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MIGRATION - RRT decision - applicant claiming North Korean nationality and living illegally in China for 20 years - no error by Tribunal when disbelieving.

SZDKL v Minister for Immigration [2004] FMCA 741 (15 October 2004)

SZDKL v Minister for Immigration [2004] FMCA 741 (15 October 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKL v MINISTER FOR IMMIGRATION
[2004] FMCA 741




MIGRATION - RRT decision - applicant claiming North Korean nationality and living illegally in China for 20 years - no error by Tribunal when disbelieving.




Migration Act 1958 (Cth), s.483A

Applicant:
SZDKL




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1223 of 2004




Delivered on:


15 October 2004




Delivered at:


Sydney




Hearing date:


15 October 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


Applicant in person




Counsel for the Respondent:


Mr Dean Jordan




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $3500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1223 of 2004

SZDKL



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal ("the Tribunal") dated 9 March 2004 and handed down on 30 March 2004. The Court's jurisdiction gives it power only to send a case back to the Refugee Review Tribunal if it is persuaded that the Tribunal's procedures or reasoning shows that it did not lawfully make a decision, and on decisions made by the High Court of Australia I have to be persuaded that it made errors of a serious sort that can be described as jurisdictional errors.

2. The Court does not have power itself to decide whether the person's story should be believed or whether in its opinion the person satisfies the definition of refugee in the Convention. I do not have power to send the case back just because I think the applicant deserves a fresh hearing.

3. The present applicant's application for a protection visa lodged on 11 December 2001 presented real difficulties for a decision-maker. It was presented with the assistance of a migration agent and was accompanied by a closely typed two-page narrative which the Tribunal sufficiently summarised as follows:

The applicant's written claims are as follows.

The applicant claims that he and his family are North Korean citizens. He claims that the family had suffered hardship because his father had been criticised by the North Korean authorities, and that to escape this hardship the applicant and his family had fled across the border into China in 1983 when the applicant had been eight years old.

They had been living there illegally ever since - about 20 years.

One day the Chinese security forces had come looking for the family and had arrested the applicant's father and elder brother; the applicant, his mother and his sister had managed to escape. The three had been given a home in Heilongjiang province by a man who was lonely. After going to Heilongjiang the applicant had found that this man was in a permanent bad temper and drank to excess and took things out on the applicant's mother. The applicant had studied at Mao Er Shan Primary School in Shang Zhi City.

In 1990 the applicant's sister, who was beautiful, had got married to a South Korean and had gone to live in that country. It had been hard to get her out of China and into South Korea because of her illegal status in China.

She had sent the applicant and her mother money, which had enabled them to go and live and work in Beijing, where they could make a better living. They had bought a false Chinese ID card there and, although the applicant could not speak Chinese (Mandarin) very well he had found work.

In 1992, the applicant's mother, who was not in good health, had started practising Falun Gong. Out of curiosity the applicant had become involved in organising Falun Gong activities among people, and they had all worked during the day and practised Falun Gong at night in the factory at which they had been working.

In April 2000 the Chinese police had raided the factory and had detained the applicant, his mother and others for being involved with Falun Gong. They had been beaten up while in detention; all the applicant's teeth had been knocked out because he had refused to speak to his interrogators.

Three months later the applicant and his mother had been freed but had had to live under supervision in a certain area.

One month after that the applicant had escaped to Australia. He had had his teeth "fixed" and had gone to Hong Kong, where he had bought a false South Korean passport, and had then gone to the Philippines and from there to Australia.

The applicant had lost contact with his mother.

He could not return to China as he was not a Chinese citizen. He could not return to North Korea as he had left there illegally and would be sentenced to death for that if he went back there.

4. Although the transcript of the hearing is not before me, the Tribunal gives an account of the hearing at which the applicant attended. It is apparent that the Tribunal put to the applicant various difficulties that it had in believing all of the story put forward by the applicant. In particular, it had difficulty accepting that the applicant had been living in China and involved in all the activities that he said he had been involved in in China, while being all that time an illegal person in China and a North Korean national.

5. In the course of this discussion by the Tribunal it said the following about the applicant's claim concerning his teeth:

It was put to the applicant that his claim of having had all his teeth knocked out while in detention and false teeth put in afterwards was dubious. Following the hearing, the applicant submitted a certificate from a dentist in Sydney stating that an X-ray of his teeth had shown that at some time in the past he had had crown work done on his front teeth and some other teeth. The X-ray photograph was submitted.

6. In the Tribunal's reasons under the heading "Findings and Reasons", the Tribunal explains various reasons why it was not satisfied as to the credibility of the applicant's claims that he lived illegally in China for the past 20 years and lacked Chinese citizenship during that period. It is not necessary for me to set out the whole of the Tribunal's reasoning, but it led the Tribunal to make a critical finding in the following terms:

The above findings go to the issue of the applicant's identity, and because of them I am not satisfied that the applicant is not a Chinese citizen and that his Chinese ID card was false. I consider that he is a Chinese citizen who lived legally in China and has fabricated claims of North Korean nationality.

