SZGNP v Minister for Immigration
[2005] FMCA 1513
•4 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNP v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1513 |
| MIGRATION – RRT – Chinese Falun Gong practitioner – disbelieved by Tribunal – no error found. |
| Migration Act 1958 (Cth), s.483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZGNP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1554 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 4 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A Cox |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1554 of 2005
| SZGNP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review orders in relation to a decision of the Refugee Review Tribunal dated 27 May 2005 and handed down on
30 May 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Court's jurisdiction under s.483A gives it powers under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant should be believed in his claims, nor whether he qualifies for a refugee visa or for any other permission to stay in Australia.
The applicant made his claim for a protection visa on 11 March 2005 shortly after he was taken into immigration detention. He completed his application with the assistance of a solicitor from the Legal Aid Commission of New South Wales, and also received assistance from the same source when appealing to the Tribunal. He has not received legal assistance in bringing his present application.
At the time of the first Court date on 29 June 2005 the applicant was still in detention, and a hearing was fixed for today. In the intervening period the applicant has received advice from an experienced lawyer under the free advice scheme. I do not know the content of that advice, but the Court's records indicate it was given on 9 August 2005.
The applicant today applied for an adjournment of the hearing of his case. He said that he had been released from detention, as I understood, shortly before he filed his amended application on
13 September 2005. He requested further time to engage a lawyer to help him. However I refused the adjournment application. In my opinion, the applicant has had sufficient time to get additional legal assistance, and on my examination of the papers it did not appear to me that there was any prospect that an adjournment could assist the applicant.
In his visa application, the applicant indicated that he had been present in Australia since arriving in July 1998. He indicated that he had entered Australia “on false passport”, and the Department's records seem to have confirm his claimed entry under a different name.
A statement attached to the visa application recounted a history upon which the applicant sought protection from Australia. The applicant claimed that he “became attracted to Falun Gong and started practising it myself” in China after his mother started practising Falun Gong in 1995. In about 1996 he had started discussing political matters in private meetings with his sister and a group of friends, at which the government and the current political situation was criticised. In May 1997 the house where the group was meeting was raided by the PSB, and three of the nine persons present were arrested, including the applicant. He was held in detention for seven days and released with a fine, after the payment of bribes. However, “we started meeting again”, and in about December 1997 he was warned “that the PSB were going to raid the house to get us”. He claimed that from that time he did not return home, and eventually was assisted to obtain “false papers” and to leave China.
The applicant claimed that “after I came to Australia I continued to practice Falun Gong”. He also claimed to have posted his mother “some Falun Gong pamphlets” during 2002, and subsequently to have heard that “the PSB had raided our home and found the Falun Gong pamphlets”. They also found evidence implicating the applicant. As a result of this, his mother was detailed for a month and then suffered a stroke. His sister “also suffered consequences”.
He claimed:
I am afraid to return to China because I am sure I will be arrested if I return. I will be arrested because of my association with the group that criticised the government and because I practice Falun Gong. The Chinese authorities have been cracking down on Falun Gong practitioners of many years now. They detained my elderly mother because of it, so I am sure I will suffer the same fate, if not something worse.
The delegate refused the application on 22 March 2005, and the applicant appealed to the Tribunal. In support of his application his solicitor at the Legal Aid Commission made a submission refuting some errors in the delegate's decision, and made submissions based on a recent US State Department report concerning the treatment of Falun Gong practitioners in China. The submission also addressed the explanation for the long delay before making refugee claims, which the applicant had put forward in his original statement. His explanation was that he had visited a migrant agent in 1999, and paid him $500 for assistance, but nothing was ever done and the applicant gave up contacting him after “some months”. The applicant's solicitor pointed out that that agent had subsequently been found not to be a person of integrity or otherwise fit and proper to give immigration assistance.
The applicant attended a hearing held by the Tribunal on 13 May 2005. The transcript of what happened is not in evidence, but the Tribunal included in its reasons a lengthy description of its questioning of the applicant about all aspects of his claims. The Tribunal also set out some background material concerning the position of Falun Gong practitioners in China.
The Tribunal’s general conclusion under the heading "Findings and Reasons" was:
The Tribunal has formed the view that the applicant lacks credibility and his claims cannot be accepted. The applicant's evidence was inconsistent, contradictory and implausible. I am not satisfied that the applicant has suffered any persecution in China prior to arriving in Australia.
