SZFTL v Minister for Immigration

[2005] FMCA 1711

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTL v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1711

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC as a member of Falun Gong.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S

Randhawa v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 52 FCR 437
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171

Applicant: SZFTL

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 469 of 2005

Judgment of: Emmett FM

Hearing date: 3 November 2005

Date of Last Submission: 3 November 2005

Delivered at: Sydney

Delivered on: 3 November 2005

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Ms B. Griffin, Australian Government Solicitor

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the Application filed on 22 February 2005 is dismissed.

4. That the Applicant pay the costs of the Respondent in an amount of $3498.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 469 of 2005

SZFTL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the First Respondent for dismissal of the Applicant's application filed in this Court on 22 February 2005 (“the Application”) on the basis that it discloses no reasonable cause of action. 

2. In support of that motion, the First Respondent relied on the affidavit of Angela Margaret Manson, sworn 29 August 2005 (“the Affidavit”).  The Affidavit annexes a copy of the application filed on 22 February 2005, together with an unfiled copy of a document entitled ‘Amended Application’, received by the First Respondent at the offices of the Australian Government Solicitor on 22 August 2005. 

3. It is relevant for the Application to briefly identify the procedural history of the matter, and then turn to the claims made by the Applicant before the Refugee Review Tribunal (“the Tribunal”) and the Tribunal's consideration of those claims. 

4. Following the filing by the Applicant of his application on 22 February 2005, seeking judicial review of a decision of the Tribunal handed down on 20 January 2005, the Applicant was directed to file an amended application giving complete particulars of each ground of review relied upon by 12 May 2005.  Those orders were made with the consent of the Applicant on 3 March 2005. 

5. No document was filed by the Applicant in compliance with that direction, and on 20 July 2005, a motion was filed by the First Respondent seeking dismissal of the Applicant's application for failure to comply with those directions.  On 20 July 2005, the Applicant was given a further opportunity to file and serve an amended application setting out grounds and particulars relied upon by 26 August 2005.  Again, no document was filed by the Applicant in accordance with this direction. However, I note that a copy of a document entitled ‘Amended Application’ was received on 22 August 2005 by the First Respondent at the offices of her legal representative. 

6. That document, being the document entitled ‘Amended Application’, discloses no ground and other than the title of the document, namely ‘Amended Application’, does not purport to do so.  It is a document that would appear to be more in the nature of a submission. 

7. The application filed by the Applicant on 22 February 2005 is in the following terms and relies on the following grounds: 

   (1)  A decision that I meet the refugee criteria. 

   (2)  I am a real Falun Gong practitioner and I was tortured by my original government.  In 2000 the authority asked me to stop exercising Falun Dafa.  They even interfered with the management of my company.  In December 2001 I was arrested by the police because I taught other people to practice Falun Dafa.  I was kept in custody centre for two months until I agreed not to practise and transferred Falun Dafa.  I was still in custody after I was released.  In July 2003 I was required to go to Tiananmen Re-education Centre to study.  I was tortured there for seven days. 

8. Plainly, the terms of that application by themselves disclose no reviewable error and essentially relate to factual findings that are the province of the Tribunal.  It is not the role of this Court to conduct merits review and disagreement with the findings of fact of the Tribunal is not necessarily jurisdictional error. 

9. I now turn briefly to the Tribunal proceeding and the events leading up to that. 

10. On 6 September 2004, the Applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  In support of that application, the Applicant provided a statement in which he claimed that he became a Falun Gong practitioner in June 1998, and that in 2000, he was asked by the authorities to stop exercising Falun Dafa. 

11. The Applicant claimed that he received many fine notices from the Taxation Office and Administration Department and that he was arrested by police because he taught other people to practise Falun Dafa. The Applicant claimed that he was kept in custody for two months, until he agreed to no longer practise Falun Dafa.  He claimed that following his release, he remained under surveillance, and an inspector asked to see him every day to ensure that he was at home. 

12. The Applicant claimed that in July 2000, he was required to go to study, where he was kept for one week.  I understand by his statement, that the study was intended to be a re-education from the practice of Falun Gong and required him to stop any activities associated with Falun Dafa. 

13. The Applicant claimed that his past experiences resulted in psychological fear.

14. On 17 September 2004, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) refused to grant a protection visa to the Applicant.  

15. On 20 October 2004, the Applicant lodged an application for review with the Tribunal.  Attached to that review application was a statement in similar terms to that which was before the Delegate.  The Applicant identified a mailing address for service of documents in the review application. 

