SZGVH v Minister for Immigration
[2007] FMCA 220
•14 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGVH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 220 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Falun Gong activities – disbelieved by Tribunal – no jurisdictional error found. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
| Applicant: | SZGVH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1964 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 14 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms K Morgan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1964 of 2005
| SZGVH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 25 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 June 2005 and handed down on 23 June 2005. The Tribunal affirmed a decision of a delegate made on 19 February 2005, refusing to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8). The Court’s jurisdiction under s.483A is the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but the Court’s powers are subject to limitations under Part 8 of the Migration Act which have the effect that I do not have power to set aside the Tribunal’s decision and to send the matter back, unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he is qualified for a protection visa or any other permission to stay in Australia.
The present applicant arrived in Australia on a temporary business visa in December 2004, and lodged an application for a protection visa on 10 January 2005. His application indicated that he was assisted by a person who was not a migration agent. It attached a brief statement in Chinese, with a translation as follows:
Influenced by my mother, I am practising Falungong. My mother has practised Falungong for a long time and her health situation has been improved a lot. My mother is a great mother, she participated the sitting movement in [District] to protest the cruel suppress of Falungong members by the Communist Party. At the same time, my name was listed in the government’s propaganda booklet of anti‑Falungong.
My mother and I were arrested due to our behaviour. My mother was jailed for fifteen days and I was jailed for one year. In prison, they forced me to sign the paper to give up Falungong and I rejected. They beat me with the electricity rod. I was tortured inside and one year later, I was released and I decided to go overseas. I spent a long time to collect money to pay the necessary service fee.
After I arrived in Australia, I found Falungong members held activities outside the Chinese Consulate and I told them I had practised Falungong for a long time. They told me Australia government supported Falungong and I was happy to know I could practice Falungong freely in Australia.
Due to the situation in China and the definition of refugee, I am sure I will be persecuted once I go back to China. I sincerely wish my application for a protection visa can be approved.
No details of these claims were ever provided to the Department nor to the Tribunal in writing, and no corroborative evidence was ever presented.
The applicant attended a hearing by the Tribunal to which he was invited on 1 June 2005. A transcript of the hearing is not in evidence before me, but the Tribunal gives a brief description in its statement of reasons. The Tribunal questioned the applicant about how he had come to Australia. It tested his claim to have been a practitioner in Falun Gong by questioning his knowledge of its doctrines and exercises. It also put to the applicant a finding by the delegate that the applicant would not have been able to obtain a passport if he were on a “watch list” and had been imprisoned for Falun Gong activity. The Tribunal said that the applicant “had no comment on the finding”.
The Tribunal’s reasons for affirming the delegate’s decision were given briefly:
As I said to the applicant at hearing, a person who has beliefs which he is not willing to renounce, thereby suffering a year in detention and physical abuse will be able to talk about those beliefs at least to some extent. The applicant’s ignorance of even simple things about Falun Gong beliefs is not consistent with his claim to have suffered a year’s detention for reason of his refusal to renounce Falun Gong practice.
Moreover, a person who has practiced regularly with a practice group for nearly 7 years, including in Australia would be able to name the exercises – or at a minimum at least one of them – and to demonstrate the first exercise. The applicant’s inability to do either satisfies me that he is not, as he claims, a practitioner of Falun Gong.
I share the view of the Delegate that a person in the position claimed by the applicant would not have been able to obtain a passport to travel to Australia. Absent any satisfactory explanation as to how he did so in his claimed situation, I find that he was of no interest to the Chinese security authorities.
Accordingly, I am unable to accept that the applicant has been detained for reason of his practice of Falun Gong, or that he has been beaten or tortured for that reason or that he is on a “watch list” or that there is a real chance of any of these things happening to him for that reason if he were to return to China in the foreseeable future.
I find that there is not a real chance of the applicant suffering harm amounting to persecution in China for a Convention reason if he were to return there in the foreseeable future.
I find that the applicant does not have a well founded fear of persecution in China for reason of his political opinion, real or imputed, his membership of a particular social group or for any other Convention reason if he should return there in the reasonably foreseeable future.
I have considered the Tribunal’s procedures and reasoning, and am unable to identify any jurisdictional error affecting its decision.
The applicant’s application contained grounds which were repeated in an amended application. He has not filed a written submission explaining these, nor did he have any submissions to make to me today.
The grounds set out in the amended application are:
1.RRT and DIMIA made a mistake by not addressing the applicant’s specific claim of persecution owning to his participation in Falun gong and unfairly made the unfavourable decision based on the so-called country’s information.
Particulars
a.The tribunal took the following irrelevant considerations into account in the exercise of the power: The general country information without consideration of the facts of this case.
b.The tribunal failed to take into account the following relevant consideration into account in the exercise of the power: to independently investigate the Applicant’s particular situation due to religious activities.
2.RRT and DIMIA failed to look at the fact fairly and reasonably and ignored the truth that the applicant would face a real chance of persecution upon returning to China. The applicant is citizen of China. If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
3.RRT and DIMIA’s ground for rejection is neither sufficient nor serious, which disregarded the whole evidence provided by the applicant regarding to the current situation in China.
Particulars
a.RRT applied the wrong test. The tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test.
b.The tribunal has failed to ask appropriate questions and appropriately categorise the basis of the Applicants’ suffer Convention based persecution.
I have considered each of the arguments presented in these grounds, and consider that they are lacking in any substance. The Tribunal did address the applicant’s claims, it took into account clearly relevant considerations, and it was not obliged further to investigate his claims (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], and WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]). To the extent that the applicant invites the Court to consider the merits of his refugee claims, this is a task which is not within this Court’s jurisdiction.
For the above reasons, I consider that the Tribunal’s decision is a privative clause decision, and the application should be dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 28 February 2007
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