SZHVF v Minister for Immigration

[2007] FMCA 1198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1198

MIGRATION – Whether applicant received a hearing.

Migration Act 1958, ss.424A , 425

Applicant: SZHVF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3678 of 2005

Judgment of: Raphael FM

Hearing date: 9 July 2007

Date of last submission: 9 July 2007

Delivered at: Sydney

Delivered on: 9 July 2007

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Ms T Wong

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $3,500.00.

3. The name of the First Respondent be amended to Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3678 of 2005

SZHVF

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 1 May 2005.  On 11 May 2005 lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 10 August 2005 a delegate of the Minister refused to grant a protection visa and on 13 September 2005 the applicant applied for review of that decision.  He attended a hearing before the Tribunal on 23 November 2005. 

   
   

   On the same day the Tribunal determined to affirm the decision under review and on 24 November 2005 a copy of the Tribunal’s decision was provided to the applicant by post.

2. The applicant claimed that he was a person to whom Australia owed protection obligations because he was previously a supporter of the democratic movement and supported students in asking for freedom and democracy during the 1989 disturbances.  In 1997 he became a Falun Gong practitioner on the basis that it might improve his health.  He claimed that after 1999 when the Falun Gong organisation was banned he was once detained for four days interrogation.  The applicant claimed that he could not live in China anymore because of fears for his safety and the persecution which people had suffered from the Chinese authorities.

3. At the Tribunal hearing the applicant claimed that he had been a Falun Gong member since 1997.  The Tribunal asked him questions concerning the Falun Gong exercises.  The applicant responded to a question concerning the number of exercises by suggesting there were several tens of basic exercises.  The Tribunal took the view that this was an incorrect response and informed the applicant that there were only five basic exercises.  The Tribunal then asked the applicant to perform what he regarded was the first exercise.  The applicant said he could not do so.  There was a discussion between the Tribunal and the applicant as to why.  The applicant indicated that he had been too busy to keep up with the exercises and had not practiced since he had come to Australia.  The Tribunal suggested to the applicant that he was not a person who had incorporated Falun Gong into his life and the applicant responded that he intended to do this after his life had become stabilised. 

4. The applicant provided the Tribunal with a copy of his passport which indicated that he had spent some time out of the PRC in Thailand and had returned to the PRC in 2004.  The Tribunal pointed out to the applicant that he had not been arrested upon his return.  The applicant informed the Tribunal that he been questioned upon his return from Thailand and the Tribunal noted that this was:

   “The closest the applicant came to conveying a picture as to what would happen to him in the event of returning to the PRC in the reasonably foreseeable future.  He was evidently allowed to live at large and allowed to leave the PRC again.”

5. The Tribunal noted that the applicant had given some evidence concerning his pro-democracy movement past:

   “The Tribunal considered this evidence in the light of the applicant’s educational and occupational background.  He claimed to the Tribunal that he was unemployed in the PRC due to his political and religious problems but later disclosed that he was a farmer [CB74].  The Tribunal took into account, when considering this political activity, the claim made by the applicant that he had been detained twice in the wake of the June 1989 disturbances but he was released and had been allowed to leave the PRC twice in recent years.  The Tribunal took into account independent country information relating to the ability of persons who might be suspected by the PSB of actions inimicable to the State or persons who were wanted by the State and concluded that, as no such action had been taken against the applicant, it was unlikely that he was a person of interest.”

6. The Tribunal’s grounds and reasons for its decision are short.

   “The five Falun Gong exercises are, according to independent information, an indispensable part of Falun Gong adherence.  An appreciation of all five and of their purpose is evidently essential.  On the basis of his evidence at the hearing the Tribunal does not accept that the applicant is, or ever was, or would be mistakenly taken for a Falun Gong practitioner, either by the PRC authorities or by other Falun Gong practitioners, or anyone else.  His performance at the Tribunal hearing with regard to credibility was particularly poor.

   The Tribunal has the same view in relation to the applicant’s political claims.  Even if he had supported the movement as claimed, much time has passed since 1989 during which the applicant has been able to obtain a passport and move freely. 

