SZDNF v Minister for Immigration
[2004] FMCA 905
•9 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDNF v MINISTER FOR IMMIGRATION | [2004] FMCA 905 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Falun Gong practitioner – merits review – no jurisdictional error – privative clause decision – application dismissed. Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZDNF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1345 of 2004 |
| Delivered on: | 9 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Geoffrey T Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1345 of 2003
| SZDNF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript of the hearing. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 15 March 2004 and handed down on 6 April 2004.
The applicant is a citizen of China and arrived in Australia on
22 February 2003 on a visitor visa. He applied for a protection visa on 3 March 2003. His application was refused by a delegate of the Minister on 22 June 2003. He appealed this decision to the Tribunal on 25 July 2003 at which stage his statement of claim was almost identical in substance to that which he had attached to his original application.
The hearing was set to be held on 8 March 2004 after two prior dates had been changed. There was no reply to the hearing invitation in all three notifications of hearings, but the letter was not returned unclaimed. The applicant failed to appear at two hearings. The Tribunal also contacted the applicant by letter on 17 February 2004 advising that it had information adverse to his case and asking him to comment. This letter was not returned unclaimed. The Tribunal made its decision on 15 March 2004 without contacting the applicant further.
The claims before the Department and the Tribunal
The applicant’s claims to the Department and the Tribunal are set out at pages 25 to 27 and 48 of the Court Book. The applicant is from China and makes the claims on the basis of his alleged practice of Falun Gong. He says he started practising Falun Gong in May 1996. He had been unwell for most of his life, but practising Falun Gong helped him feel better. In July 1996 the Chinese government outlawed Falun Gong.
In March 2000 the applicant went to Beijing to protest against “the persecution of Falun Dafa.” He was arrested and detained and went on a hunger strike so he was let out after five days. He then claimed that he was tortured and imprisoned as a practitioner of Falun Gong. In June 2002 he says that several policemen arrested him at his house and put him in prison. He went on a hunger strike again and the police force fed him and in doing so cut his mouth. They also forced him to swallow a strong salt solution, peppery water and they wiped ground chilli paste into his eyes. He says that they beat him up at night with his mouth covered up so he could not scream.
He claims that he accused the prison guards of doing illegal acts so they got the other prisoners to force feed him. He also says that “My righteous thoughts and deeds frightened the evil authorities” so they let him out on bail for medical treatment. He says he left the “forced labour camp” on 21 November 2002.
The Tribunal decision
The Tribunal summarised its findings as follows:
Putting together all the Applicant's claims and the relevant independent country information, the Tribunal does not accept that he was ever a Falun Gong practitioner or that he has ever been arrested, gaoled or tortured or otherwise harmed for this or any other Convention reason. The Tribunal does not accept that there is a real chance that the Applicant would be detained, questioned, jailed, tortured or in any other way harmed if he were to return to China either now or in the foreseeable future. The Tribunal finds that the Applicant does not have a well-founded fear of persecution should he return to China, now or in the reasonably foreseeable future and finds that he is not a refugee.
The basis for these findings is set out accurately at paragraph 3 of the respondent's submissions:
a)The Tribunal found the applicant’s account of his Falun Gong activities to be vague, sketchy and unsubstantiated;
b)The Tribunal noted that, by the applicant's own account, he was only interested in the movement for its ability to cure its physical ailments and he did not mention any of the philosophical, moral or spiritual elements that were important aspects of Falun Gong beliefs;
c)Save only for the claim that he had been arrested in March 2000 for appealing for an end to the persecution of Falun Gong, the applicant gave no explanation of his involvement [in] the movement between the crackdown in July 1999 and the time he finally left for Australia in February 2003 and did not say how, if at all, he continued to practise Falun Gong during that period;
d)The Tribunal found clear contradictions in the applicants evidence;
e)the Tribunal accepted country information which indicated that the applicant would not have been able to obtain a passport or [exit] visa had he been of adverse interest to the Chinese security authorities. The Tribunal was not satisfied that the applicant would have been issued with a passport in his own name if he had been adversely known to the authorities, as (it found) he would have been if his claims were true and he had previously been arrested and placed in a forced labour camp, or was about to be arrested;
f)The Tribunal found its view strengthened by passport stamps, which it accepted as genuine, indicating that the applicant traveled [sic] out of China from 22 September 2002 to 4 October 2002, whereas he claimed to have been arrested in June 2002 and not released until 21 November 2002. In this respect, the Tribunal noted that on 17 February 2004 it had invited the applicant to comment upon this inconsistency by 11 March 2004, but that the Tribunal received no response from the applicant;
g)The Tribunal also found that the applicant was able to leave and enter China on a number of occasions without experiencing difficulty with the authorities and that this also indicated that the applicant was not adversely known, or targeted by Chinese authorities.
I also note the Tribunal invited the applicant to appear on two occasions at a hearing pursuant to sections 425 and 425A of the Act but that the applicant did not appear. There were aspects of his claims that it intended to explore with him at the hearing had he chosen to attend.
The applicant’s case
In the his application of 7 May 2004 the applicant claims:
1)The decision of the Refugee Review Tribunal be set aside.
2)The decision involved an important exercise of the power conferred by the Migration Act and Regulations
3) Costs.
The grounds of the application are:
1) I fear persecution for reason of membership of a particular social group – Falun Gong.
2) I believe the fear of persecution is well-founded. I am a genuine Falun Dafa practitioner and I started to exercise it in May 1996. Just because of this, I have been put into detention and jail for several times by the Chinese authority. In March 2000 I was arrested and detained at Qili detention in Hexi district Tianjin. In June 2002, several policemen from Tianjin Police Station arrested me at home and sent me into jail illegally.
At the hearing, the applicant asked the interpreter to read out a statement to the Court. In the main this statement just restated the applicant’s claims as made to the Department and the Tribunal. However, he did also claim that the Tribunal member abused “its judicial power”. When asked to expand on this he said this was because the applicant was a Falun Gong practitioner and so he was not happy with the Tribunal’s judgment.
Consideration
The application is deficient in that it does not identify anything in relation to the decision of the Tribunal or the proceedings before the Tribunal that would assist the Court in determining whether there is any reviewable legal error. I invited the applicant at the hearing to put to me anything that might assist in identifying a legal error, but apart from reiterating his dispute with the findings of fact made by the Tribunal, he was not able to expand upon his application in any significant respect.
Mr Johnston for the respondent Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is apparent that the Tribunal found significant difficulties with the applicant’s claims about his involvement with Falun Gong and the harm he said he suffered as a result. These difficulties were not able to be resolved and in fact were compounded when the applicant failed to attend a hearing on two occasions and also failed to respond to the Tribunal's request of 17 February 2004 for comments on inconsistencies in his story.
The Tribunal found that the applicant was not a Falun Gong practitioner and did not accept that he had been arrested, jailed or tortured or otherwise harm for this or any other Convention reason. It also found that there was no real chance that he would be detained, questioned, gaoled, tortured or in any other way harmed if he returned to China. The Tribunal said that the applicant did not have a well-founded fear of persecution should he return to China.
The Tribunal’s findings were reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
What the applicant is really asking me to do is to engage in merits review and to reconsider factual issues and the factual findings of the Tribunal. This is something that I indicated to him on a number of occasions at the hearing that this Court cannot do.
I therefore find that the decision of the Tribunal is a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers, the decision clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances the application to this Court must be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 12 January 2005
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