SZFDN v Minister for Immigration
[2005] FMCA 230
•23 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDN v MINISTER FOR IMMIGRATION | [2005] FMCA 230 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Applicant: | SZFDN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3516 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $3,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3516 of 2004
| SZFDN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed on 31 July 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, first arrived in Australia in 1998 and last arrived on 1 February 2002. On 19 February 2002 he lodged an application for a protection visa. His application was accompanied by a two-page statement in which he claimed to fear persecution in China as a member of and because of his activities as a member of Falun Gong. He also gave some background to his involvement in Falun Gong, to which I shall return.
On 12 March 2002 a delegate of the respondent wrote to the applicant, seeking comment on information adverse to his claims to fear persecution because of involvement in Falun Gong which may lead to his application being refused. The applicant responded by letter dated 15 April 2002.
On 16 April 2002 the Minister's delegate refused to grant the applicant a protection visa. On 17 May 2002 the applicant sought review by the Tribunal. He did not provide any further information to the Tribunal other than repeating his claim to be a Falun Gong practitioner and that the feared persecution and discrimination.
On 20 May 2002 the Tribunal wrote to the applicant at the address provided in the application for review, inviting him to send any new documents or written evidence. It does not appear that any such evidence was provided.
On 13 March 2003 the Tribunal wrote to the applicant at his mailing address and also at his home address, advising that it had considered the material before it but was unable to make a favourable decision on that information alone. It invited the applicant to attend a hearing on 27 May 2003 at a place and time specified. The letter explained that if the applicant did not attend the hearing, the Tribunal could make a decision on the case without further notice.
On 1 April 2003 the Tribunal received a response to hearing invitation from the applicant and in response to the question, "Do you want to come to a hearing?" the box, "No, I do not want to come to a hearing", was ticked. The form continues:
I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
On the same date the Tribunal also received an appointment of authorised recipient form. Subsequently, the Tribunal made a decision affirming the decision of the delegate not to grant the applicant a protection visa.
As indicated, the essence of the applicant's claims were that he feared persecution as a member of Falun Gong. In the statement accompanying his protection visa application he claimed by way of background that he commenced work in a state-owned factory in 1980, was subsequently dismissed because of economic reforms, had no job and began to worry about his everyday life, and with other dismissed workers disappointed by the government formed an organisation to help dismissed workers negotiate with the government and to demonstrate. He stated that they went to court to complain about the government, were regarded as anti-revolutionary, and were threatened with imprisonment and that some people who complained too much about the government were detained or punished by the government. It was not claimed he was so treated. He claimed that the organisation was not allowed to register and was illegal.
The applicant claimed that he then began to practise Falun Gong; that he was actively involved in Falun Gong practices; that once invited to a Falun Gong meeting or get-together, he would attend; that his home was a place for such get-togethers which he organised; and that he prepared Falun Gong materials for the meetings, such as booklets, tapes and videos.
He claimed that as a result of this involvement he was warned by the leader of the neighbourhood committee not to organise such activities and that his home was placed under surveillance. He claimed that he was threatened with arrest and that the local police forced him to report everyday. He claimed that he would not be protected by the authorities and if he returned to China he would suffer unemployment and be denied the basic benefits of every Chinese; that the government would punish him and would think he had betrayed the country.
In response to the departmental request for comments (on information about the fact that people who depart the country legally have been thoroughly vetted by security officers, information indicating that only certain categories of Falun Gong adherents were of interest to the authorities and that the applicant did not fall into such stated categories, and information suggesting public or group activities were not fundamental to the practice of Falun Gong) the applicant responded by letter that the police arrested Falun Gong practitioners who practised at home as well as those who take place in public or group activities, that practitioners were under severe surveillance, that he had had no freedom practise Falun Gong, that the leader of the neighbourhood committee would always come to persuade him not to practise and if he kept on doing so he would have to report to the police station every day. He also suggested that independent information in the web or the newspaper could not cover everything and that even if a person was not a senior or key member of Falun Gong he or she would also be detained. As indicated above no further claims were made to the Tribunal.
The Tribunal reasons for decision note that the applicant advised the Tribunal in writing that he did not wish to attend the hearing and give oral evidence. Hence it determined the application on the evidence before it. It outlined independent country information regarding the situation of Falun Gong members in China. It noted that the application was very general and lacked the necessary detail which the Tribunal needed to establish the relevant facts in an application of this type.
