SZCTB v Minister for Immigration

[2006] FMCA 706

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCTB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 706

MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – whether the applicant made a separate claim of agitation in favour of Falun Gong practitioners considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.91R

SZCTD v Minister for Immigration & Anor [2006] FMCA 707

Applicant: SZCTB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG415 of 2004

Judgment of: Driver FM

Hearing date: 16 May 2006

Delivered at: Sydney

Delivered on: 16 May 2006

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG415 of 2004

SZCTB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 21 January 2004.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made a sur place claim based upon asserted Falun Gong activities in Australia.  I adopt as background paragraphs 2 to 8 of written submissions filed on behalf of the applicant on 15 May 2006:

   In January 2003 the applicant arrived in Australia. (court book, page 56.1).

   In January 2003 the applicant applied for a protection visa. (court book, pages 1-33) The application included a five page statement purportedly from the applicant and setting out his claims, (court book, pages 25-29) although the applicant later stated that the migration agent had made up the claims in the document. (court book, page 58.10)

   On 20 May 2003 a delegate of the Minister made a decision refusing to grant the applicant a protection visa. (court book, pages 34-42)

   On 23 May 2003 the applicant applied to the RRT for review of the delegate’s decision. (court book, page 43-46)

   On 2 December 2003 the applicant attended a hearing before the RRT. (court book, page 58.6)

   On 29 December 2003 the RRT made a decision. (court book, pages 55-68), which it handed down on 21 January 2004 (court book, page 55), affirming the delegate’s decision not to grant the applicant a protection visa.

   The applicant has applied to the Federal Magistrates Court for judicial review of the RRT’s decision. 

2. The application before the Court has been through several iterations, which reflects changes in representation.  The applicant is now represented by Mr Zipser, who sought and received leave to file in court today a further amended application.  That sets out a single ground of review on which the applicant relies.  That ground is that the RRT, in considering whether the applicant was genuinely committed to the practice of Falun Gong, ignored the applicant's claim concerning his protest activities.  On this basis it is alleged that the RRT fell into jurisdictional error.  In essence, the applicant's assertion is that the RRT fell into error in considering only the applicant's adherence to the practice of Falun Gong and not what is said to be a separate claim of involvement by the applicant in protest activities.  This may be viewed as a proposition that the applicant was claiming both to be a Falun Gong practitioner and an agitator.

3. It is apparent that the applicant failed because his claims of Falun Gong adherence were not believed by the RRT. Based upon the applicant's inability to describe in any detail the details of the Falun Gong belief, the presiding member formed the view that the applicant only took up the practice of Falun Gong in Australia in order to enhance his claims to a protection visa and that, in accordance with s.91R(3) of the Migration Act 1958 (Cth), she was required to disregard the applicant's activities in Australia. There appeared to be no other basis on which a protection visa could be considered, and accordingly, the application before the RRT failed.

4. In order to succeed in the judicial review application the applicant would need to persuade me that there were, in truth, two elements of the claim.  I am not so persuaded.  On page 60 of the court book the presiding member records asking the applicant what would happen to him if he returned to China.  The applicant stated that if he returned to China he would be persecuted because he is involved in Falun Gong practice.  Although the applicant made reference to visits to the Chinese Consulate, and that is reflected in the transcript of the RRT hearing which I have before me (in particular on pages 7 and 8) it does not appear to me that the applicant's evidence pointed to a separate claim of agitation.  Rather, the applicant was simply seeking to persuade the RRT that he was a genuine Falun Gong practitioner.  He failed in that attempt.

5. I conclude that there is no jurisdictional error in the decision of the RRT and the application must be dismissed.  I will also order.

6. The application having been dismissed, costs will follow the event.  The matter was dealt with until hearing today concurrently with the matter of SZCTD v Minister for Immigration & Anor[1] and some savings were achieved.  In the light of the further amended application as filed, the two matters were heard seriatim.  On reflection I have decided that $3,000 would be adequate recompense for the Minister on a party/party costs assessment.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

   [1] [2006] FMCA 707

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:  23 May 2006