SZMWZ & Ors v Minister for Immigration & Anor [2009] FMCA 367 (29 April 2009)

Last Updated: 1 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWZ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 367

MIGRATION – Review of RRT decision – applicants citizens of China – where claim of principal applicant based on her practise of Falun Gong in Australia – whether s.91R(3) applies to sur place claims – whether Tribunal had regard to conduct in Australia having determined to disregard it – whether Tribunal took account of an irrelevant consideration.

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

SZJGV v Minister for Immigration [2008] FCAFC 105

First Applicant:

SZMWZ

Second Applicant:

SZMXA

Third Applicant:

SZMXB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2847 of 2008

Judgment of:

Raphael FM

Hearing date:

15 April 2009

Date of Last Submission:

15 April 2009

Delivered at:

Sydney

Delivered on:

29 April 2009

REPRESENTATION

Counsel for the Applicants:

Mr T Ower

Counsel for the First Respondent:

Mr Y Shariff

Solicitors for the First Respondent:

Clayton Utz

ORDERS

(1) Application dismissed.
(2) Applicants to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2847 of 2008

SZMWZ

First Applicant

SZMXA

Second Applicant

SZMXB

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of China. The first and second named applicants arrived in Australia on 7 November 2007 and the third named applicant arrived on 13 February 2008. They applied to the Department of Immigration & Citizenship for protection (Class XA) visas on 27 February 2008. On 14 March 2008 a delegate of the Minister refused to grant protection visas and on 23 April 2008 the applicants applied for a review of that decision from the Refugee Review Tribunal. The Tribunal held two hearings and received information from the applicants in writing. On 30 September 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 9 October 2008. The first named applicant alone made substantive claims for protection and will herein be referred to as the “applicant”.
2. The applicant first entered Australia as the holder of a sub-class 676 tourist (Short Stay) visa on 11 August 2004 and departed on 2 October 2004. She re-entered Australia on 20 June 2005 on a sub-class 457 Business (Long Stay) visa and departed on 8 October 2007. After entering Australia for a third time on 7 November 2007 on a sub-class 457 visa, the applicant submitted a protection visa application in which she described her life in China. She stated that she had owned a restaurant in Dalian city which she had established in 1995. She claimed that between 1995 and 2005 her business had been harassed “financially and mentally” by both national and local government departments including the Tax Office, Public Security and the Health Department. As a result of the chaos and corruption plaguing administration and legal systems in China, she was forced to close the restaurant in 2005.
3. The information regarding the applicant’s business provided background to what later became the applicant’s central claim for protection, that is, her practise of Falun Gong in Australia. The applicant stated that she had started to practise Falun Gong in early 2007. Although she did not practise Falun Gong in China, the applicant indicated that her experiences in business allowed her to sympathise with other groups which had suffered under the Communist government. She cited the physical and mental health benefits associated with Falun Gong as her motivation for taking up the practise and stated that the principles of truthfulness, compassion and tolerance made her feel “more harmonious than before.” She stated that since starting to practise Falun Gong in Australia she had obtained lots of information about the persecution of Falun Gong practitioners in China from other practitioners, the media and the internet. In October 2007 the applicant briefly returned to China and was told by friends and relatives that some of her acquaintances who practised Falun Gong had been arrested, beaten and sentenced. The applicant expressed fear that if she returned to China again she would be identified by the authorities as a Falun Gong practitioner and detained. She felt that she would not be able to deny that she was a Falun Gong practitioner because she did not want to lie.
4. In a response to an invitation to comment on information dated 25 August 2008, the applicant clarified that she did not seek to rely on her business related claims [CB 109]. The Tribunal therefore identified the key issue as whether or not it could be satisfied that the applicant engaged in activities in Australia associated with Falun Gong otherwise than for the purpose of strengthening her claim to be a refugee. If the Tribunal is not so satisfied, s.91R(3) requires that the conduct be disregarded:
   • “(3) For the purposes of the application of this Act and the regulations to a particular person:
     • (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
       • disregard any conduct engaged in by the person in Australia unless:
     • (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
5. While the Tribunal accepted that the applicant had involved herself in Falun Gong from early 2007, there were a number of matters which caused the Tribunal to doubt that her commitment was genuine. First, the Tribunal found the applicant’s knowledge and understanding of Falun Gong to be superficial. This finding was based on the Tribunal’s questioning in relation to a rally attended by the applicant in December 2007.