16. On 8 November 2004, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  The Tribunal went on in that letter, to invite the Applicant to attend a hearing on 21 December 2004 to give oral evidence and present arguments in support of his claims.  That letter was sent to the Applicant at the address for service identified by him in his review application. 

17. The Tribunal received no response to that letter from the Applicant, nor was any further information provided by the Applicant to the Tribunal.  Accordingly, on 23 December 2004, the Tribunal proceeded with its review on the material before it. 

18. The Tribunal accepted that the Applicant was a national of China, but noted that the Applicant had otherwise provided scant details in support of his application for a protection visa. 

19. The Tribunal noted that the Applicant claimed that in 2000, the authorities asked him to stop exercising Falun Dafa and fines were imposed upon his company. 

20. The Tribunal noted that the Applicant did not state how it was that he was found to be a practitioner of Falun Dafa, or what his response to the request by the authorities was.  The Tribunal further noted that the Applicant did not state how he practised Falun Gong at that time. 

21. The Tribunal noted that the Applicant claimed that in December 2001 he was arrested by police because he was teaching Falun Gong to others.  However, the Tribunal noted that the Applicant did not provide any information about the circumstances which led to his arrest.  For example, the Applicant did not say where he was practising, how he was teaching others and how this activity came to be discovered.

22. The Tribunal noted that the Applicant claimed that he was held in custody for two months.  However, it noted that the Applicant did not say where he was held, or whether any charges were laid against him.  The Tribunal noted the Applicant's claim that upon release he had to report every day, however, it noted that the Applicant did not say how long this continued and did not say whether and, if so how, he continued in his practise of Falun Gong after this arrest. 

23. The Tribunal noted that the Applicant claimed that he was sent to a re-education camp in July 2003, but that the Applicant did not state what led to this event. 

24. The Tribunal noted that the Applicant did not explain how, if he was a person of interest to the police, he was able to obtain a passport in December 2003 and permitted to undertake overseas travel in January 2004 and again in August 2004, when he travelled to Australia.  The Tribunal identified as a matter of importance to it, that the Applicant had not explained why in all the circumstances, if he genuinely feared persecution in China, he did not seek to claim protection whilst he was in Germany in 2004. 

25. The Tribunal also noted that the Applicant had not provided any evidence as to whether he practises Falun Gong in Australia, and if so, where and how often. 

26. The Tribunal made the following finding, having considered the material before it:

    “In view of the lack of detail contained in the protection visa application about the applicant's Falun Gong related activity, I cannot be satisfied that the applicant is a Falun Gong practitioner, that he was of interest to the Chinese authorities for that reason or that he would seek to practise Falun Gong if he returned to China.  As I cannot accept the applicant's claims on the facts, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason.”

27. Sections 36 and 65 of the Migration Act 1958 (Cth) (“the Act”) require an applicant who seeks a protection visa to satisfy the Tribunal that all the elements and criteria required are made out. That obligation is on the applicant. The Tribunal is not required to accept uncritically any or all the allegations made by an applicant. (Randhawa v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 52 FCR 437 at 451).

28. The Applicant is taken to have assumed the risk that unsatisfactory features of his material, including omissions, would be noted by the Tribunal without an opportunity to the Applicant to explain or clarify them.  (S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283 at [25]). This is particularly so where an applicant, such as the Applicant in this case, received an invitation to attend a hearing before the Tribunal, and that invitation clearly stated that the information presently before the Tribunal was not sufficient to make orders in favour of the applicant. I refer to WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171, particularly at [46], where the Full Court of the Federal Court said:

    “There would be no unfairness where the person affected knew what he was required to prove to the decision-maker and was given the opportunity to do so.  An appellant cannot complain if his application is rejected because a decision-maker without notice to him has rejected what was put forward.” 

29. It is apparent from the Tribunal's decision, that it gave proper consideration to the Applicant's claims and identified with particularity, the difficulties it had in accepting them. 

30. In those circumstances, it was open to the Tribunal, having considered the evidence as a whole, to conclude that it was not satisfied that the Applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, and that the criteria set out in s.36(2) of the Act is not satisfied.

31. In the circumstances, the Applicant has failed to file any document before this Court, disclosing reviewable error.  It is apparent that the Applicant has had ample time to do so, with two further opportunities provided by this Court, in circumstances where it was pointed out to the Applicant, in the language of the First Respondent in her motion, that his application filed on 22 February 2005 did not disclose a reasonable cause of action. Further, it is apparent, after having considered the Tribunal's reasons in the detail above, that any further opportunity to the Applicant to file an amended application would be futile in the circumstances. 

32. Accordingly, the application filed on 22 February 2005 is dismissed with costs. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  17 November 2005