SZFXT v Minister for Immigration
[2006] FMCA 1351
•30 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFXT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1351 |
| MIGRATION – Where Tribunal did not give written notice of a matter that did not form the reason or part of the reason for confirming the decision under review. |
| Migration Act 1958, ss.48, 424A Federal Magistrates Court Rules 2001 |
| SAAP v Minister for Immigration [2005] HCA 24 SZEEU v Minister for Immigration [2006] FCAFC 2 SZAKF v Minister for Immigration [2004] FCA 1719 WAJS v Minister for Immigration [2004] FCAFC 139 |
| Applicant: | SZFXT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG692 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 August 2006 |
| Date of Last Submission: | 30 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2006 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondents: | Ms S McNaughton |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG692 of 2005
| SZFXT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China.
She arrived in Australia on 22 August 2004. On 6 September 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 17 September 2004 a delegate of the Minister refused to grant a protection visa and on 20 October 2004 the applicant applied for a review of that decision. The applicant gave oral evidence to the Tribunal on 21 December 2004. On 25 January 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 17 February 2005.
The applicant claimed that she had a well-founded fear of persecution for the Convention reason of religion/membership of a particular social group/political opinion arising out of her association with and practice of Falun Gong in her home state. She told the Tribunal that she was a married woman who ran a beauty salon with her husband. He looked after the management side of the business. She told how in around 1996 she became interested in the practice of Falun Gong and obtained some of the writings of Master Li Hongzhi. She said that she went to hear the Master speak in November 1995.
She practised the Falun Gong exercises after this initiation but in about 1998 she became involved with printing petitions protesting against the arrest of the leadership. She told how she pasted signs up on the walls of public buildings. At a date that she was unable to specify the applicant told the Tribunal that she had been arrested by a group of police officers who took her to the local PSB and detained her. She was handcuffed and moved around the building and kept there for a considerable time.
At about 4 am in the morning of arrest, a group of male police officers came into the room, attached wires tightly to her little fingers and proceeded to give her electric shocks. She says that she passed out as a result of this torture and that when she came to she was allowed to leave the police station because she thought that the policemen were concerned that she might collapse and die. She was arrested again after this and threatened on a number of occasions. Eventually, her then husband told the police that he was responsible for printing the posters and this appeared to satisfy the authorities. The applicant told the Tribunal that nothing serious occurred to her husband as a result of this confession.
The applicant continued to practice Falun Gong in secret thereafter. In 2002 the applicant had divorced her husband and travelled to Singapore. There she met a Singaporean gentleman who was a bus driver. They married. A few months after their marriage the husband discovered that she was a secret Falun Gong practitioner and this caused problems between them. The applicant then applied to travel to Australia. She was originally coming with her husband but cancelled his trip and came on her own. Upon her arrival she made her claim for protection. She told the Tribunal that she had recently met an Australian gentleman who she wished to marry when her second husband in Singapore had divorced her.
During the course of the discussions between the applicant and the Tribunal, the Tribunal made reference to information which it had obtained from the applicant’s visa application to the Australian High Commission in Singapore. This related to information allegedly given to the High Commission that the applicant had made an application to remain permanently in that country on the basis of her marriage to a Singaporean national.
If that information had been the reason or part of the reason for the Tribunal affirming the decision under review, it would have been obliged to provide it to the applicant pursuant to the provisions of s.424A of the Migration Act 1958 (the “Act”). The fact that it had raised the matter with her at the hearing would not have protected the Tribunal from falling into jurisdictional error: SAAP v Minister for Immigration [2005] HCA 24 as interpreted by the Full Bench of the Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2
I have looked carefully at the decision. It amounts to a failure of the Tribunal to be satisfied that the applicant had a well-founded fear for the reasons put forward. The basis of this lack of satisfaction was the incredulity which the Tribunal expressed in relation to the applicant’s story of torture which she alleged took place prior to 1999 when the first serious crackdown on Falun Gong occurred. The apparent untruth which the applicant told the High Commission did not feature in the findings and reasons and although there is some comment relating to her visit to Australia and her treatment of her current husband, this comment arises out of information provided to the Tribunal by the applicant.
The Tribunal also expressed its concern about the credibility of the applicant because of her apparent lack of knowledge of some important aspects of the Falun Gong sect and practices. Because the Tribunal was not convinced that the applicant was a Falun Gong practitioner at all, it did not accept that she had been distributing posters or that as a result of this she had been arrested and tortured in the manner described. These matters of credibility are, of course, matters for the Tribunal “par excellence”.
There is nothing that this court can do to interfere with findings on merits which are based upon readily available evidence or the Tribunal’s assessment of the story told by an applicant: SZAKF v Minister for Immigration [2004] FCA 1719 at [26]. As the full bench said in WAJS v Minister for Immigration [2004] FCAFC 139 at [18]:
“A Tribunal of fact is entitled to reject the evidence, even of an impressive witness, if it rationally considers that evidence to be implausible.”
The application in this matter, which was filed on 21 March 2005, does not assist in identifying any jurisdictional error into which the applicant alleges that the Tribunal fell. It notes that she is a refugee who can meet the refugee criteria and that she fears persecution by reason of her membership of a particular social group. The applicant notes that her fear of persecution is well-founded and refers to the incident of the copying of the posters and the torture that I have previously referred to. But it says no more.
Before me today the applicant raised a matter which might give her grounds to request the Minister to grant her leave under s.48B of the Act to file a new application under s.48A due to certain events that have happened since her arrival in Australia. But apart from that I have heard nothing from her which would lead me to any conclusion other than that this decision is not infected with jurisdictional error and that therefore her application must fail.
I dismiss the application. I order that the applicant pay the respondent’s costs in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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