   The applicant’s return to the PRC in 2004 leaves the Tribunal concluding that he did not have a subjective fear of persecution at that time as no relevant and plausible events had taken place since then and in particular, since the Tribunal does not accept that he was detained after his last return to the PRC, there is no new actual basis for his claim of fear of persecution at present. 

   The Tribunal regards the information in the applicant’s passport as significant information, attesting to an unremarkable relationship with the PRC authorities.

   The Tribunal is not satisfied that the applicant faces a real chance of convention related persecution in the PRC.  His claimed fear of such persecution is not well founded.  He is not a refugee.”  [CB 76]

7. The applicant filed an amended application with this court on 21 March 2006. He gives three grounds of complaint concerning the Tribunal decision. The first is a complaint regarding s.424A of the Migration Act 1958 set out in familiar form. It does not relate particularly to this application. The only information which the Tribunal appears to have used in coming to its views about the applicant is the statements made by the applicant at the Tribunal hearing and the applicant’s passport which he provided to the Tribunal at his hearing. In those circumstances there is no relevant information which does not fall within one of the exceptions to s.424A. I am unable to find that the Tribunal erred in this manner.

8. The second matter raised by the applicant was that the Tribunal had made a decision to refuse his application “just because RRT regarded me as an uncredible person”.  The assessment of credibility is, of course, one of the major responsibilities of the Tribunal.  It forms part of the requirement of the Tribunal to be satisfied that the person falls within the convention definition.  If his story cannot be believed he is unlikely to do that.  There is no jurisdictional error in failing to believe an applicant and basing the Tribunal decision upon that lack of credibility. 

9. The third matter is that “I was only allowed to talk about Falun Gong, not 1989 pro-democracy movement.  However, my claim started from 1989 pro-democracy movement to Falun Gong.”  The applicant did not produce a transcript of the hearing and the statement made in any event appears to run contrary to the references to his political activity found at [CB 74] and referred to by me earlier in this decision.  The Tribunal certainly took the matter into account.  In the absence of some evidence that the applicant did not get a proper opportunity to provide the Tribunal with sufficient information concerning the 1989 activities I am unable to find jurisdictional error.

10. Before me today the applicant raised an entirely new complaint.  He told how on 23 November 2005, the day of the hearing, he arrived about 40 minutes late and then was required to wait for an hour.  He said he was very cold and that he told the Tribunal that he was sick.  He asked the Tribunal to reschedule the hearing date but that was refused.  He told how he was given a blanket and used it to warm himself.  He said that, as a result, he could not express himself very well.  He said he could answer some questions but there were others he could not answer because of his health.  He said he was very sick that day and that it was unfair [to have continued with the hearing].  The applicant said that he could not tell all his ideas at the hearing.  He did not give all the evidence that he had.  The decision was based on the evidence that he did provide and that could not be fair.  In response to Ms Wong’s argument that he had not provided a medical certificate, he said that he was busy and that it was impossible to get a doctor’s certificate.

11. This complaint concerning what occurred at the hearing is the first mention of such a matter even though the application itself was filed on 14 December 2005.  There is an affidavit attached to that application in the following form:

    “1.RRT did not carefully consider my application for a protection visa and made jurisdictional errors.  I therefore lodge my application to be reviewed at the Federal Magistrates Court of Australia.

    2.RRT refused my application straight away on my hearing and gave me the decision on my hearing.”

12. Now I accept that the applicant did not write this affidavit himself.  It is in typed form and the applicant’s English would not allow him to go that far. But he clearly must have told the person who did write the affidavit and the application about what happened at the Tribunal hearing as there is no doubt that this is one of the few cases where the Tribunal gave a decision immediately.  I must ask why, if his illness was so serious, so far as his ability to convince the Tribunal was concerned, that was not a matter that was mentioned to whoever typed out the document.  Someone also typed the amended application and that also does not make any mention of the illness or the request for an adjournment.  The Tribunal’s decision does not make any reference to these matters although it is correct that the hearing started late [Exhibit 1].  In the absence of any corroborative evidence of the applicant’s claims about the conduct of the Tribunal I am unable to be satisfied that the applicant failed to receive a hearing as required under s.425 of the Act.

13. It follows from the above that there are no matters upon which I believe this decision should be reviewed.  I dismiss the application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $3,500.

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

Associate:

Date: