SZCTD v Minister for Immigration

[2006] FMCA 707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCTD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 707

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – whether the RRT overlooked relevant material considered – no reviewable error found – application dismissed.

SZCTB v Minister for Immigration & Anor [2006] FMCA 706
VAAD v Minister for Immigration [2005] FCAFC 117

Applicant: SZCTD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG416 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

SYG416 of 2004

SZCTD

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 the practice of Falun Gong in Australia.  Relevant background facts are set out in the applicant's written submissions filed on 15 May 2006.  I adopt paragraphs 2 to 8 of those submissions as background:

   In January 2003 the applicant arrived in Australia. (court book, page 74.1)

   In January 2003 the applicant applied for a protection visa. (court book, pages 1-37)  The application included a five page statement purportedly from the applicant and setting out his claims, (court book, pages 36-37) although the applicant later stated that the migration agent had made up the claims in the document. (court book, page 79.8)

   On 20 May 2003 a delegate of the Minister made a decision refusing to grant the applicant a protection visa. (court book, pages 38-46)

   On 23 May 2003 the applicant applied to the RRT for review of the delegate’s decision. (court book, pages 47-50)

   On 2 December 2003 the applicant attended a hearing before the RRT. (court book, page 76.6)

   On 29 December 2003 the RRT made a decision. (court book, pages 73-87), which it handed down on 21 January 2004 (court book, page 73), affirming the delegate’s decision not to grant the applicant a protection visa.

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

2. The applicant relied today upon a further amended application filed in court by leave.  That raises a single ground of review, namely that the applicant provided statutory declarations from three people which corroborated her claims that she was a genuine Falun Gong practitioner.  The RRT allegedly ignored these statutory declarations in the course of finding that the applicant was not a genuine Falun Gong practitioner.  The RRT allegedly fell into jurisdictional error on this basis. 

3. It is apparent, and Mr Zipser for the applicant confirmed, that the applicant seeks to take advantage of the decision of the Full Federal Court in VAAD v Minister for Immigration [2005] FCAFC 117. The difficulty for the applicant is that the assertion founders upon the evidence in the court book filed on 1 July 2004. The relevant statutory declarations appear on pages 61 to 65 of the court book. As was noted by Mr Zipser, the statutory declarations were identified, possibly somewhat loosely, on page 80 of the court book. On page 79 of the court book the presiding member notes that all of this material was provided after the hearing conducted by the RRT. On page 86 of the court book, under the heading “Findings and Reasons” the presiding member said this:

   I note the material provided by the applicant subsequent to the hearing.  However, this material does not persuade me that the applicant took up Falun Gong for any reason other than to create for herself the profile of a refugee.  As noted above, the applicant was not a Falun Gong practitioner in China.  Given my finding that the applicant only started practicing Falun Gong in order to enhance her claims to refugee status, I am of the view that the chance that she would practise Falun Gong on return to China is remote. 

4. In the face of that reasoning, the applicant's argument must fail.  The statutory declarations were not only referred to by the presiding member, but were taken into account in the course of her reasons.  Accordingly, I find that the RRT did not fall into the error identified by the Full Federal Court in VAAD. 

5. I find that the decision of the RRT is free from jurisdictional error.  Accordingly, I will dismiss the application.

6. On the question of costs, the application having been dismissed, costs should follow the event.  This matter was heard on the same day as SZCTB v Minister for Immigration & Anor[1] and some cost savings were achieved by dealing with the matters up to trial concurrently.  They raised similar, but not identical, issues.  In my view, $3,000 is adequate recompense for the Minister on a party/party assessment.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

   [1] [2006] FMCA 706

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