SZEIE v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE APPEAL 1 This is an appeal from a judgment of the Federal Magistrates Court given on 13 April 2005. The learned Magistrate dismissed an application for judicial review of a decision of the RRT handed down on 4 August 2004. The RRT had affirmed a decision of a delegate of the respondent ('the Minister') to refuse to grant the appellants protection visas. 2 The appellants are a married couple and their son. They are citizens of the People's Republic of China ('PRC'). The appellants arrived in Australia on 31 August 1998 on temporary business visas. Some five and half years later, on 13 April 2004, they lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 20 April 2004, the delegate refused to grant the appellants protection visas. They subsequently sought review of this decision by the RRT but, as I have noted, it affirmed the delegate's decision and the subsequent application for judicial review was dismissed. Only one of the appellants (the husband) made specific claims under the Convention relating to the Status of Refugees ('the Convention'). I shall refer to him as 'the appellant'. 3 The notice of appeal asserts that the Magistrates Court erred by not finding that the RRT had failed to comply with its obligations under: (i) s 424A of the Migration Act 1958 (Cth) ('Migration Act'); and (ii) s 425 of the Migration Act. 4 The appellant contends that the RRT did not give him 'particulars of the negative information against [his] claims', but he does not specify the 'negative information' to which he refers. The appellant also says that although the RRT allowed him to appear before it (as s 425 requires), it did not permit him to give complete evidence or to present full arguments. Neither the notice of appeal nor the appellant's written submissions explain the manner in which the RRT is said to have breached its obligations, beyond asserting that the RRT failed to consider the independent country information before it. 5 The appellant's oral submissions did not add anything to his amended notice of appeal. However, the appellant produced at the hearing of the appeal and sought to tender the tape of the proceedings before the RRT. He did so, as I understood his position, in order to support his contention that the RRT did not afford him an opportunity to give complete evidence or to present full argument. Since the notice of appeal includes an unparticularised ground that the Magistrates Court should have found that the RRT denied the appellant procedural fairness, the tape may also have been tendered in support of that ground. THE APPELLANT'S FACTUAL CLAIMS 6 The appellant claimed that his brother worked for the National Security Bureau ('NSB') in the PRC. He said that his brother and other NSB officers attempted to persuade him to provide information that he could obtain from his business dealings, particularly during his overseas travels. He was asked specifically to obtain information about people who had 'fled' from Hong Kong to Australia before Hong Kong was returned to the PRC in 1997. He was also asked to report on Falun Gong practitioners in Australia. The appellant claimed that he declined this request and was told that he might not be permitted to travel for business purposes in the future. He claimed that he was placed under 'mental and psychological pressure'. 7 The appellant further claimed that he had become involved with Falun Gong from early 2001 and that the practice of Falun Gong had become an important part of his life. In September 2002, he had returned to his home town in the PRC to visit relatives. His brother and NSB officers had invited him to dinner on several occasions during this visit. One week prior to the appellant leaving the PRC on this occasion, NSB officers told him that they knew what he had done overseas, especially his involvement with Falun Gong. In order to receive permission to leave the PRC, he agreed to work for the authorities collecting information about Falun Gong practitioners in Sydney. He was warned that both he and his brother would be in big trouble if they dared to betray the NSB. 8 The appellant said that he had not in fact assisted the NSB with information while in Australia. He said that he had been threatened over the telephone but that he had informed the NSB in writing that he was not prepared to assist them. He had also warned the NSB that he would openly expose to the media everything the NSB had done to Falun Gong practitioners. The appellant claimed that he would be subject to arrest and detention by reason of his Falun Gong practice. He also feared that he would be mistreated by the NSB because he would be regarded as having betrayed the PRC authorities. 