SZFCL v Minister for Immigration
[2005] FMCA 635
•4 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFCL v MINISTER FOR IMMIGRATION | [2005] FMCA 635 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Hong Kong – no reviewable error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A
Minister for Immigration and Ethnic Affairs v Wu Chan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
| Applicant: | SZFCL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3442 of 2004 |
| Delivered on: | 4 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 May 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Reilly |
| 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 $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3442 of 2004
| SZFCL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 12 October 2004 and handed down on 4 November 2004. The Tribunal affirmed the decision of the delegate of the Respondent Minister not to grant a Protection Visa to the Applicant.
The Applicant is a citizen of Hong Kong. She arrived in Australia on 21 April 2004. On 27 May she lodged an application for a Protection Visa. A delegate of the Minister refused the application the following day.
The Applicant lodged an application for review of that decision on
30 June 2004. When she lodged her application the applicant provided a written statement in which she claimed that the political and economic system in Hong Kong had changed since 1997. She said that as a Falun Gong member she had been placed on the government's black list and she was worried about her safety, both in Hong Kong and in China itself.
The Applicant gave oral evidence to the Refugee Review Tribunal on
5 October 2004. On 12 October the Tribunal affirmed the decision of the delegate of the Minister not to grant a Protection Visa.
The Applicant claims that since 1997 the political system and economic system in Hong Kong have changed dramatically. She said that unemployment had increased sharply and she has not had a job for a long time. The Applicant also indicated that the people of Hong Kong cannot enjoy the freedom of political opinion and that the government of China puts a lot of pressure on the people of Hong Kong to influence their votes.
She claimed that when she arrived in Hong Kong from mainland China she often returned to China to participate in Falun Gong activities. As a Falun Gong member she was detained by the authorities and has been placed on a black list.
The Applicant claimed that Hong Kong is no longer a safe place to live and that her political opinion and the fact that she has been involved in Falun Gong activities make it unsafe for her to live in Hong Kong. The Applicant decided to leave Hong Kong to come to Australia for protection.
The Applicant is married with two teenage children. Her husband and children remain living in Hong Kong. The children attend school there. The Applicant said that she left Hong Kong because she was unemployed and unable to find work. The applicant said that there was no security in Hong Kong. She was afraid of being robbed or beaten by someone in the streets. She told the Tribunal that unemployment and inability to find work were some reasons why she left Hong Kong. She said she had been arrested in China because of her Falun Gong activities. She said that she was too scared to practise Falun Gong in Hong Kong between 1996 and 2004 because she was afraid of being arrested.
The Tribunal pointed out that the main point raised by the Applicant was that she was not able to return to Hong Kong because of fears for her personal security and because of the general economic downturn. Unfortunately, poor economic circumstances or unemployment are not a reason for protection under the Refugees Convention.
The Tribunal also noted that the Applicant had said she was worried for her personal security because on the streets of Hong Kong she could be robbed or beaten by somebody at any time. This is also not a convention reason for obtaining a Protection Visa.
The Applicant said that she was a Falun Gong practitioner but said that she had not indulged in any Falun Gong activities from 1996 to 2004. The Tribunal found it remarkable that the Applicant still claimed that she was worrying about returning to Hong Kong because of fears about her Falun Gong practice.
The Tribunal said that Hong Kong is a special administrative region in China. It is significantly different from mainland China in terms of religious freedom. Hong Kong permits the practise of Falun Gong.
The Tribunal found that the Applicant's fears of persecution on returning to Hong Kong because of her Falun Gong beliefs were just not well founded.
The Tribunal noted that the Applicant said that she feared persecution for political reasons but provided no evidence of it.
The Applicant filed an application in which she relied on three grounds. I asked the Applicant about the three grounds in her application. She was not able to explain any of them and said that her Migration Agent had prepared them. The first ground is this:
I found jurisdiction error with the procedure of Refugee Review Tribunal when it considered my application for a Protection Visa.
The Applicant was not able to explain how the Tribunal had made any errors in procedure. The second ground of the application was this:
The Tribunal failed to exercise its jurisdiction as it failed to produce any evidence to prove that I would not be persecuted on my return to China and Hong Kong.
The Applicant was not able to explain this ground. The third ground is this:
The Tribunal failed to exercise its jurisdiction as it misunderstood the situation in Hong Kong. The political situation in Hong Kong is much different from the situation before 1997. After the Government becomes to be controlled by the Chinese authorities the policies and system in Hong Kong remained the same on the surface. As a matter of fact it was totally different. The Tribunal only chose the good information which was favourable to the Tribunal's decision. In fact all this information was wrong information and cannot be used as evidence to justify the decision of the RRT.
The Applicant agreed that the political situation in Hong Kong had changed but was unable to expand on that point. The Applicant filed an affidavit at the same time as her amended application. The affidavit was more a submission along the lines of the application. It did, however, refer in paragraphs (1) and (3) to a claim that the Tribunal was biased against her.
An allegation of bias should not be made lightly. The allegation in the affidavit is a claim of actual bias rather than apprehended bias. I asked the Applicant to explain about this claim of bias. The Applicant did not know anything about it. She said that all of this affidavit had been written by her Migration Agent. The Applicant was not able to give any further evidence or make any other submission as to why the application should be granted.
I have read the Respondent's written submissions. The Respondent points out, quite correctly, that the Applicant's fear of unemployment or her fears for her personal security in Hong Kong did not involve any connection with the Refugees Convention. The Tribunal also found that the independent country information relating to Hong Kong did not confirm the Applicant's claims to have a fear because of her practise of Falun Gong and her political opinion.
The thrust of the Applicant's application seems to be a challenge to the findings of fact made by the Tribunal. Counsel referred the Court to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where it is said that the Court cannot review the merits of a Tribunal decision.
The Respondent's counsel also submitted that there is no error of law in the Tribunal making a wrong finding of fact. The reference is to Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The Applicant claims that the Tribunal's decision was made without evidence, but the Tribunal sets out country information upon which it relies.
In her affidavit the Applicant made a claim of bias on the part of the Tribunal. A claim of bias involves a claim of personal fault on the part of the decision maker. There is no evidence before me that the Tribunal treated the applicant unfairly during the hearing. The Applicant attended the Tribunal hearing and gave oral evidence. She provided written evidence in the form of a statement. The Tribunal asked her questions about her application. There is nothing to indicate that the procedure adopted by the Tribunal was incorrect. It is not sufficient to prove a claim of bias by showing that the decision maker made a decision that did not favour the Applicant.
Even if the decision maker makes a factual error, that fact and nothing more would be insufficient to substantiate any claim of bias. There is no evidence of bias by the tribunal.
Turning to the second ground of the application; it is not a failure to exercise jurisdiction if the Tribunal fails to produce any evidence to prove that the Applicant would not be persecuted on her return to China and Hong Kong. It is the Applicant who must bring the case. It is not the responsibility of the Tribunal to disprove the Applicant's claim. There is no obligation on the Tribunal to produce evidence rebutting a claim by an Applicant. Rather, it is the other way round. The Applicant must make his or her case to the Tribunal.
In short, there is no jurisdictional error. There is no reviewable error and the application will be dismissed.
To my mind this is a suitable matter for a costs order. I propose to make an order that the applicant is to pay the Respondent's costs. The sum of $5000.00 is sought by the Respondent and this is within the range provided by the Federal Magistrates Court scale. I would comment that this was an application entirely without merit and the Applicant was unaware even of the details in her application and her affidavit.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 13 May 2005
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