BZACO v Minister for Immigration

[2012] FMCA 1029

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZACO v MINISTER FOR IMMIGRATION & ANOTHER [2012] FMCA 1029

MIGRATION – Appeal from Refugee Review Tribunal – refusal to grant protection visa – no error of law – application dismissed.

Migration Act 1958, s.424

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Applicant: BZACO

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 686 of 2012

Judgment of: Jarrett FM

Hearing date: 26 October 2012

Date of Last Submission: 26 October 2012

Delivered at: Brisbane

Delivered on: 26 October 2012

REPRESENTATION

The Applicant appeared in person assisted by an interpreter.

Solicitor for the First Respondent: Ms G.E O’Connor

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance.

ORDERS

1. The Application filed on 27 July 2012 is dismissed

2. The Applicant pay the first respondent’s cost of and incidental to the application fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 686 of 2012

BZACO

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

REFUGEE REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. The applicant is a citizen of the People’s Republic of China.  She arrived in Australia on 22 May, 2011 on a temporary business class UC subclass 456 visa.  She made an application for a protection class XA visa on 18 August, 2011.  The applicant was invited to attend a Departmental interview, but did not respond to the invitation or attend the interview. 

2. On 17 October, 2011 a delegate of the Minister decided to refuse the grant of a protection visa to the applicant. 

3. On 18 November, 2011 the applicant lodged an application for review with the Refugee Review Tribunal. 

4. On 24 February, 2012, the applicant was invited to attend before the tribunal on 11 April, 2012 to give evidence and present her arguments. 

5. The applicant attended a hearing before the tribunal on 11 April, 2012 and on 26 June, 2012 the tribunal decided to affirm the decision not to grant the applicant a protection visa. 

6. The applicant commenced these proceedings on 27 July, 2012.  In her application she specifies the grounds of her application as follows:

   a)the second respondent failed to comply with section 424 of the Migration Act 1958; and

   b)the second respondent failed to advise the applicant that she could seek additional time to comment on or respond to the information.

7. There is some inconsistency between those two grounds. 

8. By an amended application filed on 11 October, 2012 the applicant added to the grounds of her application.  She says this:

   (1) in the paragraph 86 of the decision letter, the tribunal member did not accept that I am a genuine Falun Gong practitioner just because my knowledge of Falun Gong is superficial.  The tribunal member did not ask me the reason I was detained in a detention centre for four months.  I was tortured terribly there which caused me brain damage.  I was very scared of even talking about Falun Gong.  In the paragraph 89 of the decision letter, RRT accepted that I have some knowledge about Falun Gong.  On the other hand, Chinese government tortures and prosecutes all Falun Gong practitioners and their supporters without considering how long and how well they practiced Falun Gong. 

   (2) in the paragraph 87 and 88 of the decision letter, RRT mentioned my ability to exit and re-enter China and I left China this time.  RRT concluded that I was of no interest to the PRC.  RRT makes an illogical conclusion that Chinese government will not prosecute me further, but, in fact, the answer is no.  For example, we all know about student movement of 1989, unarmed students and supporters were suppressed by a Chinese government with troops, tanks and machine guns.  Many people fled overseas to seek protection.  At that time, the Australian government granted protection visas to these people.  These students and their supporters left China with various ways, many of them China in the way same as I did.

   (faithfully reproduced)

9. To successfully review a decision of the Refugee Review Tribunal, the applicant must establish that the tribunal fell into jurisdictional error.  The concept of jurisdictional error is difficult to define, but one usually has regard to three cases as containing the best description of jurisdictional error.  They are Craig v South Australia (1995) 184 CLR 163, Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

10. As to the first ground specified in the original application it is difficult to understand from the applicant’s application and her submissions what information she alleges ought to have been provided to her in accordance with s.424 of the Act.

11. I accept the Minister’s submission that on the face of the decision record it does not appear that there is any information which gave rise to an obligation on the part of the tribunal under s.424.

12. It is clear from the tribunal’s decision that the tribunal rejected the applicant’s claims to be a refugee because:

    a)the applicant’s knowledge of Falun Gong demonstrated at the tribunal hearing was considered by the tribunal to be superficial at best;

    b)her superficial knowledge of Falun Gong was inconsistent with her claim to be a Falun Gong practitioner,

    c)the fact that the applicant departed China for Singapore but then returned to China was considered by the tribunal to be inconsistent with a subjective fear of persecution; and

    d)the applicant’s ability to exit and re-enter the People’s Republic of China without hindrance showed the applicant was not of interest to Chinese authorities. 

13. The decision record reveals that the tribunal reached its conclusions after testing the applicant’s claims both internally by questioning the applicant herself and externally as against independent information about China available to it and the practice of Falun Gong in China.  The tribunal rejected her claims. 

14. The grounds raised by the amended application are, it seems to me, nothing more than an impermissible attempt to have this Court reach different factual conclusions to that arrived at by the tribunal.  Even if I was to disagree with the tribunal’s findings that would not provide a sufficient basis to set aside the tribunal’s decision, because the findings of fact are matters entirely for the tribunal.  The task of this Court is to scrutinise the process and the legal obligations cast upon the tribunal by the Migration Act 1958.

15. In my view, there is nothing irregular about the process that occurred before the tribunal and I am not persuaded that the tribunal has failed in any of its legal obligations towards the applicant.  In those circumstances, this application must be dismissed. 

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

Date:  9 November 2012