SZHLC v Minister for Immigration - [2007] FMCA 328

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 328

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

Applicant:

SZHLC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3089 of 2005

Judgment of:

Driver FM

Hearing date:

15 March 2007

Delivered at:

Sydney

Delivered on:

15 March 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3089 of 2005

SZHLC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant and her husband protection visas. Only the applicant wife is a party to the proceeding before this Court. She is from China and had made claims of persecution based upon her practice of Falun Gong. The background to those claims and the Tribunal’s decision on them briefly summarised in the Minister’s outline of written submissions filed on 8 March 2007.

I adopt as background for the purposes of this judgment, paragraphs 2 to 5 of those written submissions:
The applicant is a citizen of the People’s Republic of China who arrived in Australia with her husband on 18 February 2005. On 31 March 2005, the applicant and her husband lodged an application for a protection visa on the basis that the applicant feared persecution for reasons of her adherence to the practice of Falun Gong and that the husband was a member of the applicant’s family unit.
On 8 April 2005, a delegate of the first respondent decided to refuse to grant the applicant and her husband protection visas and on 13 May 2005 they both applied to the Tribunal for review of that decision.
The applicant and her husband were invited by the Tribunal to attend a hearing and did so, only the wife giving evidence. The Tribunal handed down its decision to affirm the delegate’s decision on 20 September 2005.
Tribunal’s decision
The Tribunal found that the applicant had fabricated her claim to be a genuine Falun Gong supporter or practitioner and that she had become or would become construed in China as a Falun Gong supporter or practitioner. It also found that she had fabricated her claim to have been involved in, or organised a demonstration of Falun Gong. For these reasons the Tribunal affirmed the decision under review.
The applicant relies upon her judicial review application filed on 21 October 2005. The application is supported by a letter dated 8 November 2005 from the applicant’s sister-in-law. I accepted that letter as submissions. Two documents are annexed to that letter which also appear in the court book. I received the court book as evidence of what was before the Tribunal.
The applicant asserts that the Tribunal was biased. It is unclear whether she asserts actual bias or merely a reasonable apprehension of bias. It is apparent that the only thing that led the applicant to believe that the Tribunal was biased was the outcome of her review application to the Tribunal. She was disbelieved. She is concerned that the presiding member expressed doubts about her claims at the hearing conducted by the Tribunal on 18 August 2005. I have no transcript of that hearing but the Tribunal’s decision records in reasonable detail what took place. It is apparent that the presiding member had serious doubts about what he had been told by the applicant at the hearing. It is apparent that the presiding member expressed those doubts and gave the applicant the opportunity to respond to them. I see that as the Tribunal member acting properly to provide the applicant with the opportunity to address his concerns. I see nothing in the available material to indicate, let alone establish, that the presiding member had a closed mind. Neither does the available material give rise to an apprehension that the presiding member might not have brought an unprejudiced mind to the case. I reject the claim of bias.
The judicial review application also asserts that the Tribunal made mistakes. I asked the applicant during argument today what mistakes she was referring to. She told me that the Tribunal at the hearing had mistakenly stated that she arrived in Australia in February 2004 whereas she had arrived in February 2005. I do not know precisely what was said at the hearing because I do not have a transcript. However, I note that in its decision record (court book, page 77) the Tribunal states, apparently accurately, that the applicant and her husband arrived in Australia on 18 February 2005. The question of when the applicant and her husband had arrived in Australia does not appear to have been a consideration bearing upon the outcome of the review. The applicant’s sister-in-law in her submissions takes issue with a number of other aspects of the presiding member’s reasoning. However, that is no more than a dispute over the merits of the Tribunal decision. To my mind, the Tribunal decision is a thorough, thoughtful and persuasive examination of the applicant’s claims.
Those claims, as presented at the hearing, were inherently implausible. In short, the applicant, while demonstrating knowledge of the form of Falun Gong exercises, was unable to demonstrate knowledge of the substance of Falun Gong practice. Her claims of paying bribes to continue secretly her practice about which she knew little and then participating in a public demonstration did not make sense. I see no error by the Tribunal in its decision having any jurisdictional significance.
The judicial review application also refers to the applicant having health problems, in particular, depression and breast cancer. It is now about 18 months since that application was filed. The applicant has not presented the Court with any medical evidence of her current condition. When I asked the applicant what her health was like now, she said it was not bad. Her sister-in-law, however, who attended Court, contradicted this and interjected to tell me that the applicant’s health was not good. The applicant presented as a quiet, unassuming and subdued woman. She was, on a number of occasions, interrupted by her sister-in-law to correct matters of detail during the course of her oral submissions. I gained the impression that the applicant’s sister-in-law has a substantial influence over the applicant and her conduct at the proceeding.
I permitted the applicant’s sister-in-law to assist the applicant as a McKenzie friend. That assistance extended to making some oral submissions. The applicant’s sister-in-law in her submissions referred to interpretation problems at the Tribunal hearing and the applicant’s state of mind at that Tribunal hearing. I note that on 22 August 2005 the applicant’s sister-in-law wrote a submission to the Tribunal which addressed those issues. The letter appears at pages 69 to 71 of the court book. Also, on page 72 of the court book is a document apparently prepared by Dr Rae Nelson-Marshall and addressed To Whom It May Concern. The import of both of these documents is that the Tribunal was invited to consider the applicant’s claims favourably and take into account her nervousness and state of health. The Tribunal was also invited to hold a further hearing.
The presiding member considered the sister-in-law’s post-hearing submission. The presiding member refers to it at page 95 of the court book. It is apparent from the reasons read as a whole that the presiding member was not persuaded that the applicant’s nervousness or state of health was an adequate explanation for the implausibility and internal contradictions in her oral evidence. It appears that the presiding member did not consider it necessary to conduct a further hearing. The real question here is whether the Tribunal met its obligations under s.425 of the Migration Act 1958 (Cth). I agree with Mr Smith, for the Minister, that it did. The opportunity afforded by the Tribunal at the hearing conducted by it was a real one. It is apparent from the decision record that there was a reasonably extensive discussion between the applicant and the presiding member about her claims. There was nothing before the Tribunal at the time to establish that the applicant was unfit to attend the hearing. The material submitted subsequently was, on its face, not compelling. I find that there was no breach of s.425.
The applicant also presented some documents to the Tribunal to which the Tribunal gave little or no weight. These are referred to by the presiding member on page 97 of the court book. In particular, the letter from the employer (court book, page 56) was dubious on its face. Further, the Tribunal having rejected the applicant’s claims as fabrication in unequivocal terms was not obliged by the additional written material to revisit that conclusion. I see no error in that approach.
I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision, and the application must be dismissed. I will so order.
I will direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
The Minister seeks an order for scale costs under the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) in consequence of the dismissal of the application. The applicant asserts an inability to pay legal costs. She also asks that her personal circumstances, including her state of health, be taken into account. Those are matters that the Minister’s Department might properly consider in dealing with any decision to enforce the payment of costs. It is open to the applicant to request that her debts to the Commonwealth be written off or waived. That is a matter for her and the Department. The question for me is whether the costs sought by the Minister have been properly and reasonably incurred. I find that they have.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 March 2007