The Tribunal went on to refer to specific deficiencies in the evidence before it. The applicant had failed to provide any details as to the extent, or level, of his alleged involvement in Falun Gong, (although the Tribunal found that the lack of detail would indicate low level involvement). The application did not indicate any knowledge of the practice of Falun Gong or provide any details as to the circumstances in which the applicant came to join the group. Nor did the applicant indicate when or where he joined Falun Gong. There was no supporting information or details to indicate the content of the material he allegedly prepared or the circumstances of distribution. There were no supporting details or information on the specific circumstances of the claim about surveillance and the claimed warning.
The Tribunal noted that independent information indicated that only leaders of Falun Gong were likely to be subject to adverse treatment, that ordinary members (a category to which the applicant may have belonged) were usually given a warning and sent away. It also had regard to the fact that those of adverse interest to the authorities may be restricted from leaving China, yet the applicant was able to leave China without difficulty. He had also lived at the same address for over 14 years, which was regarded by the Tribunal as apparently at odds with his claim about unemployment since 1997. The Tribunal noted that there was no claim that his unemployed status was due in any way to his alleged involvement with Falun Gong. This fact, together with the other findings and the absence of any information or details relative to the claim, indicated that the applicant was not of adverse interest to anyone including either the Chinese authorities or the neighbourhood committee leader. The Tribunal found that the lack of detail and substance of the information before it and the independent country information conflicting with that implied by the application, led it to the conclusion that the application was not genuine. The Tribunal found on the evidence before it that the applicant had no subjective fear of persecution and hence no well founded fear of persecution.
The applicant sought review of the Tribunal decision by proceedings commenced in this court on 1 December 2004. His application contains five general and unparticularised grounds. No written submissions were filed. The applicant is self represented. I have considered not only the grounds in his application but also his oral submissions and all of the material before me in considering whether there any jurisdictional error is apparent.
The applicant's first claim repeats his claims to be actively involved in Falun Gong. This re-statement of the applicant's claims does not establish any error in the Tribunal decision. Insofar as it seeks merits review, merits review is not available in the court. (MIEA v Wu Shan Liang (1996) 185 CLR 259). If the ground is intended as a complaint that the Tribunal failed to consider the applicant's claims of involvement in Falun Gong, again it must fail. It is apparent from the Tribunal reasons for decision that it did consider the applicant's claims in relation to involvement in Falun Gong, including his claims of organising get-togethers and preparing material. No jurisdictional error is established by this ground.
The second ground is: ‘The Department of Foreign Affairs and Trade was unable to obtain information to either confirm or vary its earlier advice about the form’. This ground is not expressed clearly. Taken at its highest it appears to assert that the Department of Foreign Affairs and Trade was unable to obtain current or more up-to-date information about country conditions in China to either confirm or vary its earlier advice on the subject.
The Tribunal is, of course, separate from the Department of Foreign Affairs and Trade. According to the Tribunal reasons for decision it had before independent country information from various sources including Human Rights Watch, Amnesty International and the Department of Foreign Affairs and Trade. It took those reports into account when preparing its decision. The conclusions that it reached were open to it on material before it and the Tribunal was not, in the circumstances of this case, under a duty to make any further inquiries.
Insofar as the applicant takes issue with the weight given to particular items of country information, such weight is a matter for the Tribunal. Moreover, and this is also relevant to ground 4, it is for the applicant to present information to the Tribunal to advance his argument that he had a well-founded fear of persecution for a Convention reason and for the Tribunal to decide whether that claim is made out on the basis of the information before it; Abebe v The Commonwealth (1999) 197 CLR 510 at paragraph 187 per Gummow and Hayne JJ. Also see MIMIA v SCAR (2003) 198 ALR 293 at [36].
The third ground relied upon is that the Tribunal failed to consider and properly exercise its discretionary powers under sections 427 and 420 of the Migration Act 1958. No particulars are provided of this claim. There is no evidence to suggest that the Tribunal did not follow the procedures laid out in the Migration Act, that it failed to observe section 420 or that it erred in exercising the powers conferred by section 427.
In particular, the information before the court indicates that the Tribunal properly invited the applicant to appear at a hearing to give evidence and present arguments in accordance with section 425 of the Act and that the notice of invitation complied with the requirements of section 425A. Indeed, it is also apparent from the material before the court, that while the applicant complained in oral submissions that he did not receive notices from the Tribunal, the Tribunal sent the invitation to hearing to the two addresses, the mailing address and the home address provided by the applicant in the review application. It received a response on 1 April 2004. In those circumstances it was open to the Tribunal to proceed to make a decision without taking any further action to allow or enable the applicant to appear before it under section 426A.