   • “Her statement of 22 April 2008 indicated that the rally in December 2007 related to the withdrawal of 30 million people from the Chinese Communist Party. In her oral evidence, Xiaofeng Huang [the applicant’s migration agent] was also able to indicate that the rally was about encouraging people to leave the Chinese Communist Party. However, at the hearing of 2 July 2008 the applicant was unable to provide the Tribunal with any clear indication as to what the rally was about, saying that she had not been involved in Falun Gong for long and that the other practitioners did not tell her. The applicant claimed to have been engaging in Falun Gong activities since January 2007. If she had been attending the rally due to her genuine commitment to Falun Gong, the Tribunal considers that she should have been in position to readily identify with the issue to which the rally related.”
6. Second, the Tribunal did not accept the applicant’s evidence as to the health benefits she claimed to have derived from Falun Gong. This finding related to the applicant’s claim that she had suffered neck pain for four or five years prior to her practise of Falun Gong and that this pain had disappeared once she began to practise the exercises. The Tribunal did not accept this evidence on the basis that the applicant had not mentioned this medical condition when examined for the purposes of her visa application:
   • “[the applicant] completed a form which asked whether she had any pain in the neck, back or any joint. She responded in the negative to this question. It was not until the Tribunal asked the applicant whether she had mentioned her neck ailment for the purposes of the medical examination that the applicant stated that the neck problem was not very serious. In her recent written response she stated that she only regarded certain afflictions as illnesses and that these did not include a sore neck. She referred to a Chinese saying, “toothache is not sick.” However, the Tribunal does not consider this a convincing explanation for her failure to mention neck pain if it had lasted a number of years and led her to receive medication and treatment... The Tribunal does not accept that the applicant has had neck pain as claimed. It does not accept her evidence as to the health benefits she claims to have derived from Falun Gong. Her willingness to give evidence about such benefits calls into question her reliability as a witness, in particular with regard to her experience and practise of Falun Gong.” [CB 158]
7. Finally, the Tribunal considered the applicant’s return to China in late 2007 to be at odds with her claim that she has a genuine commitment to Falun Gong:
   • “The Tribunal finds the applicant’s willingness to return to China, where Falun Gong practitioners are at risk of persecution, to be at odds with her claim to be a genuine and committed Falun Gong practitioner. The applicant has claimed that her mother was ill at the time. It notes that, in her statement of 25 August 2008, Xiaofeng Huang also referred to the applicant’s visit to China and to the applicant’s mother’s illness. However, when first asked by the Tribunal whether there had been any particular reason she had to visit her mother at the relevant time, the applicant replied that it had been about two years since she had seen her mother, that she missed her mother and that she had gone back to visit relatives and friends. It was not until the Tribunal expressed surprise that the applicant would return to China if she had a genuine fear of persecution there that the applicant stated that her mother had not been very well.” [CB 159]
8. At [72] [CB 160] the Tribunal summarised its findings in relation to the applicant’s conduct in Australia:
   • “...having considered all the available evidence and having weighed it in light of the witness evidence and the applicant’s own evidence as to the reason for her involvement in Falun Gong activities, the Tribunal is not satisfied that the applicant has engaged in Falun Gong activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee. The Tribunal does not accept the applicant’s evidence as to the health benefits she claims to have derived from Falun Gong. Her willingness to give evidence about such benefits calls into question her reliability as a witness, in particular with regard to her experience and practice of Falun Gong. This is a matter which might not have been decisive in itself. However, as discussed above, the Tribunal has also found that the discussion of the rally in December in 2007 reflected a very superficial understanding by the applicant of the events in which she involved herself and a lack of genuine engagement with those events. It finds that this points towards a desire to engage in activities for the purpose of using them to advance her refugee claims rather than because of a genuine commitment to Falun Gong. For reasons discussed above, the Tribunal has formed a negative impression of the applicant’s overall credibility. Further, the [Tribunal] considers the applicant’s return to China in late 2007 to be at odds with her claim that she has been involving herself in Falun Gong activities because she has a genuine commitment to Falun Gong. Having carefully considered all the evidence, it is not satisfied that he has ever developed such a commitment.”