7. The Tribunal then gave further explanations for its findings and also for concluding that the applicant's Falun Gong claims were implausible in themselves. The conclusion of its reasoning is as follows:

I accept, from the medical evidence before me, that the applicant has had a substantial amount of dental work. Given the lack of credibility in the applicant's evidence, including in his claims of having been detained and tortured, I am not satisfied that the dental work is the consequence of having been detained and tortured. I am of the firm opinion that the dental work is the consequence of ordinary dental problems and needs and is not linked causally to a Convention ground.

In all, I am not satisfied that there is credibility in the applicant's claims regarding Falun Gong. I am of the opinion that he has fabricated the claims of involvement with the movement, and of having been arrested and detained, in order to boost his claims and provide a basis for his claim that China was too dangerous a place for him.

Since I am not satisfied that the applicant is what he claims to be - North Korean - or that he has suffered Convention-based harm in China I am not satisfied that he has a well-founded fear of persecution in terms of the Convention in China.

I am of the opinion that he is a Chinese national of Korean ethnicity - there are strong and legal ethnic Korean enclaves in some Chinese provinces - who has falsely used a South Korean passport to enter Australia. As I am not satisfied that he has a well-founded fear of persecution in China I find that he can return there and live safely. If he has broken Chinese laws in using false documents I consider that he might face punishment for this in China. This would not be persecution but prosecution under Chinese law for a criminal offence. I am not satisfied that he would be imputed with a Convention-based motive for his behaviour and persecuted for it.

If the applicant is a South Korean national who has used his own passport to come here and is falsely claiming a North Korean nationality to support a protection visa application I find that he can live safely in South Korea since he has made no claims against that country. In either case, if he has problems with his travel documentation, I consider that he would be given assistance by the Department, and I am not satisfied that any problems he might face in this regard would be Convention-related.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

8. I have considered the Tribunal's reasoning and, in my view, it sufficiently shows the Tribunal addressing the applicant's claims for refugee status. I am unable to find an error of law and certainly not a jurisdictional error in its reasoning.

9. The application filed in this Court made the following complaint:

2. The Tribunal officer did not consider my application carefully, she had bias against me. She even said that all my teeth were real in her eyes when it was not true. She changed her saying after I submitted the evidence about my teeth. However, when I could not submit some other evidence, she continued to use the same way to judge what I mentioned at my application was not true. The way she used was totally wrong. Just because she had bias against me. At the hearing she even said that "to me all your teeth are real". She even made a decision to my application before I lodged the evidence about my teeth, she then sent us a letter saying that she stopped the decision since we had lodged the evidence about my teeth, then she made another decision, the only difference was the teeth, nothing else.

10. In an amended application filed in this Court the applicant said:

The Tribunal did not consider my application carefully. They did not believe that I studied in primary school in China for three years. They did not believe the process of how I bought the passport. I told them my Chinese I.D. card had been already obtained by the people who did the process for me for custom purpose; they did not believe that I could not carry it with me when I came. At the beginning, I did not know people like me could apply for protection visa. They did not believe that I was detained for three months in China and finally escaped. My tooth were beaten away by the police, the officer did not believe it and I had to submit the report from doctor eventually. When I was working in China, the factory in China was where we practiced Falun Gong. It was sealed up by the Police finally. The address was No. 64 Shi Chang Zhong Road, Ba Li Qiao, Tong Zhou Ou, Beijing.

I believe that the officer made jurisdiction mistakes when considering my application; he had bias against me when considering my application. I believe that he had bias against me and there are no evidences or materials to support his above conclusion.

11. In short, I understand the applicant to be submitting that bias was shown due to the Tribunal's erroneous refusal to accept the applicant's narrative and, in particular, to accept that it was fully corroborated by the dental report. I have set out above the Tribunal's account of the hearing in relation to the dental claim and its finding concerning it. It is apparent that the Tribunal gave full consideration to the dental report and reconsidered a provisional view apparently put to the applicant in the course of the hearing. I am unable to be persuaded on the material before me that a failure of procedural fairness occurred and, in my opinion, its reasoning about the evidence from the dental report does not reveal jurisdictional error affecting its ultimate conclusions.

12. On the material submitted there was still a real question for the Tribunal as to what might have caused the need for the dental treatment and it was open to the Tribunal not to be persuaded that it was caused by injuries inflicted by the Chinese security authorities. It is not part of my role to form my own conclusion about that matter.

13. The applicant attended today with the assistance of an interpreter but had not prepared submissions to put to me apart from asking me to consider the points he made in his application. In reply to the Minister's submissions he made points which I have either dealt with above, or which sought to argue with the factual conclusions of the Tribunal. I am unable to act on any of his submissions in the way that he seeks.

14. For the above reasons, I dismiss the application.

RECORDED : NOT TRANSCRIBED

15. I order the applicant to pay the respondent's costs in the sum of $3500.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 1 November 2004
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