The fourth ground was that ‘the Tribunal depend on country information that was wrong about dealing with my refugee case’. As stated above merits review is not available in this court and the claim that the Tribunal should have preferred the applicant’s evidence to the independent country information does not establish jurisdictional error. Again, there is an absence of particulars, but considering the claim generally in relation to the Tribunal decision, the applicant provided only a limited statement of his involvement with Falun Gong. The insufficiency of the information provided was brought to his attention by the Tribunal in the letter of 13 March 2003. He failed to take advantage of the opportunity to provide further information such as country information or, indeed, to attend a hearing. The Tribunal determination that the applicant had failed to establish a genuine claim to fear persecution was open to it on the limited evidence presented by the applicant and the independent country information before it.
Insofar as the applicant complains about the Tribunal's fact finding no jurisdictional error is established. This is not a case in which it is apparent that the Tribunal fact finding involved jurisdictional facts in the manner considered in NABV v MIMIA [2004] FCAFC 263 at [53].)
Finally, the applicant complained in the application as follows ‘Few fact and evidence from my side the Tribunal made an error law in the decision.’ No error of law, let alone a jurisdictional error, is established or apparent on the material before the court. To the extent that the applicant claims that the Tribunal failed to take into account all the facts and evidence presented by him, no particulars have been provided. The essence of his claim, as is apparent from his Refugee Review Tribunal application, related to his Falun Gong activities. The Tribunal took into account the integers of such claim.
In the statement accompanying his protection visa application the applicant also referred to an organisation for dismissed workers in which he claimed he was involved, although he provided scant details of the extent and nature of his involvement and did not claim to fear persecution as a result of any such involvement. He did claim that if he returned to China he would be unemployed and denied of basic benefits for every Chinese. While the Tribunal decision is short, nonetheless reading the decision fairly and as a whole, I consider that it took into account, insofar as possible on the material before it, all claims raised and those apparent on the material provided by the applicant. As the Tribunal indicated, the application was very general and lacked the necessary detail upon which the Tribunal needed to establish the relevant facts. The Tribunal referred particularly to the lack of detail about the background to the applicant joining Falun Gong, (the context in which he referred to the earlier activities). It noted his claim that he had been unemployed, but that there was no claim that this status was due in any way to his involvement with Falun Gong. Relevantly, it dealt with this aspect of the claim in finding that this fact, considered with the earlier findings and the absence of any information or details relative to the claim, indicated that the applicant was not of adverse interest to anyone, including either the Chinese authorities or the neighbourhood committee leader. Indeed, it went on to say that, alternatively on the balance of probabilities, the same information or rather lack of information indicated that the application had no foundation. It also had regard to the delay in application for a protection visa which it considered inconsistent with fear and on the totality of the evidence before it found that the applicant had no subjective fear of persecution. While the reasons for decision are expressed generally, in light of the vague, generalised and non specific details of the background to what had occurred to the applicant, I am satisfied that the Tribunal sufficiently dealt with the elements of his claim apparent on the material provided. The applicant failed because, for reasons which it gave which were open to it on the material before it, the Tribunal did not accept that his claims were genuine, that he was of adverse interest to anyone or that he had a subjective fear of persecution.
In oral submissions the applicant complained that he did not know how the Tribunal made its decision and had not been notified and that the decision was not fair to him. I have already addressed the complaint that the Tribunal did not interview him, indicating that he chose not to attend a Tribunal hearing. The Tribunal reasons reveal how it made its decision. The applicant complained that it was not fair to reject his claim just because he could not provide evidence. This claim does not establish any jurisdictional error. Apart from the initial response to the departmental request, the applicant did not take up the Tribunal on the opportunities it offered him to elaborate on his claims. It is for the applicant to make his case before the Tribunal.
There is no lack of procedural fairness apparent in the Tribunal procedures or decision. As no jurisdictional error is established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The respondent seeks that he meet the costs of these proceedings. The applicant states that he has no money and is in detention. Whilst such matters may be taken into account by the respondent in determining whether and how to seek to recover any costs, they are not such as to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.
The amount of $3,750 which is sought is appropriate in the light of the nature of this and other similar matters.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 10 March 2005
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