SZFGI v Minister for Immigration (No.2) - [2005] FMCA 525

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFGI v MINISTER FOR IMMIGRATION (No.2)

[2005] FMCA 525

MIGRATION – Visa – protection 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 China – where applicant claims a well-founded fear of persecution because of his practice of Falun Gong – independent country information – court cannot engage in merits review – no reviewable error.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed
Abebe v The Commonwealth, (1999) 197 CLR 510 referred to

Applicant:

SZFGI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3655 of 2004

Delivered on:

15 April 2005

Delivered at:

Sydney

Hearing date:

15 April 2005

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Reilly

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3655 of 2004

SZFGI

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 8 December 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant has filed an application giving three reasons why he says the decision was unfair and should be reviewed. The Applicant complains that he was not allowed to hand in additional materials and evidence before the Tribunal made its decision. He also complained that he was not granted an adjournment of the RRT hearing so that a witness who was overseas could give evidence on his behalf.
His third ground for complaint is that he believes the Tribunal made a decision following the independent country information. That information is about the position of normal practitioners of Falun Gong in China.
A brief history of the case is that the Applicant arrived in Australia on 22 March 1997. He claims that his wife, who is still in China, was introduced to the practice of Falun Gong in 1992. He said that his wife had learnt or been introduced to the practice by a neighbour.
The Applicant did not lodge his application for a protection visa until 2 November 2004. This is more than seven years after he arrived in Australia. The Applicant says that his wife was subject to ill treatment by the authorities in China in late July 1999. He said that the authorities had commenced a serious crackdown on practitioners of Falun Gong from about 20 July of that year. He says that on about 28 July, his wife was taken to a mental hospital by the authorities to be brain washed. She was given drugs, which had an affect on her brain. The course of brain washing, with the aid of the injections of drugs, took a period of 28 days.
The Applicant says that he tried to apply for a protection visa in the year 2000. He gave money, his passport and other documents to a person that he thought was a friend. He says that that person acted dishonestly towards him, and he does not know if the application was ever lodged or not. He lost his money and he lost his passport.
The Applicant has been in immigration detention for 22 months. He lodged an application for a protection visa in November 2004. That application was refused by a delegate of the Minister. He applied for review of that decision to the Refugee Review Tribunal.
The Applicant gave oral evidence at a hearing before the Tribunal on 2 December 2004. The Tribunal gave its decision on 8 December 2004. The Tribunal affirmed the decision not to grant a protection visa.
The Tribunal found that the Applicant claimed that he feared he would be imprisoned and brain washed if he returned to China because he is a Falun Gong practitioner. He also claims that he is at risk because his wife had already been treated by the authorities in that way. The Tribunal was not satisfied that the Applicant had been a practitioner of Falun Gong since the year 2001. The Tribunal formed the view that the Applicant had not commenced any practice of Falun Gong until after he had been placed in immigration detention.
The Tribunal referred to section 91R of the Migration Act. Subsection (3) of that Act provides that:
Any conduct engaged in by a person in Australia must be disregarded unless the person satisfied the Tribunal that he engaged in that conduct for a reason other than for the purpose of strengthening his claim to be a refugee.
The Tribunal was not satisfied that the Applicant is or has ever been a Falun Gong practitioner in China or Australia.
I look at the reasons why the Applicant says that the Refugee Review Tribunal made a wrong decision. First, he said that he was not allowed to hand in additional materials and evidence before the Tribunal made a decision. It appears clear that the Applicant was, in fact, allowed to make submissions after the hearing, and there is no record that he asked for any further time to provide additional material or evidence.
The second ground is that the Tribunal did not allow an adjournment so that a witness, who was overseas, could give evidence. That witness was in the United States and was not expected to return until 10 December. The Applicant said that the witness would have been able to tell the Tribunal that the Applicant was a practitioner of Falun Gong in Australia. The Applicant said that he had met that person in Australia. It is clear that the witness would not be able to tell the Tribunal about whether the Applicant had ever been a member of Falun Gong in China. There is no record of this in the court book. It appears that the Tribunal decided that the evidence of this witness would not have a great deal of weight.
The third and final ground is that the Tribunal preferred the independent country information rather than the Applicant's evidence.
As Mr Reilly of counsel for the Respondent pointed out, the court cannot review the merits of the Tribunal's decision. I refer to The Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is not an error of law let alone a jurisdictional error if the Tribunal makes an incorrect finding of fact. I am referred to the case of Abebe v The Commonwealth, (1999) 197 CLR 510.
The fact is that the Tribunal did not accept the Applicant's evidence. It is up to the Applicant to make out his case before the Tribunal. The Applicant did not persuade the Tribunal that he was entitled to protection as a refugee.
I note that the Applicant is not represented by a lawyer. He does not speak English and he has given evidence with the aid of an interpreter. I have read through the decision and the court book thoroughly. I am aware that if an applicant is not legally represented the court should conduct its own review of the evidence to see if there has been an error by the Tribunal. I cannot see any jurisdictional error that the Applicant has not referred to.
The Applicant's application does not reveal any jurisdictional error by the Tribunal. The Applicant was able to give oral evidence to the Tribunal at some length. The Tribunal was just not satisfied that his evidence supported his claim that he feared persecution as a Falun Gong practitioner. There is certainly no evidence that the Applicant ever practiced Falun Gong in China.
If he is a practitioner of Falun Gong, and the Tribunal does not believe that he is, his practice only started when he was in Australia. The difficulty for the Applicant is that the Tribunal just did not accept his evidence. Assessment of the credibility and persuasibility of an Applicant's evidence is a task for the Tribunal.
There is no reviewable error. The application is dismissed.
The applicant has been unsuccessful in his case. It is the usual practice that the court will make an order for costs in favour of the successful party. The amount of $4500 sought by counsel for the Respondent appears to me to be well within the range of costs provided by the Federal Magistrates Court Rules. I am satisfied that it is a proper figure.
I order that the Applicant is to pay the Respondent's costs fixed in the sum of $4500. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation. The Applicant may be returned to his former detention.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 21 April 2005