SZFNP v Minister for Immigration

[2006] FMCA 984

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFNP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 984

MIGRATION − Review of RRT decision − whether Tribunal failed to provide applicant with country information relied upon in accordance with s.424A –    whether Tribunal showed bias in finding applicant not to be credible.

Migration Act 1958, s.424A(3)(a)

SCAA v Minister for Immigration [2002] FCA 668
Minister for Immigration v Jia [2001] 178 ALR 421

Applicant: SZFNP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 172 of 2005

Judgment of: Raphael FM

Hearing date: 6 July 2006

Date of Last Submission: 6 July 2006

Delivered at: Sydney

Delivered on: 6 July 2006

REPRESENTATION

Applicant in Person

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. The Refugee Review Tribunal be joined as the second respondent to the proceedings.

3. Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 2 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 172 of 2005

SZFNP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 8 May 2004.  On 21 June 2004 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.  On 7 September 2004 a delegate of the Minister refused to grant a protection visa and on 6 October 2004 the applicant applied for review of that decision. 

2. The applicant attended a hearing with the Tribunal on 30 November 2004.  On 3 December 2004 the Tribunal determined to affirm the decision of the delegate not to grant a protection visa.  This decision was handed down on 23 December 2004. 

3. The applicant's claim to the protection of Australia is based on his allegation that he is a practising devotee of Falun Gong.  The statement he made to the Immigration Department, which was not resiled from at the Tribunal hearing, says:

   “I am a Chinese citizen.  I practise Falun Gong and I was persecuted by the Chinese Government.  I have practised Falun Gong since 1997.  My family and I are suffered because of my practice of Falun Gong. I found that Falun Gong is very good, it gives me good health and teaches me to be kind and generous to others.  The Chinese government declared that Falun Gong is a cult and prohibit us from practising Falun Gong.

   I was treated unfairly and I didn't have the basic living conditions.  My daughter could not continue her study.  They said only if I stop practising Falun Gong then my daughter could go to school for her study.  The local police station and police always came to our house and our daily life was interfered.  Every day we were threatened and lived with fear.

   Some people helped me to get a visa to Australia after I paid them some money, and escape to Australia.  I will not give up my belief and I will continue my practice of Falun Gong forever.  I wish Australia Government could protect me and give me the approval for my refugee protection visa application.” [sic]

4. When the applicant appeared before the Tribunal he told it that one of his fingers had been broken by the police and he had a scar about one and a half inches long inside his left knee.  He told the Tribunal that this occurred in 1998 and the assault came about because he practised Falun Gong.  He made reference to police attempts to suppress the Falun Gong organisation.  The Tribunal pointed out to the applicant that the banning of Falun Gong only took place in 1999.  Thereafter the applicant suggested that he was unsure if the assault that he referred to had occurred in 1998 or 1999.

5. The Tribunal asked the applicant some questions about Falun Gong practice, in particular he was asked how many movements there are in Falun Gong.  He replied, eight.  The Tribunal informed him that there are only five.  He was asked the colour of the Falun Gong symbol and was unable to respond.  The Tribunal sought information from the applicant about his practice of Falun Gong in Australia and the responses received indicated that the applicant had not really involved himself in that organisation. 

6. In its findings and reasons the Tribunal set out the following conclusions at [CB62]:

   “The applicant in his evidence stated that he had practised Falun Gong since 1997.  He also, for the first time, claimed to have been the victim of a serious assault by the police in China.  When asked when the assault had taken place he replied with certainty that it had occurred in 1998.  However, when it was put to the applicant that Falun Gong was not banned until 1999, he initially stated that 1999 was the "big one".  He later stated in evidence that perhaps the injuries had been inflicted in 1999.  I do not accept the applicant's injuries were caused by the police in China because of his practice of Falun Gong.

   When questioned about his practice of Falun Gong the applicant was unable to correctly answer how many movements are involved in the practice of Falun Gong.  He was also unable to state any of the colours contained within the Falun Gong symbol.  I am not satisfied that the applicant practised Falun Gong in China prior to his arrival in Australia.  I am not satisfied that the applicant is a genuine and sincere Falun Gong practitioner.  As a consequence I do not accept that the applicant or his family were the victims of persecution as claimed by the applicant in his protection visa application.”

   The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations because he did not have a well-founded fear of persecution for a Convention reason.

7. In his amended application filed with the court on 18 April 2005, the applicant makes three points.  The first is that the Tribunal failed to give him complete independent country information which had been used as a reason for affirming the decision of the delegate.  He complained that the Tribunal failed to ensure that he had fully and completely understood the information the Tribunal would use in its decision.  It seems to me that the only information which the Tribunal used was that discussed with the applicant, namely the number of movements in the Falun Gong practice and the colours of the Falun Gong symbol, as well as the fact, now notorious, that persecution of Falun Gong commenced in China in 1999. 

8. All these matters were put to the applicant and I can see no procedural unfairness in the way the matter was dealt with. In any event, there is no obligation to provide this information, which falls within the exception contained in s.424A(3)(a) of the Migration Act 1958.

9. The second complaint raised by the applicant was that the Tribunal did not give him any opportunity to comment on independent country information or other relevant information before the Tribunal made its decision.  That is patently untrue.  The Tribunal gave the applicant every opportunity to explain to it his knowledge and observance of Falun Gong routines.

10. Finally, the applicant argued that the Tribunal was biased in finding that the evidence provided by him lacked credibility.  The applicant has not particularised this allegation of bias.  He has produced no evidence in the form of transcript and today has said no more than that when he told the Tribunal something, the Tribunal suggested that it was wrong.  This would seem to me to be a reference to his telling the Tribunal that there are eight movements in Falun Gong when there are only five. 

11. As Von Doussa J made clear in SCAA v Minister for Immigration [2002] FCA 668 at [36] quoting from Minister for Immigration v Jia [2001] 178 ALR 421:

    “The allegation must be distinctly made and clearly proved.”

    In this case neither criterion was fulfilled.

12. In the circumstances there are no grounds upon which I can find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case.  I join the Tribunal as the second respondent to the proceedings.  I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $4,750.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: