SZHUF v Minister for Immigration
[2007] FMCA 1170
•5 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1170 |
| MIGRATION – Review of Refugee Review Tribunal decision – whether breach of procedural fairness – whether jurisdictional error – whether applicant was given benefit of doubt – whether Tribunal failed to consider the situation at the time of hearing. |
| Migration Act 1958, s.425 |
| Applicant: | SZHUF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3623 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 July 2007 |
| Date of last submission: | 5 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2007 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay First Respondent’s costs assessed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3623 of 2005
| SZHUF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China. She arrived in Australia on 1 May 2005. On 6 May 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 15 July 2005 a delegate of the Minister refused to grant a protection visa and on 8 August 2005 the applicant applied for review of that decision. The Tribunal wrote to the applicant and offered her an opportunity to attend a hearing which she accepted. The hearing took place on 14 October 2005. On 19 October 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 15 November 2005.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of her association and practice of Falun Gong. She tells in her statement found at [CB25]-[28] how she was introduced to Falun Gong by her sister-in-law in 2000 at a time when she was suffering certain medical conditions and held a fear that she might be dismissed from her job. She claimed that once she had commenced Falun Gong exercises her health improved and she was able to undertake her work responsibilities. Unfortunately, so she claims, the family unit that was practising Falun Gong was raided by the police and everyone was taken into the police station for an investigation. She was required to write a letter of repentance promising that she would never practise Falun Gong again. The applicant did not keep to the undertaking she made to the police and some time later she was discovered again and taken into custody. She was required to pay a bond of some $20,000 to secure her release after having been kept in detention for 24 hours without food and water. She lost her job, her husband lost his job and they have had a very difficult financial time since then. Eventually her family rallied around and put up the money to allow her to come to Australia.
The Tribunal questioned the applicant about her life in China and she told it that prior to coming to Australia she had lived for about the past 10 years at the address that she had given in her application for a protection visa. She had provided the Tribunal with her passport which indicated that she had travelled to Malaysia from 6 to 17 July 2004. She told the Tribunal that she had travelled to that country to see whether or not she could stay there but found that she could not. She told the Tribunal that she had had difficulty in obtaining the passport which she believed was due to her having been known as a Falun Gong practitioner. But she agreed with the Tribunal that at the time the passport had been issued to her she had told it she was under a requirement to report to the police on a regular basis because of one of the arrests that she claimed had occurred.
The Tribunal asked the applicant to give it some details about her knowledge and practice of Falun Gong and asked her to perform some of the exercises which were associated with the movement. She appears to have been unable to demonstrate all five of the movements that the Tribunal had expected her to be aware of, stating:
“We don’t know that much - we just sit there like that and fall asleep.”
at [CB72]. The Tribunal expressed to the applicant its concern in accepting that she was truly a Falun Gong practitioner given that she did not appear to have practised Falun Gong much in Australia and did not appear to know very much about it. The Tribunal also expressed concern to the applicant about her ability to obtain a passport and travel to two western countries. The applicant indicated that money may have passed.
The Tribunal’s grounds and reasons for its decision are short. It does not accept that the applicant was or is a Falun Gong practitioner or was involved in Falun Gong activities in China as she claimed. Because she was not such a practitioner the alleged persecution which she claims to have suffered could also not have occurred and thus she was not a person who would have a well-founded fear of persecution for a Convention reason. The Tribunal’s grounds for coming to that conclusion were outlined at [CB74]:
“The Tribunal considers that if the applicant were a genuine Falun Gong practitioner she would be able to tell the Tribunal more about Falun Gong and describe or name or demonstrate the Falun Gong exercises. She cannot do this when asked about the exercises by the Tribunal and stated that this was because she was not “that familiar” with Falun Gong. The Tribunal considers that if the applicant practised Falun Gong in China and in Australia she would be able to tell the Tribunal more about Falun Gong and generally explain/demonstrate the exercises to the Tribunal. The Tribunal also considers that if the applicant were a genuine Falun Gong practitioner and fled from China because she feared persecution there because of her involvement with Falun Gong as she claims she would have resumed regular practice of Falun Gong in Australia. The Tribunal does not accept that the applicant has practised Falun Gong in Australia for the reasons given above. Also in the Tribunal’s view if the applicant were of interest to Chinese authorities and persecuted for Falun Gong activities as she claims she would not have been able to work over the least five years in the employment that she told the Tribunal about and live at her usual address in the family home where she stated she had lived for the last 10 years and where her husband and son still reside.”
The Tribunal also expressed the usual concerns about the ability of the applicant to depart China without difficulty using a passport in her own name.
In her application to this Court the applicant cited four grounds. The first was that the Tribunal did not provide her with procedural fairness. In her affidavit she indicated that the Tribunal did not give her enough time to explain her situation nor did it afford her enough time to make comments in relation to some of the questions put to her by the Tribunal member. If this complaint was to have any prospect of success the applicant would have had to produce to the Court either the tape or the transcript of the Tribunal hearing or both so that the Court could itself assess whether or not the hearing the applicant received was one which complied with the provisions of s.425 of the Migration Act 1958 (“the Act”). But the applicant has failed to do this and in the absence of any evidence the court is left with only the Tribunal’s decision which does not reveal on its face the type of complaint that the applicant has levied at it.
The second point raised by the applicant was that the Tribunal had erred in law when making the decision. This is a canon with a very wide field of fire and without particularisation the Court is unable to assess the allegation with any degree of accuracy. Nothing I have heard from the applicant today, when she repeated her complaint that she had not been given an opportunity to explain herself and stated that the Tribunal did not give careful consideration to her case, served to enlighten me on this point and I am unable to provide the applicant with the relief she seeks based upon this ground.
The third matter raised by the applicant was that she was not given the benefit of the doubt. The difficulty with that assertion is that the applicant must establish that there was some doubt to have been given the benefit of and in this particular case there is no indication in the Tribunal’s rehearsal of the hearing or its findings and reasons that it was ever in any doubt that the applicant had failed to satisfy it she was a Falun Gong practitioner.
In an amended application filed on 24 March 2006 the applicant added a further ground that the Tribunal failed to consider her situation as at the time of the hearing. This complaint is difficult to sustain given that the Tribunal asked the applicant not only about her practice of Falun Gong whilst she was in China but also about her adherence to that philosophy in Australia. The Tribunal asked her to demonstrate the exercises at the hearing. These are all things done at the appropriate temporal point. Perhaps what the applicant really meant was that the Tribunal did not demonstrate a knowledge of contemporary independent country information about the suffering of genuine Falun Gong practitioners. The difficulty the applicant has with making this point is that there was no necessity for the Tribunal to do that because the Tribunal did not believe that the applicant was a genuine Falun Gong practitioner and it came to that view upon evidence put before it by the applicant herself. The independent country information about the current sufferings of genuine Falun Gong practitioners is therefore irrelevant to the Tribunal’s consideration.
I am unable to find any grounds upon which the Tribunal fell into a jurisdictional error in the manner in which it reached its decision in this case. It made a conclusion upon the evidence which was entirely within its mandate and was based upon logical and probative considerations. 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 certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 5 July 2007
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