SZHOL v Minister for Immigration

[2006] FMCA 1521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHOL v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1521

MIGRATION – Refugee – fear of persecution based on membership of Falun Gong and persecution by the Communist Party – Tribunal not satisfied that the applicant was a Falun Gong member – applicant’s claims before the Court essentially merits review – no jurisdictional error – application dismissed.

Migration Act 1958, ss.422B, 424A, 424A(3)(b), 65, 36(2)

NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: SZHOL

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3294 of 2005

Judgment of: Nicholls FM

Hearing date: 15 September 2006

Date of Last Submission: 7 September 2006

Delivered at: Sydney

Delivered on: 15 September 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. E. Palmer

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3294 of 2005

SZHOL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. I have before me an application filed in this Court on 10 November 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 October 2005 affirming the decision of a delegate of the respondent Minister made on 13 July 2005 to refuse a protection visa to the applicant. 

2. The applicant is a citizen of The People’s Republic of China who arrived in Australia on 1 May 2005.  His claims for a protection visa are set out in his application for a protection visa, which is reproduced in the Court Book (“CB”) at CB 1 to CB 26.  In particular these are set out in an attached statement at CB 27 to CB 29.  His claims are also set out in his application for review reproduced at CB 40 to CB 43, and particularly in an attached statement at CB 44 to CB 46.

3. The applicant attended a hearing before the Tribunal and gave oral evidence to the Tribunal on 21 October 2005.  The Tribunal’s account of what occurred at the hearing is set out at CB 67. 

4. His claims were based on his membership and practice of Falun Gong in China, which he claimed began in 2002. He claimed that he studied books, and performed exercises, and because of his “active involvement” was promoted to “leader” of the Baiyun district in China. He claimed that he was involved in the printing and distribution of foreign media releases about the Chinese Communist Party’s “inhumane practices” against Falun Gong. He claimed that as a result of his activities he was detained for a period of 10 days in September 2003 and was eventually “bailed out” by his family. He claimed that on 29 April 2004 his home was raided, and as he was not there, the police detained his mother instead. He claimed that he was forced into hiding and had to leave China.

5. The Tribunal’s “Findings and Reasons” reveal that the Tribunal was not satisfied that the applicant was a Falun Gong practitioner, based on his ignorance of the “most basis elements of Falun Gong belief and practice”. What is evident in the Tribunal’s account of the hearing, which is the only account before the Court now, is that the applicant was unable to answer a single question correctly about Falun Gong belief and practice.  This is set out in the Tribunal’s decision record at CB 67.3.

6. As such, the Tribunal did not accept that the “wanted notice” handed to the Tribunal at the hearing that it conducted with the applicant was genuine (CB 67.6). This was a notice indicating that the applicant was wanted by the Chinese Public Security Bureau. Further, it did not accept that he or his mother had been detained, or there was any reasonable chance of them being detained in the foreseeable future for reasons of his Falun Gong practice. On this basis the Tribunal affirmed the decision of the delegate not to grant the applicant protection in Australia.

7. The applicant’s original application to this Court, filed on

   
   

   10 November 2005, complains:

   “Seek review of Refugee Review Tribunal’s decision which RRT did not satisfied that I am the Falun Gong practitioner”.

8. The applicant filed an amended application on 6 April 2006 in which he complained:

   “1.Review that RRT is not satisfied that I am not willing be persecute if I go back to China and refused my review.

   2.Review that RRT is not satisfied that I am the person to whom Australia has protection obligation under Refugees Convention and not satisfy the criterion set out in s36(2) of th act.” (errors in original)

9. The application to the Court, as I said earlier, was made on 10 November 2005. Since that time the applicant has attended three directions hearings before Lloyd-Jones FM.  On 13 December 2005 the applicant, assisted by an interpreter in the Mandarin language, as he was on all subsequent occasions, attended at the first Court date. Amongst the orders made was an order that the applicant “must file and serve any additional affidavits by 6 April 2006”. To date nothing has been filed of this nature.  On 25 May 2006 the applicant’s matter was set down for final hearing today. An order was also made for the filing of written submissions with which the applicant also has not complied. On 28 August 2006 the matter was confirmed for hearing today.

10. I note, relevantly, with a view to the claims as stated in the application to the Court, and the orders made by Lloyd-Jones FM, that the applicant was referred to a lawyer on the panel of the Court’s Legal Advice Scheme in March 2006. A report on the Court file reveals that this lawyer sent advice to the applicant by post in April 2006. 

