SZHHV v Minister for Immigration
[2007] FMCA 301
•26 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHHV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 301 |
| MIGRATION – Review of decision of RRT – where applicant was concerned that the Tribunal has not put certain matters to him. |
| Migration Act 1958, s.91R(3) |
| SZBEL v Minister for Immigration [2006] 231 ALR 592 SZEEU v Minister for Immigration [2006] FCA 62 |
| Applicant: | SZHHV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2899 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 February 2007 |
| Date of last submission: | 26 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Ms S Sirtes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $4000.00.
The name of the first respondent be changed to Minister for Immigration and Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2899 of 2005
| SZHHV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Tribunal has found that this applicant is a citizen of the People’s Republic of China who arrived in Australia on 11 January 2000. On 16 February 2000 he made an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 February 2000 the delegate of the Minister refused to grant a protection visa. The applicant applied to the Refugee Review Tribunal differently constituted for review of the decision of the delegate. On 26 October 2000 the Tribunal determined that it did not have jurisdiction to review that particular decision.
Exactly what happened thereafter the court has not been made privy to but on 7 April 2005 the department renotified the applicant of its decision to refuse him a protection visa made on 23 February 2000 and on 4 May 2005 the applicant applied for review of that decision. The Tribunal invited the applicant to a hearing which he attended. On 31 August 2005 the Tribunal determined to affirm the decision under review. The Tribunal notified the applicant of its decision on 20 December 2005.
The applicant had originally claimed that he was a Korean. He had entered Australia on a Korean passport. He made claims relevant to his situation in Korea. However, by the time the matter came before the Tribunal under the application for review received on 4 May 2005, the applicant submitted that he was a Chinese citizen of Korean extraction whose grounds for seeking the protection of Australia arose out of his association with and practice of Falun Gong.
The applicant told the Tribunal that he did not practice Falun Gong when he first came to Australia but after a period in immigration detention in 2003 he recommenced the practice which he had commenced originally in China in 1998 before being chased by the police into the mountains. The applicant also commenced the study of Christianity whilst in detention. It was after his release from detention that he made the application for review on the basis of what he claimed was the truth of his situation. The applicant told the Tribunal that he had suffered an assault which resulted in serious brain damage. He produced a certain amount of medical evidence but this did not seem to the Tribunal to go quite as far as the applicant had suggested.
The Tribunal questioned the applicant about his Falun Gong activities and sought to determine whether or not he was a serious practitioner. The Tribunal also questioned the applicant about his apparent interest in Christianity. At [CB 95] the Tribunal says:
“The Tribunal put it [to] the applicant that it did not accept what he was saying as true because he could tell the Tribunal little about Christianity and could not describe the main Falun Gong exercises despite claiming that he was a Falun Gong practitioner and later was attending church as a Christian. Further, the Tribunal put it to the applicant that it was difficult to accept that he was a Falun Gong practitioner because, according to the evidence that he had given the Tribunal, he did not mention that he was a Falun Gong practitioner, or indeed practice Falun Gong in Australia until he was detained in 2003.”
In its findings and reasons which commence at [CB 96] and conclude at [CB 98] the Tribunal deals with the applicant’s history and reluctantly comes to the view that it accepts that he is a Chinese citizen of Korean extraction. The Tribunal also accepts that the applicant practiced Falun Gong in the Villawood Detention Centre but took the view that he was not a genuine Falun Gong practitioner nor was he involved in Falun Gong activities in China as he had claimed. The Tribunal did not accept the other claims made by the applicant relating to the situation in China. The Tribunal accepted that the applicant had obtained a false Korean passport and travelled to Australia with it but did not accept the premise behind the reason for obtaining that passport, namely the applicant’s fear of persecution in China for his Falun Gong activities. The Tribunal justified these findings on the basis of its inability to accept the applicant as a witness of truth because of his failure to be able to explain to the Tribunal even the most elementary tenants of either the Falun Gong philosophy or Christianity.
The Tribunal did not accept the applicant’s claim of memory loss arising out of an incident in December 2004 as an excuse for not being able to explain these beliefs because the Tribunal was unsatisfied that the medical evidence supported such a view. The Tribunal came to the view that s.91R(3) of the Migration Act 1958 (the “Act”) applied to the applicant so that to the extent that the Tribunal was not satisfied that he had engaged in activities in this country other than for the purpose of strengthening his or her claim to be a refugee it was obliged to disregard the evidence of what had occurred in this country.
The applicant in an application filed on 10 October 2005 states that he was denied natural justice because the Tribunal did not put certain findings to him for comment. Those findings related to the genuineness of his Falun Gong associations and the fact that the Tribunal did not accept a number of other statements by the applicant including that it did not accept that he was a witness of truth. I have already read out the extract from the Tribunal’s decision. It seems to me to make it fairly clear that the applicant was told that he was not being believed. To my mind there is therefore very little in the argument put by the applicant. In any event as Ms Sirtes sets out at paragraph 12 to 17 of her helpful written submissions these are matters that were discussed by the Federal Court in SZBEL v Minister for Immigration [2006] 231 ALR 592 where the court indicated that it would not be appropriate to put to an applicant that he or she was lying and could not be accepted as a witness of truth. This is part of the now clear law and there is no obligation on the Tribunal to put to an applicant its thought processes or subjective determinations; SZEEU v Minister for Immigration [2006] FCA 62 and the cases therein cited.
Today before me the applicant complained that the Tribunal did not believe that he had practiced Falun Gong in China and that he did not think that was right. This statement does not unfortunately advance his position any further. The applicant told me that if I was not satisfied that the Tribunal had erred he would appeal this decision, so I can be confident that if I have made an error it will be picked up and remediated by the Federal Court and if not by that court, then by the High Court.
I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.00. I also order that the name of the first respondent be changed to the Minister for Immigration and Citizenship.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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