In considering whether the applicant had a well-founded fear of being persecuted, the Tribunal determined to disregard the applicant’s involvement with Falun Gong in Australia.

9. In ground one of the applicant’s submissions, the applicant contends that s.91R(3) has no application in a case, such as the instant case, where the entirety of an applicant’s claim is based upon conduct in Australia. It is submitted that, as a matter of statutory interpretation, the use of the word “strengthening” presupposes that an applicant’s claim is already on foot and that there is some conduct or experience outside Australia on which the claim is also based. In effect, the applicant seeks to deny the application of s.91R(3) to sur place claims.
10. In SZJGV v Minister for Immigration [2008] FCAFC 105, the Full Bench referred to the Explanatory Memorandum which accompanied the Bill for the amending act which introduced s.91R(3). The new provision is explained as follows:
    • “25. New subsection 91R(3) applies to sur place claims. It is generally accepted that a person can acquire refugee status sur place where, as a consequence of events that have happened since he or she left his or her country of origin, he or she has a well-founded fear of persecution upon return to that country. Difficulties have arisen in cases when Australian courts have found that a person may act while in Australia with the specific intention of establishing or strengthening their protection claims and this intention cannot be taken into account in assessing the existence of protection obligations under the Refugees Convention.”
11. The Explanatory Memorandum makes it clear that the section was intended to deal with the making of sur place claims and therefore applies irrespective of whether an applicant makes other claims for persecution. The Full Bench in SZJGV accepted this to be uncontroversial, noting further that “although the Explanatory Memorandum and the second reading speech both indicate that s.91R(3) was introduced to deal with sur place claims, it is not, in terms, so confined.” [10] The applicant in the instant case accepted that this reflected the current state of the law but wished to reserve his right to contest the point.
12. As an alternative to the first point in ground one, it is submitted that if s.91R(3) does apply to conduct in Australia which is the sole basis for the claim for protection, the Tribunal breached the section by having regard to that conduct when assessing whether the applicant faced a real chance of persecution. The relevant passage of the Tribunal’s decision is found at [174] [CB 161]:
    • “The applicant has indicated that she has never practised Falun Gong in China. It may be that the applicant spoke to her family in China about Falun Gong and that they told her about the persecution of a number of Falun Gong adherents. However, the Tribunal is not satisfied on this basis that the applicant is a genuine Falun Gong adherent who would wish to practise Falun Gong in China. In determining whether the applicant has a well-founded fear of persecution in China for any Convention reason, the Tribunal is required to disregard the applicant’s involvement in Falun Gong activities in Australia. On the remaining evidence, it is not satisfied that she is a genuine and committed Falun Gong practitioner who would wish to practise Falun Gong on return to China or otherwise involve herself in activities associated with Falun Gong.”
13. In Court it was submitted that, although not explicit in the decision and despite the clear disavowal, the Tribunal relied on its finding that the applicant’s practise of Falun Gong in Australia was not genuine in order to conclude that the applicant was not a “genuine and committed Falun Gong practitioner who would wish to practise Falun Gong on return to China”. This submission was no doubt enabled by the fact that there were no other substantial claims made. Nevertheless, it is not at all self-evident that the Tribunal relied on the applicant’s conduct in Australia, as opposed to the absence of any further claim, to assess whether she faced a real chance of persecution if returned to China.
14. The applicant relies on SZJGV. The Full Bench in that case found that in each of the three appeals before it the Tribunal had disavowed reliance on the applicants’ conduct in Australia but subsequently had regard to it in order to undermine the credibility of the applicants’ other claims. In one case, the Tribunal, having determined that it would disregard the Falun Gong related activities in Australia, went on to reject the [applicant’s] claim that he had been a Falun Gong practitioner in China for reasons which included the applicant’s “recent attempts to construct a profile of a Falun Gong practitioner for himself [in Australia]” [3]. In another, the Tribunal said that the disingenuous nature of the appellant’s contact with Falun Gong movements in Australia was one of its reasons for concluding that he would not have any significant involvement with Falun Gong on his return to China:
    • “The Tribunal thus brought into account, to the appellant’s detriment, his conduct in Australia when determining whether he had a well-founded fear of persecution should he return to China. The Tribunal thereby contravened s.91R(3). In doing so it made a jurisdictional error.” [28]
15. In these appeals, each Tribunal determined to disregard the conduct in Australia pursuant to s.91R(3) and in each case, explicit reference was made to that conduct in determining whether the applicants had a well-founded fear of persecution. This is not the case here. There is nothing explicit in the Tribunal’s decision which shows that it had regard to the applicant’s practise of Falun Gong in Australia and her motives for that practise in finding that the applicant did not face a real chance of persecution. There is also no basis for finding that the Tribunal implicitly had regard to the applicant’s conduct in Australia. This is because the Tribunal was entitled to come to the conclusion that it did on the basis of the little “remaining evidence” there was. This included the fact that the applicant had never practised Falun Gong in China. Given that past conduct is a guide to future conduct, it was this evidence which was the real basis for the Tribunal’s finding that the applicant did not face a real chance of persecution in China. There is no basis for finding that the Tribunal had regard to the applicant’s conduct in Australia when it determined that she was not a refugee.
16. In ground two of the applicant’s written submissions it is said that the Tribunal erred in addressing the applicant’s business related activities in China after reliance on those matters was disavowed:
    • “Leaving the obvious unfairness of this approach to one side, the RRT deflected its attention to this irrelevant issue and therefore, did not properly address the claim that was being made. It is impossible to gauge how damaging the RRT’s credit finding on this non-issue was to its assessment of the Applicant’s credit in relation to the actual claim.”