11. At the hearing before me today, Ms. Palmer appeared for the respondents. The applicant appeared in person. The applicant was unrepresented and had the assistance of an interpreter in the Mandarin language.

12. At the commencement of the hearing I endeavoured to ascertain from the applicant that he understood the nature of the proceedings before the Court today.  I explained to the applicant the difference in the role and power between the Tribunal and the Court, and confirmed with him that he was ready to proceed with the matter today.  The applicant stated that when he appeared before the Tribunal he had been suffering from a cold for two days, that he was not in a “good mood” and did not know how to present himself, and was therefore not able to answer questions put to him by the Tribunal.  He also stated that he was confused before the Tribunal at the hearing.  I will return to this issue later in this Judgment.

13. In all, the respondent submits that the applicant’s claims, as set out in his applications to the Court, amount to a request for impermissible merits review. The respondent further notes that this is a case to which s.422B of the Migration Act 1958 (“the Act”) applies, and that the Tribunal complied with its relevant obligations as set out in Division 4 of Part 7 of the Act. The Tribunal wrote to the applicant and invited him to a hearing, which he attended. Further, that there was no information that should have been given to the applicant pursuant to s.424A of the Act, and that the information given by the applicant at the hearing with the Tribunal, upon which the Tribunal subsequently relied, was information that fell within the exception in s.424A(3)(b) of the Act from any obligation pursuant to s.424A(1).

14. I accept these submissions as they apply to the applicant’s case before me now.  The applicant has not been able to put forward, or to add anything, before the Court today which goes to the issue of showing jurisdictional error on the part of the Tribunal.  The applicant’s claims about how he felt at the Tribunal hearing, to the extent that this prevented him from fully presenting his case to the Tribunal, were statements made from the Bar table. I did not understand the applicant to assert any action on the part of the Tribunal that contributed to, or created, this difficulty. Nor did he state that he told the Tribunal of any difficulty. In any event, there is no evidence whatsoever before the Court of that nature such as to go to this issue, let alone to show that the applicant was denied a fair hearing before the Tribunal.  The Court clearly would require evidence of any such failure on the part of the Tribunal before it could proceed in favour of the applicant, see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241.

15. I also note, relevantly, that the applicant has received some legal advice, has had an application on foot before this Court since November 2005, and has attended Court on three previous occasions for directions, which should have prompted the applicant to understand that if he needed the further assistance of a lawyer to present his case to the Court today, that he should have taken steps to obtain such services.  I note that the applicant has made no such complaint before the Court today of any difficulty in obtaining such services. In any event I am satisfied that the applicant has had ample opportunity to have attended to such a matter if indeed he had wished to do so.

16. In the absence of any evidence, therefore, the complaint based on what allegedly occurred before the Tribunal does not succeed before the Court.  I am satisfied that the applicant would have had ample opportunity to have obtained advice on how such a complaint could have been put to the Court in a proper evidentiary context.

17. The relevant facts to support an application to the Tribunal do need to be supplied by the applicant himself in as much detail as necessary to establish the facts, and to satisfy the Tribunal that the applicant must be granted a protection visa.  It is for the applicant to make out his case (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559). The relevant statutory regime, that is, ss.65 and 36(2) of the Act, provide that a decision maker, such as the Tribunal, must reach a requisite level of satisfaction that an applicant meets the criterion for the grant of a protection visa as set out in s.36(2) of the Act; that is, that the applicant meets the definition of refugee pursuant to Article 1A(2) of the Refugee Convention.

18. In the case before me now, on the only evidence of what occurred at the hearing the Tribunal conducted with the applicant, the Tribunal stated that the applicant could not answer a single question correctly about Falun Gong.  Given that his claims centred around his being a Falun Gong practitioner in China, it was open to the Tribunal to find that he was not, and never had been, a Falun Gong practitioner.  The applicant’s subsequent claims of having been detained for reason of his Falun Gong practice were consequently also not accepted. 
    The Tribunal’s finding that he would not face persecution on return to China was clearly open to it, and it gave reasons.

19. Beyond the complaint relating to what occurred at the hearing, which I have dealt with above, the applicant’s complaints in his amended application seek merits review before this Court. This is, of course, a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

20. There is nothing in the material before me to show any error on the part of the Tribunal, let alone jurisdictional error. On this basis the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  24 October 2006