SZHMD v Minister for Immigration
[2008] FMCA 99
•4 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 99 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China based upon his practise of Falun Gong – applicant not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant: | SZHMD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3716 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 4 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Phillips Fox |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3716 of 2007
| SZHMD |
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 decision was handed down on 8 November 2007. The Tribunal affirmed a decision of a delegate of the Minister, not to grant the applicant a protection visa.
The applicant is from China, and had made claims of persecution based upon his practice of Falun Gong. He arrived in Australia on 27 March 2005 and applied for a protection visa on 20 April 2005. A delegate refused that application on 10 May 2005. The applicant sought review of that decision before the Tribunal on 14 September 2005. The Tribunal's decision on that application was set aside by this Court. A differently constituted Tribunal affirmed the delegate's decision on 6 December 2006. That decision was also set aside by order of this Court.
The application before the Court relates to the third Tribunal decision. The applicant attended two hearings before the Tribunal. He was invited to attend a hearing before the Tribunal as last constituted and he did so on 6 September 2007. The Tribunal was concerned about aspects of his evidence, and wrote to him pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) to invite comment on apparent inconsistencies. The letter is dated 6 September 2007 (court book, pages 109‑110). The applicant responded by letter dated 2 October 2007 (court book, page 111). The Tribunal was unpersuaded. The Tribunal was concerned that at the first Tribunal hearing in December 2006, the applicant displayed an almost complete lack of knowledge of the concept of the Falun Gong.
While the applicant's knowledge had improved by the time of the second Tribunal hearing, the Tribunal was still dissatisfied with the quality of that knowledge. The Tribunal was concerned that the applicant had informed the first constituted Tribunal that he did not practise Falun Gong in Australia. His later evidence was inconsistent. The Tribunal concluded that the applicant is not and never had been a genuine Falun Gong practitioner. Accordingly, the Tribunal did not accept that the applicant faced a well‑founded fear of persecution based upon that asserted practice.
The applicant had also made a claim based upon the Chinese one‑child policy. The Tribunal accepted that the applicant had breached that policy upon the birth of a second child some 15 years ago. The Tribunal accepted that the applicant had suffered harm as a result. However, the Tribunal did not accept that the applicant faced a future risk of harm because of that policy.
These proceedings began with a show cause application filed on 3 December 2007. That application was accompanied by an affidavit to which was attached a copy of the Tribunal decision. The affidavit contains legal arguments which I accepted as a submission. I have before me as evidence the court book filed on 8 January 2008. The applicant now relies upon an amended application filed on 31 December 2007. That amended application contained three grounds. The first is an allegation of bias. The second is an asserted failure to provide particulars of independent information and the third is an asserted failure to provide the applicant with an adequate opportunity to respond to the substance of the information.
I explored the grounds in the amended application with the applicant during oral argument. Surprisingly, he asserted that the Tribunal had failed to notify him of its decision on his review application. He appeared to retract that assertion when I pointed out that a copy of the Tribunal's decision was annexed to his affidavit. The applicant was unable to substantiate the assertion of bias.
The references to the independent information are presumably references to the independent information about Falun Gong referred to by the Tribunal on pages 123 to 125 of the court book. There was no obligation on the Tribunal to disclose that information pursuant to s.424A of the Migration Act. The information provided a factual basis for the Tribunal's questioning of the applicant at the hearings on 6 December 2006 and on 6 September 2007. It appears to me from the Tribunal's description of what occurred at that hearing (court book, pages 120‑123) that the applicant was given a reasonable opportunity to address his concerns about his lack of knowledge of Falun Gong.
Inconsistencies in the applicant's evidence, both in relation to the two Tribunal hearings and the protection visa application, were specifically addressed in the invitation to comment sent to the applicant on 6 September 2007 (court book, pages 109‑110). I see no jurisdictional error in the Tribunal's approach.
No arguable case of jurisdictional error is apparent to me on the face of the amended application and affidavit or on the basis of the material in the court book.
Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500, in accordance with rule 41.15(1) and item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 February 2008
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