SZHTC v Minister for Immigration

[2007] FMCA 671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 671

MIGRATION – Review of Refugee Review Tribunal decision – where applicant gave evidence that he was a Falun Gong practitioner – whether the Tribunal’s decision was biased – whether applicant was entitled to be provided with draft reasons – whether the Tribunal had erred by using irrelevant evidence.

Migration Act 1958 (Cth), s.424A

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Dranichnikov v Minister for Immigration [2003] 197 ALR 389
Abebe v Commonwealth [1999] 197 CLR 510

Applicant: SZHTC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3559 of 2005

Judgment of: Raphael FM

Hearing date: 20 April 2007

Date of last submission: 20 April 2007

Delivered at: Sydney

Delivered on: 20 April 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,000.00

3. The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3559 of 2005

SZHTC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 30 April 2005. On 6 May 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 14 July 2005 a delegate of the Minister refused to grant a protection visa and on 15 August 2005 the applicant applied for review of that decision. The applicant attended a hearing before the Tribunal which on 13 October 2005 determined to affirm the decision not to grant the protection visa and handed its decision down on 8 November 2005.

2. The applicant’s grounds for claiming that he was a person to whom Australia owed protection obligations was that he was a Falun Gong member and the Head of his village. In 1999 he had gone to Beijing to participate in Falun Gong activities. He believed that the Falun Gong philosophy was good for his health. He was investigated by a party cadre in 2000 and was taken away to the local PSB office for self‑criticism. He claimed he suffered mental and physical persecution from the police and although he was released within a few days, he was beaten and insulted whilst in their custody.

3. He claimed that the police became interested in him again in 2005 and decided that he should escape from China and thus he arranged to come to this country and claim refugee status. At the hearing before the Tribunal, the applicant expanded his story somewhat. He explained to the Tribunal that he had worked in his home town in the animal feed wholesale business for some years before coming to Australia but that his practice of Falun Gong was somewhat limited because he was very busy. He told the Tribunal he watched videos and read Falun Gong books.

4. The Tribunal asked him to describe the exercises but he found that difficult because he had not done them for some time. The Tribunal asked him some further questions concerning Falun Gong including a request for him to draw the symbol which he also had difficulty with. The applicant told the Tribunal that he had not practised Falun Gong in Australia since arrival because he had not had time to do this because of his work. The Tribunal discussed the applicant’s evidence with him and indicated that it was not impressed and it had difficulty in believing that he was a genuine Falun Gong practitioner, particularly because during the period between 2000 and 2005 nothing appeared to have happened to him and he obtained a passport in 2003.

5. The Tribunal told the applicant that it did not believe that he was a genuine Falun Gong practitioner. In its findings and reasons the Tribunal repeats the view that it had come to concerning the applicant. At [CB65] it says:

   “The Tribunal considers that if the applicant were a genuine Falun Gong practitioner he would be able to tell the Tribunal more about Falun Gong and describe or name the Falun Gong exercises.  He could not do this when asked about the exercises by the Tribunal and stated that this was because he had not practised Falun Gong for a long time because he was not able to practise in China because he was busy and because authorities were “very strict” in their opposition to the practise of Falun Gong.  The Tribunal does not accept this explanation as true; it does not accept that he did not practise Falun Gong in China because of the opposition to it from the authorities.  The Tribunal considers that if the applicant practised Falun Gong in China as he claimed in 1998 to 2000, he would be able to tell the Tribunal more about Falun Gong and generally explain the exercises to the Tribunal.  The Tribunal also considers that if the applicant were a genuine Falun Gong practitioner and fled from China because he feared persecution there because of his involvement with Falun Gong as he claims he would have resumed his practice in Australia, despite being busy with his work, which he agrees he has not done.”

6. The Tribunal came to the views which have been set out above after considering the evidence provided by the applicant and questioning him upon it. It appears to have conducted an inquisitorial hearing in accordance with the Migration Act and on the face of the reasons for decision, I am unable to see where there might be a jurisdictional error. Before me today, the applicant said that he did not feel that the Tribunal had considered his case properly because it was biased against him and it did not understand his application. The applicant provided no grounds upon which this allegation of bias could be supported and in view of the clear dicta of the superior courts, without full particularisation and some evidence, I am unable to accept this submission.

7. As to the submission that the Tribunal did not understand his application, this again was not particularised. In my view, the applicant made his application fairly clear in his written statement and in the discussions with the Tribunal. The nature and details of that application were dealt with by the Tribunal in its reasons for decision. The applicant also told me that he believed that the decision had been made without enough evidence of the fact that he was not a Falun Gong practitioner. If the applicant had said this in relation to proceedings in a court I would have suggested that he was attempting to “reverse the onus”. Of course, there is no onus in relation to a Tribunal hearing but the Tribunal must be satisfied that the applicant is a person to whom Australia owes protection obligations and the Courts have consistently said that the responsibility for providing the Tribunal with sufficient evidence to enable it to be so satisfied belongs to the applicant: Applicant S214/2003 v RRT [2006] FCAFC 166 [26]- [28]; Dranichnikov v MIMA [2003] 197 ALR 389 [78] per Kirby J; Abebe v Cth [1999] 197 CLR 510 at [187] per Gummow and Hayne JJ.

8. The applicant submitted that the Tribunal had decided his case according to assumptions rather than evidence. This to me is no more than another way of arguing that the Tribunal did not produce its own evidence to contradict that put up by the applicant, which it is not the duty of the Tribunal to do. The applicant then argued that the Tribunal failed to comply with s.424A because it did not write to him before the decision was handed down. Ms Radich in her helpful submissions possibly misunderstood this statement to be one that the applicant did not receive notice of the handing down.

9. I do not think that this is what the applicant was saying. I think that what he was saying was that he was entitled to be provided with some form of draft reasons which he could then argue against before the Tribunal made a final decision. This is something which is commonly done in civil law countries but not considered to be a requirement of procedural fairness under the common law. The applicant argued that because of the failure to notify him of the Tribunal’s grounds for not accepting his evidence, he lost the chance to explain and obtain a fair judgment.

10. But as I have made clear before, the responsibility lies upon the applicant to satisfy the Tribunal of his claims and in this particular case it is clear that he had an opportunity to convince the Tribunal that those claims were genuine when the Tribunal put to him that it did not believe that he was a genuine Falun Gong practitioner. In fact, given that statement by the Tribunal it is hard to accept that the applicant would have benefited in any way had he been given a copy of some draft reasons which would have made the same point.

11. Finally, the applicant submitted that the Tribunal had fallen into jurisdictional error by using irrelevant evidence which was out of date. This is actually one of the minority of cases in which the Tribunal did not bring into play any independent country information but decided the application purely upon its views as to the credibility of the applicant. This submission has therefore no weight. I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it made its decision in this case.

12. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $3,000.00. I order that the name of the second respondent be amended to the “Minister for Immigration and Citizenship”.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  20 April 2007