SZCPX v Minister for Immigration - [2005] FMCA 1234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCPX v MINISTER FOR IMMIGRATION

[2005] FMCA 1234

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision – applicant a citizen of China – claim of well-founded fear of persecution because of adherence of the practices of Falun Gong.

PRACTICE & PROCEDURE – Summary dismissal – no reasonable cause of action disclosed.

Judiciary Act 1903 (Cth), s.39B.
Migration Act 1985 (Cth), s.475A.
Federal Magistrates Court Rules 2001, r.13.10

Applicant:

SZCPX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 267 of 2004

Delivered on:

11 August 2005

Delivered at:

Sydney

Hearing date:

11 August 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Nanson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 267 of 2004

SZCPX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There is a Notice of Motion before the Court this morning asking that the proceeding be dismissed because no reasonable cause of action is disclosed in the application.
The Respondent relies on Rule 13.10(a) of the Federal Magistrates Court Rules. The Applicant seeks review of a decision of the Refugee Review Tribunal which was made on 17 December 2003. The decision was handed down on 15 January 2004. The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant is a citizen of the People’s Republic of China. He arrived in Australia on 15 September 2002. On 10 October that year he lodged an application for a protection visa. On 28 October 2002 his application for a protection visa was refused. On 2 December 2002 he applied to the Refugee Review Tribunal for a review of that decision.
The hearing of the application for review took place on 24 October 2003. The Applicant attended and gave oral evidence. He says that he left China because he feared persecution as a Falun Gong practitioner. His mother was imprisoned because she was a Falun Gong practitioner. He practises Falun Gong in private but fears that he will be found out. He only obtained a passport because he paid extra money to people in the passport office. He visited New Zealand in November 2001 and stayed there for about 12 or 13 days. He did not apply for refugee status in New Zealand because he did not think he needed to do so.
He returned to China by way of Korea. He said that he began to fear persecution at the end of 2001 as his mother had not been released from detention and he was banned from visiting her. The Tribunal asked him a number of questions about Falun Gong. The Tribunal member asked him to demonstrate and name the five exercises. He was also asked a number of other questions about his case.
The problem is that the Tribunal did not accept that the Applicant is or was a Falun Gong practitioner. The Tribunal did not believe his evidence. The Tribunal based this finding on what the Tribunal described as his very faulty knowledge of the exercises. This is set out on page 70 of the Court Book. The Tribunal did not accept his claim that China’s police would not be able to distinguish between Falun Gong and the practice of Qi Gong.
The Applicant filed his application on 4 February 2004. He filed an amended application on 27 August 2004. The lawyers for the Minister say that his amended application still does not set out a reasonable cause of action. I have examined his amended application. His claims are set out in five paragraphs. Four of them amount to a challenge to the Tribunal on the facts. The Applicant says that the Tribunal member did not know much about Falun Gong and his decision is incorrect. I explained to the Applicant that where a Court conducts a judicial review the Court does not reconsider the facts. Findings of fact are a matter for the Tribunal, not the Court.
The fifth and final paragraph of the amended application sets out other grounds that the Applicant relies on. He states his belief that the officer of the RRT made jurisdictional errors. The Applicant says that the RRT did not consider all of the information provided. I asked him about that claim and he replied that the Tribunal member’s knowledge of Falun Gong was defective and his complaint was that the Tribunal did not believe him. The Applicant did not provide any details of information that had not been considered.
The Applicant says that the Tribunal member was biased against him. An allegation of bias is a very serious allegation and implies an element of personal fault on the part of the decision-maker. I asked the Applicant to address the Court in detail about this claim. He said that he did not believe that the Tribunal considered his application in the whole picture format. The mere fact that a Tribunal brings down a decision that is unfavourable to a party does not, of itself, constitute conclusive evidence of bias. There is no other evidence which would go towards the question of bias.
The Applicant said that the Tribunal’s consideration of his case was very vague, although my perusal of the decision shows that the Tribunal considered the Applicant’s case in some detail. The Applicant says that the Tribunal’s decision amounts to no more than a series of unsupported and unjustified assumptions. In my view the Tribunal has rejected the Applicant’s claim based on the fact that the Tribunal did not accept his evidence and the Tribunal has given reasons for its decision. The question of finding facts is solely a matter for the Tribunal.
The Applicant also says that this matter is listed for hearing on the afternoon of 3 March 2006. He says that the matter should wait until that date for a final hearing. He says that that will allow him time to obtain the appropriate legal advice. He also says that it is unfair on the part of the Respondent to attempt to terminate these proceedings early. In my view I do not see that it is unfair. The Applicant commenced these proceedings on 4 February 2004. It is now 11 August 2005. The Applicant has, in my opinion, had ample time to obtain legal advice and to prepare his case. There is no reason why the matter should wait for more than two years for a hearing.
The fact is that the Respondent’s intention is correct. The application does not disclose a reasonable cause of action. I have read through the decision and I can find no evidence of jurisdictional error that would justify a finding in favour of the Applicant. It follows that the Notice of Motion must be successful and the application should be dismissed. I am satisfied that it does not disclose a reasonable cause of action and according to Rule 13.10 I dismiss the application and I vacate the hearing date of 3 March 2006.
I am satisfied that the amount of $3,000 is well within the scale provided by the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 22 August 2005