9 At the hearing before RRT, the appellant was asked why he had not obtained in Australia the information sought by the NSB. He replied that the persons who were of interest to the NSB only spoke Cantonese, while he only spoke Mandarin. The RRT put to the appellant that it did not seem plausible that the NSB would have requested that he obtain information from Cantonese speaking persons if the officers were aware that he could not speak Cantonese. The appellant then claimed that there were also some Mandarin-speaking persons from the PRC and from Taiwan in whom the NSB was interested. However, when asked who those persons were, the appellant was unable to identify them. 10 The appellant said that the NSB sent an officer to Australia to ascertain his whereabouts in 2000 and again in 2001. When he was located by the NSB, he was asked to explain his failure to report and 'threatened' that if he did not provide the required information he would be harmed. 11 Notwithstanding the appellant's claimed fear of harm by the NSB, he returned to the PRC in October 1998, September 2000 and September 2002. He claimed that on the third occasion he had been approached by a 'senior official' within the NSB who inquired why he had not provided any of the promised information. THE RRT's REASONS 12 The RRT did not consider it plausible that the NSB would have requested the appellant to obtain information from Cantonese speaking persons residing in Australia if he himself was unable to speak Cantonese. It thought that the NSB would have confirmed his ability to speak Cantonese if he was in fact required to obtain information from Cantonese speaking people. For that reason, the RRT did not accept that the NSB had asked the appellant to obtain information about Cantonese speaking persons. Moreover, given the appellant's lack of political activities in Australia or elsewhere and the fact that he had not been given any training and had not been told what information to obtain, the RRT did not accept that the NSB had asked him to obtain information about people from Hong Kong, the PRC or Taiwan, as he had claimed. 13 The RRT recorded the appellant's claim that the NSB had asked him to provide information about the practice of Falun Gong in Australia. The RRT pointed out that it had put to the appellant country information indicating that Falun Gong had not been made illegal in the PRC until 1999. In consequence, the appellant had resiled from this claim and the RRT did not accept that he had been asked to obtain information about the practice of Falun Gong in Australia in 1998, as he had claimed. 14 The RRT, on the basis of these findings, did not accept the appellant as a witness of truth. Accordingly, it did not accept that he had been threatened by a senior NSB official when he returned to the PRC in September 2002. Nor did the RRT accept the appellant's claim that he had pretended to co-operate with the NSB when he returned to the PRC in 2002. Given that the appellant had claimed not to have voluntarily contacted the NSB since August 1998, he would not have been able to feign co-operation in the way he suggested. The RRT did not accept that the appellant had been approached by, or had any contact with, the NSB. 15 The RRT noted that the appellant had been very vague about his practice of Falun Gong, except that he had provided evidence that he had practised Falun Gong in the four months leading up to the RRT's hearing. The RRT was not satisfied, however, that the appellant had been fearful of the NSB by reason of his adherence to Falun Gong or for any other reason. 16 The RRT gave these reasons for its conclusion: 'I do not accept he would have returned to PRC inter alia to conduct business in September 2002, if he had any fear of the NSB at that time as he claimed. Secondly, I am not satisfied he would have willingly sought employment in Australia [by way of a 457 Business (Long Stay)] Visa] till March 2004, if this may have necessitated him returning periodically to the PRC, and thus subject him to the risk of harm by the NSB, if he really was fearful of the NSB as he claimed, arising from his alleged practice of Falun Gong. Further, I am not satisfied he would have willingly sought employment in Australia [by way of a 457 Business (Long stay)] Visa] till March 2004, if this may have otherwise necessitated him 'exposing himself to discovery' by the NSB, if he really feared the NSB as claimed. Thirdly, I am not satisfied he would have delayed applying for a Protection Visa till April 2004, if he really was suspected of practising Falun Gong by the NSB as he claimed. As I do not accept the applicant is a witness of truth, I do not accept he is a sincere and genuine Falun Gong practitioner as he claimed.' 17 In any event, on the basis of the country information, the RRT was not satisfied that a person who had been a mere participant in Falun Gong outside the PRC would experience a real chance of persecution on his return to the PRC by reason of that participation. 18 The RRT did not accept that the appellant would be suspected in the PRC of revealing state secrets. Indeed, it did not accept that he had even 'threatened' to go to the Australian media as he had claimed. 19 For these reasons, the RRT was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason should he return to the PRC. Accordingly, it affirmed the decision of the delegate to refuse him a protection visa.