The Tribunal addressed the applicant’s business related claims at [152] [CB 156]. Although it noted that the applicant had effectively disavowed any reliance on these matters, it considered that these matters must be addressed. This was especially so since the applicant had suggested that her experience as a businesswoman provided a basis for her discontent with the Chinese authorities and a reason for sympathising with the plight of Falun Gong practitioners. On these matters the Tribunal had this to say:

“As noted above, in spite of the applicant’s claims about government corruption and other problems in China, she and her husband have four business premises there from which she derives rent. The Tribunal does not accept as credible the applicant’s suggestion that she felt hopeless under the Chinese government or suffered a lot as a Chinese businesswoman. Indeed, this view is reinforced by other aspects of the applicant’s evidence at the hearing. She stated, for instance, that she had not come overseas because of pressure from the government. She had just wanted to go abroad and have a look. She also stated that her main purpose in obtaining a subclass 457 visa to come to Australia was to work and do business. She stated that she knew Australia was a tourist destination and that there were good business opportunities. The Tribunal is of the view that it was these factors, rather than any concerns about the Chinese system or human rights or a genuine belief that everyone lived in fear, that led the applicant to leave China.”

17. It should be noted that the applicant did not abandon her claim to have suffered business related persecution until she made a written statement on 25 August 2008 [CB 109]. By that time, the Tribunal had already conducted two hearings without there being any disavowal of that claim by the applicant. The suggestion that the Tribunal took account of an irrelevant consideration is therefore unfounded. Had the applicant’s business-related claims been accepted they had the potential to support a finding that the applicant had a well-founded fear of persecution. Moreover, there is no authority to suggest that a Tribunal must disregard a claim that has been abandoned. If the Tribunal were obliged to disregard all abandoned claims, its ability to make credibility findings would be heavily curtailed. This is particularly so in a case, such as the instant case, where a claim is abandoned upon notice from the Tribunal that an adverse credibility finding is likely.
18. There was one other ground which the applicant relied on but did not vigorously pursue at hearing. It related to the medical questionnaire in which the applicant had indicated that she had not suffered any neck pain. The applicant argued that this was “de minimis” information and not a reasonable basis for rejecting the applicant’s claim. It hardly needs restating that the weight to be given to such evidence is entirely a matter for the Tribunal. To suggest otherwise is to invite impermissible merits review. The applicant’s submission that the Tribunal did not address her explanation of the omission provided in written responses must also be rejected. The Tribunal clearly addressed these responses as can be seen from the paragraph of the Tribunal’s reasoning extracted at [6] above.
19. In light of these findings, I am unable to accept the applicants’ submissions. I dismiss the application and order that the applicants pay the respondents costs which I assess in the sum of $5,000.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 29 April 2009