The Tribunal pointed to elements in the applicant's evidence which let it to that conclusion. It also concluded:
Having regard to all the material, I am not satisfied that the applicant attended the meetings as set out in his claims. I do not accept the applicant's sister fled to Canada as a result of the above mentioned meetings and was of adverse interest of the authorities as claimed by the applicant. I am not convinced that the applicant's mother is a dedicated Falun Gong practitioner as claimed. I do not accept the applicant's evidence that he practiced Falun Gong in China or Australia. I am not persuaded that the applicant, on return to China, will practice Falun Gong or involve himself in any political activity such that he will suffer harm from the authorities or anyone else.
The Tribunal rejected the applicant’s claims to have sent leaflets to his mother and that her home was searched and that she was detained.
It expressed the positive opinion:
the applicant fabricated all the above claims in an attempt to create for himself the profile of a refugee.
The Tribunal said it was:
supported in this view by the applicant’s delay in applying for protection from the Australia authorities.
and it did not accept the explanation given by the applicant as sufficient in the circumstances.
I have considered the material before me, and recognise that an assessment of the present applicant's claims was a difficult task for the Tribunal so many years after the events claimed by the applicant. However, the task of assessing the credibility of such claims is given to the Tribunal and not to the Court, and in my view it was open as a matter of law to the Tribunal to arrive at its conclusions. I can find no jurisdictional error affecting its identification and assessment of the applicant's claims. I can find nothing in the procedure followed by the Tribunal which vitiates its decision.
The applicant has filed two applications in the Court, but told me that they had been written by a friend who assisted him while he was in detention, and that he did not understand the grounds which had been set out in them. He was not able to elaborate the grounds. They are expressed in such generality that I am unable myself to give them meaningful application to the Tribunal’s decision.
I reject the general proposition that the Tribunal “failed to deal with the applicant’s sur place claim of persecution by reason of my political opinion”. In my view, the Tribunal did sufficiently identify and address all claims made by the applicant, including those based upon his activities in Australia and the events which he claimed had happened in China after his arrival here.
His application refers to a quoted phrase which is claimed to have been erroneously used by the Tribunal. However, neither the applicant, nor the solicitor for the Minister, nor I, could identify where this phrase was used by the Tribunal, nor understand what the error was which was being alleged.
The applicant’s amended application claims that the Tribunal “failed to take relevant consideration into account”, but the applicant was not able to identify where this occurred.
The amended application also complains that the applicant was not afforded natural justice. Today the applicant referred to three aspects of the hearing before the Tribunal which he was concerned about. The first was that he had attended the Tribunal while he was in Villawood and this meant that it was hard for him to contact the outside and to find evidence to present to the Tribunal. I accept that the applicant may have encountered more difficulties making a refugee application while in detention, but this was the result of his own conduct. In my opinion, it did not give rise to jurisdictional error.
In relation to the procedures required to be followed by the Tribunal, I consider that the applicant was afforded the procedural rights given to him under the migration legislation. I accept the point made by the solicitor for the Minister: that the applicant’s solicitor did not seek an adjournment of the hearing, but presented arguments based on country information and the claims as presented by the applicant. There is no evidence before me that the applicant himself sought further adjournments from the Tribunal at the hearing, nor has he identified what additional information he would have wished to have provided to the Tribunal.
The second natural justice point made by the applicant referred to the course of the hearing at its commencement, where the Tribunal questioned the applicant to discover his involvement in and knowledge of the practice of Falun Gong in China and in Australia. As recounted by the Tribunal, this questioning does not reveal any error of procedure or unfairness by the Tribunal. There is no evidence before me that the hearing proceeded in a manner which might cause a lay observer to have an apprehension of bias on the part of the Tribunal or which might reveal any other element of unfairness in the proceeding.
The third point raised by the applicant concerning procedural fairness was a criticism of the interpreter provided at the hearing. However, the applicant frankly conceded that he did not have evidence to present to the Court to establish that there was unsatisfactory or incompetent interpreter services provided by the Tribunal.
I have considered all the points made by the applicant, and have been unable to find jurisdictional error affecting the Tribunal decision. The decision is therefore a privative clause decision for which relief is barred under s.474 of the Migration Act, and I must dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 19 October 2005
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