accept that his business was confiscated by the authorities because of his involvement with Falun Gong;
    7. given these findings, the Tribunal concluded that the applicant had been untruthful in his evidence concerning the events in China. Specifically, the Tribunal did not accept that the applicant engaged in the practice of Falun Gong, provided financial support to the organisation, associated with other practitioners or was otherwise involved with Falun Gong activities. Accordingly, the Tribunal did not accept that the applicant suffered any persecution as a result of his alleged involvement with Falun Gong;
    8. the Tribunal accepted that the applicant had engaged in the practice of Falun Gong and related activities while in Australia and that he might also be perceived by other practitioners as a Falun Gong practitioner. However, in light of its finding that the applicant did not have any involvement with Falun Gong in China and that he was not a credible witness, the Tribunal was not satisfied that he had engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregarded this activity pursuant to s.91R(3) of the Migration Act 1958 (“Act”);
    9. while the Tribunal accepted that the applicant had approached the Chinese Consulate and may have been required to show his passport to consulate officials, it was not satisfied that his conduct in Australia was known to the Chinese authorities. In this respect, the Tribunal noted that the applicant’s passport did not identify him as an asylum seeker nor did it indicate in any way that he had engaged in activities in Australia that might be perceived by the Chinese authorities to be of such a nature as to give rise to persecution;
    10. the Tribunal found that the photographs of the applicant published in the Epoch Times and the Epoch Times’s website were unlikely to come to the attention of the Chinese authorities and the chances of the applicant coming to their attention thereby were remote. In this respect, the Tribunal noted that:
        1. the photographs depicted the applicant among a number of other demonstrators;
        2. significantly, the extract from the Epoch Times was more than two years old and there was no accompanying information that would identify him;
        3. the internet publication reproducing the same photograph contained text but also did not identify the applicant; and
        4. the Epoch Times’s website contained numerous photographs of similar demonstrations and activities and would probably have reproduced many more over the past two years;

As such, the Tribunal was not satisfied that the publication of these photographs would result in sufficient public scrutiny of the applicant in particular, such that he would be identified and brought to the attention of the authorities and might be imputed to be a Falun Gong practitioner. The Tribunal made this finding having also considered the applicant’s attendance at the Chinese Consulate;

11. the Tribunal found that the applicant would not engage in the practice of Falun Gong nor in any related activity were he to return to China now or in the reasonably foreseeable future; and

50. the Tribunal accepted the applicant’s evidence that he was not a Christian and was not concerned about his religious activities in Australia or China and on this basis concluded that there was no real chance that he would be persecuted for reasons of his involvement with Christianity.

Proceedings in this Court

15. The grounds of the amended application were pleaded as follows:
    • (1) The Tribunal was “not satisfied that the applicant had engaged in conduct in Australia ... otherwise than for the purpose of strengthening his claim to be a refugee”. The Tribunal fell into jurisdictional error in making this finding. Specifically, the Tribunal failed to have regard or proper regard to corroborative evidence from witnesses who stated that the applicant was a genuine Falun Gong practitioner.
    • (2) The applicant arrived in Australia on 7 August 2002 and applied for a protection visa on 9 August 2002. The promptness with which the applicant applied for a protection visa is consistent with his claim that he had a genuine and well-founded fear of persecution. The Tribunal failed to take this evidence into account in making its decision.

Failure to consider corroborative evidence

16. The applicant submitted that three statutory declarations submitted to the Tribunal by the applicant, which purportedly supported the genuineness of his Falun Gong beliefs while in Australia, were not properly taken into account by the Tribunal when it had regard to s.91R(3) of the Act and to whether the applicant had engaged in Falun Gong activities otherwise than for the purpose of strengthening his claim to be a refugee. Those statutory declarations are reproduced in the Court Book at pp.71, 100 and 101 and the thrust of each is that the applicant was a genuine adherent of Falun Gong based on the declarants’ acquaintanceship with him in Australia.
17. It was submitted that although the Tribunal did, when undertaking its s.91R(3) considerations, refer to those statements in the following terms:
    • He provided a number of statements from fellow practitioners ... (CB 188)

in truth it failed to consider them. In making this submission, the applicant referred to NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 where it was held that the simple fact that a Tribunal refers to evidence in its decision does not, of itself, show that the Tribunal gave such evidence proper consideration. In that case, it was held that:

... given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to “have regard” to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [58], a “decision-maker may be aware of information without paying any attention to it or giving it any consideration”. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so. (per Madgwick J at 92-93 [212], Conti J agreeing at 96 [229])

18. It was submitted that although, in that case, the delegate had a statutory obligation under ss.54 and 55 of the Act to have regard to all information in an application, an analogous common law obligation was imposed on the Tribunal in this case: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.
19. Reference was also made to the decision of the Full Court of the Federal Court in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 where it was said:
    • ... whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40, where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal’s own comments show, that initial error was not corrected by the Tribunal’s subsequent consideration of the UNP Letter and the UNP Translation. On the contrary, the initial error tainted the later consideration of this evidence and compounded the Tribunal’s error. (at [77])
20. If the Tribunal ignores relevant material which may have a direct bearing on the decision which it must reach, and its exercise of its power is affected as a result, then its decision will be affected by jurisdictional error. However, in this matter it is apparent that the Tribunal did more than merely pay lip service to the existence of the statutory declarations and, in fact, considered their contents. Shortly after the passage quoted above at [17], the Tribunal continued:
    • The Tribunal also accepts that the applicant may be perceived by other practitioners as being a Falun Gong practitioner. (CB 188)

That is to say, the Tribunal had regard to the contents of these statutory declarations.

21. It was also submitted that if the Tribunal were required to take those statutory declarations into account, their corroborative nature could not be dismissed without cogent material justifying such a course: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568. Although the Tribunal noted these references, it went on to explain that it rejected the applicant as a witness of credit and also his claim to have been a bona fide Falun Gong practitioner in Australia. Earlier in its reasons, the Tribunal had found the applicant to have been untruthful in relation to his alleged Falun Gong practices in China. It is apparent that this conclusion poisoned the well and formed a solid foundation for the Tribunal’s rejection of the applicant’s veracity concerning his activities in Australia, notwithstanding that the statutory declarations corroborated the apparent genuineness of his commitment: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per McHugh and Gummow JJ at 70 [49].
22. For these reasons, I conclude that the Tribunal did give adequate consideration to the statutory declarations relied upon by the applicant and that no error is disclosed because it discounted their ostensible corroborative value. For these reasons, I do not find that the Tribunal’s decision to disregard the applicant’s conduct in Australia pursuant to s.91R(3) was effected by jurisdictional error.

Failure to consider promptness of application for protection

23. The second ground of review relates to the inferences which may reasonably be drawn from the promptness or lateness of an alleged refugee’s claim for protection. It was submitted that the fact that the applicant sought protection within two days of his arrival in Australia should have been, but was not, taken into account by the Tribunal as providing an inference supportive of the genuineness of his claim to fear persecution for a Convention reason.
24. The promptness or the lateness of a protection visa application is not a matter which must be considered when the Tribunal undertakes the exercise of its power. It is only a preliminary fact which may support an inference which would be no more than corroborative of the truthfulness of the claim to fear persecution. It was not submitted that its otherwise non-essential quality was enhanced because the applicant had raised this point with the Tribunal and relied on it in support of the genuineness of his application. In these circumstances, if the Tribunal did fail to consider this primary fact when reaching conclusions as to the applicant’s credit, such failure did not amount to jurisdictional error.

Conclusion

25. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 11 March 2009