SZHJE v Minister for Immigration
[2007] FMCA 626
•14 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHJE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 626 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal properly considered applicant’s claims – whether complied with statutory obligations. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A(1); 424A(3)(b); 474; pt.8 div.2 Federal Magistrates Court Rules 2001 pt.1 sch.1 |
| Applicant: | SZHJE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2981 of 2005 |
| Judgment of: | FM Emmett |
| Hearing date: | 14 March 2007 |
| Date of last submission: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2007 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr S. Lloyd |
| Solicitors for the Respondent: | Mr I. Muthalib, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2981 of 2005
| SZHJE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 August 2005 and handed down on 20 September 2005.
The applicant is a citizen of the People's Republic of China (“the PRC”) and claims to be a Falun Gong practitioner.
The applicant arrived in Australia on 13 February 2005 having legally departed from Beijing airport on a passport issued in his own name.
On 21 February 2005 the applicant lodged an application for Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). The applicant provided a statement in support of that application, dated 15 February 2005, in which he stated that, following illness, he was introduced to Falun Gong by a friend and began to practise Falun Gong frequently.
The applicant stated that after 1999 when Falun Gong was defined as, the applicant says, an “evil religious organisation” by the PRC authorities, the applicant was detained and tortured by local police and forced to give up practising Falun Gong. The applicant stated he was forced to write a letter of confession and upon signing the letter was released. The applicant stated that police would frequently inspect him and visit his home and his place of work. The applicant stated that he did not wish to give up practising Falun Gong and, for those reasons, came to Australia.
On 9 March 2005, a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol (“the Convention”).
On 11 April 2005, the applicant lodged an application for review of the Delegate's decision by the Tribunal. The applicant provided no further material in support of his review application. However, the applicant attended a hearing before the Tribunal at which he gave oral evidence.
The Tribunal, in its decision, noted the claims made by the applicant and noted matters that it explored further with the applicant, in particular, concerns that it had about evidence from the applicant; for example, that he did not know the names of exercises and was unable to perform them. The Tribunal noted that the applicant said that he was nervous and had a headache. However the Tribunal noted that those complaints were only made by the applicant after it became apparent he was unable to perform Falun Gong exercises and for that reason the Tribunal did not accept his excuses were genuine.
The Tribunal also explored with the applicant the fact that he was able to obtain a legal passport to enter Australia and that independent information before the Tribunal indicated that if a person in a situation of the applicant applied for a passport then checks were made with the Public Security Bureau (“the PSB”) in his place of residence which would have revealed any adverse record held by the PSB in respect of the applicant.
The Tribunal found that the applicant was not a genuine Falun Gong practitioner and therefore did not accept that he was detained, tortured, forced to give up practising Falun Gong and harassed by the police or the PSB in the PRC as he had claimed.
The Tribunal noted that it was reinforced in its conclusion by the fact that the applicant had obtained a passport in his own name.
Because the Tribunal did not accept that the applicant is a genuine Falun Gong practitioner, it did not accept that if the applicant were to return to the PRC that he would wish to practise Falun Gong but would be prevented from doing so by the authorities. For those reasons, the Tribunal did not accept that there was a real chance that the applicant would be persecuted as a Falun Gong practitioner if he were to return to the PRC now or in the reasonably foreseeable future.
The Tribunal concluded that the applicant had not satisfied it that he met the criteria required for being a refugee and, accordingly, affirmed the decision not to grant a protection visa.
On 17 October 2005, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision and, on 22 February 2006, filed an amended application (“the Amended Application”).
The applicant appeared before this Court this morning without representation, although had the assistance of an interpreter. I note that the applicant participated in the panel advice scheme.
The applicant confirmed that he relied on the amended application, which is in the following terms:
“1. The Tribunal failed to consider my claims.
2. The Tribunal did not believe that I am a member of Falun Gong base on his assumption, without evidence.
3. The Tribunal considered my application with bias against me because he did not believe that I am a member of Falun Gong at the very beginning.
4. The Tribunal did not observe Migration Act 1958 properly in considering my application.
5. The Tribunal said to me that he did not accept that I was a genuine Falun Gong practitioner. While it was clear that I had attempted to learn something about Falun Gong in preparation for the hearing. I believe that the Tribunal made jurisdictional error in making such conclusion.
6. The Tribunal also mentioned: “Having regard to the view I have formed of the Applicant’s credibility, I do not accept that he obtained his passport through bribery or contacts.” I believe that the Tribunal made such conclusion base on assumption not evidence. The Tribunal had bias against me.
7. The Tribunal failed to assess the chance of my persecution on my return to China because of my involvement with Falun Gong.”
The applicant was invited to make submissions in support of each of the grounds or in support of his application generally. The applicant stated that at the Tribunal hearing he was very afraid because, at that time, there were spies from the PRC in Australia and that caused him not to say things that he wanted to say.
The applicant was directed, on 22 November 2005, to file and serve any evidence by way of affidavit in support of his application. None has been filed by him or on his behalf. Moreover, the applicant was unable to identify to what error any evidence would go.
The first respondent tendered a copy of the transcript of the hearing which disclosed that the applicant complained to the Tribunal that he had a headache and was nervous. The Tribunal, in its decision, referred to that evidence and rejected his excuses on the basis that the complaints were made only after it had become apparent to the applicant that he was unable to perform Falun Gong exercises.
The applicant was asked, before the Tribunal closed its hearing, whether there was anything further he wished to say before the hearing was closed. The applicant responded “I just like to ask the Australian government to let me stay here.”
The applicant also stated to this Court that he was forgetful, especially in a situation of conflict such as at a hearing and that when he became nervous he was apt to forget to say and do things. He referred to the example of his inability to remember his telephone number to this Court this morning. Again, those are not matters that demonstrate any error on the part of the Tribunal that go to its jurisdiction in the making of its decision.
The grounds of the Amended Application are unsupported by any particulars, are of a general nature, are formulaic and in terms often seen by this Court. On the face of the grounds they disclose no error capable of review.
Ground 1 complains that the Tribunal failed to consider the applicant's claims. The applicant's claim was that he is a Falun Gong practitioner and that, as such, he fears persecution by the PRC authorities were he to return to the PRC. A fair reading of the Tribunal’s decision makes it quite plain that the Tribunal considered the applicant's claims, explored with the applicant its concerns about his claims and evidence and ultimately did not accept that the applicant's claims were true. The findings and conclusions made by the Tribunal were open to the Tribunal on the evidence in the material before it and for which it gave reasons.
Accordingly, Ground 1 is not made out.
Ground 2 complains that the Tribunal did not have evidence on which it could base its finding that the applicant was not a member of Falun Gong. The Tribunal referred to independent information about the practice of Falun Gong and put to the applicant the difficulties it had about the applicant's evidence in respect of his knowledge and practise of Falun Gong.
Accordingly, Ground two is not made out.
Ground 3 and Ground 6 complain that the Tribunal was biased against the applicant. That is a serious allegation to make and requires evidence. The applicant provided neither particulars nor evidence to support the allegation. A fair reading of the decision does not disclose any suggestion that the Tribunal approached its task other than with a mind open to persuasion.
Accordingly, Grounds 3 and 6 are rejected.
Ground 4 makes a general complaint that the Tribunal did not observe the Act properly in considering the application. Again, there are no particulars to support such a general allegation. The Tribunal identified the applicant's claims, considered the applicant's claims, heard evidence from the applicant, explored concerns it had arising out of the evidence of the applicant with the applicant and made findings and conclusions that were open to it on the evidence and material before it and for which it provided reasons.
The Tribunal complied with its statutory obligations under the statutory regime, both in the conduct of its review and in the making of its decision. In particular, the Tribunal invited the applicant to come to a hearing, in accordance with the statutory scheme. The evidence considered by the Tribunal, including the evidence about the applicant's passport, was information given to the Tribunal by the applicant for the purposes of its review. The transcript discloses that the applicant gave his passport to the Tribunal at the hearing and, in the circumstances, the obligations of s.424A(1) of the Act were not enlivened by reason of s.424A(3)(b) of the Act which excludes from the requirements of s.424A(1) information given by an applicant to the Tribunal for the purposes of its review.
Accordingly, Ground 4 is not made out.
Ground 5 does no more than disagree with the findings and conclusions made by the Tribunal and otherwise seeks merits review, which this Court cannot undertake. Accordingly, Ground 5 is rejected.
Ground 7 complains that the Tribunal failed to assess the applicant's chance of persecution on his return to the PRC because of his involvement with Falun Gong. The Tribunal, after considering the evidence and material before it, did not accept that the applicant is a Falun Gong practitioner and, for that reason, did not accept that there was a real chance of persecution of the applicant were he to return to the PRC. It is clear the Tribunal did assess the applicant's chance of persecution on his return to the PRC in accordance with the claims made by the applicant and the evidence and material before it. Again, as stated above, those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Accordingly, Ground 7 is not made out.
The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere and the proceeding before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 7 May 2007
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