SZHZF v Minister for Immigration - [2007] FMCA 803

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 803

MIGRATION – Review of decision of RRT – where allegations not particularised – where applicant seeks merits review.

Migration Act 1958, ss.91R, 424A

Applicants:

SZHZF, SZHZG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3095 of 2006

Judgment of:

Raphael FM

Hearing date:

23 May 2007

Date of last submission:

23 May 2007

Delivered at:

Sydney

Delivered on:

23 May 2007

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant pay the first respondent’s costs assessed in the sum of $3,500.00.
The name of the first respondent be amended to Minister for Immigration and Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3095 of 2006

SZHZF, SZHZG

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 13 February 2005 and applied for a protection (Class XA) visa on 11 March 2005. There was also an application made by his partner who was considered by the Tribunal on the basis of family membership and who has no separate claims of her own. On 21 June 2005 a delegate of the Minister declined to give the applicant a protection visa and the applicant applied for review to the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal which gave its decision on 13 December 2005. That decision was reviewed by this court and on 22 May 2006 the court set aside the decision by consent and remitted the matter to the Tribunal to be determined according to law. The grounds upon which the matter was remitted involved the failure to comply with the requirements of s.424A of the Migration Act 1958 (the “Act”).
A differently constituted tribunal held a hearing on 8 August 2006 which the applicant attended and on the same day wrote a letter to the applicant [CB114-115] providing him with particulars of information that would, subject to any comments he may make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. Following the provision of each piece of information the Tribunal set out in bold the reason why it considered that information to be relevant. The applicant was requested to respond to the letter by 22 August but he did not do so. On 6 September 2006 the Tribunal determined to affirm the decision under review.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were that he was a Falun Gong practitioner who had fallen foul of the authorities and had been detained on two occasions. His treatment had been more severe on the second occasion and he had to expend a considerable sum of money bribing authorities to release him.
The Tribunal expressed to the applicant a number of concerns which it had about his history. The applicant had told the Tribunal that he was a teacher and was running a private school. The Tribunal was somewhat sceptical that a person in such an important position would be allowed to continue that business after he had been twice detained for what is well known to have been considered anti-social activities. The Tribunal also pointed out to the applicant a number of discrepancies between his various statements including his statements made in his protection visa application and before the first tribunal which it believed indicated that he may not be a person who could be considered a witness of truth.
One of the matters raised by the Tribunal was that the applicant had stated at one stage that he had had to undergo political assistance by the authorities before he was allowed to travel and this was a reason why his departure from China had been somewhat delayed. But the Tribunal had pointed out to him that the passport he produced had a stamp in it which indicated that it was a replacement passport for one that had previously been issued and so at the time of the events that he related he did in fact have a passport.
The concerns which the Tribunal had and which were raised in the 424A letter are discussed by the Tribunal at [CB 136] in its findings and reasons. The Tribunal concluded that the applicant was not a witness of truth:
“On the information before me I am satisfied the applicant has created his claims in order to obtain the visa sought. I am satisfied that he was not a teacher in China, he did not own a school in China, and he was not a Falun Gong practitioner in China. It follows I do not accept he was arrested or detained in China for practising Falun Gong in China.
I am satisfied the applicant did not leave China fearing persecution.”
The Tribunal then went on to assess the applicant’s sur place claim and determined that in the light of its findings about his primary claims the sur place claim could not be considered because of the provisions of s.91R(3) of the Act.
The applicant is not represented although it is clear that someone other than himself completed the application to this court. The application makes a number of claims. The first is that the Tribunal was biased and refused his application based on assumptions rather than evidence and materials. No particulars of the bias alleged are provided contrary to the provisions of the Federal Court Rules. As the respondent says in the helpful submissions provided to me:
“It is rare for a court to find that an administrative decision-maker acted in bad faith, especially where the only thing said to be in support of this is the decision record. SBBS v Minister for Immigration (2002) 194 ALR 749 at [43-48].”
Without any particularisation of the bias I am not disposed to make such a serious finding against the Tribunal.
The applicant then says that the Tribunal failed to consider his application according to s.91R of the Act. 91R is the section of the Act which refers to the definition of “persecution”. The Tribunal did consider the allegation of persecution suffered by the applicant. It did not assess that form of persecution against the criteria in s.91R because it did not believe that it took place and there was therefore no necessity to do so.
The applicant claims that the Tribunal failed to assess his chance of persecution upon his return to China because of his membership of Falun Gong. The Tribunal had found that the applicant was not a member of Falun Gong. The Tribunal was obliged to disregard evidence of the applicant’s connection with Falun Gong formed during his stay in this country because of the view that it formed that he did not engage in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. In my view the Tribunal complied with its statutory mandate in relation to the consideration of the applicant’s claims.
The applicant did not raise any concerns about the s.424A letter and strictly speaking it would be otiose of me to make any further comment upon it but both myself and the solicitor for the respondent have independently considered the letter and I accept the respondent’s submission that it accurately sets out the concerns that the Tribunal had and explains why those concerns are relevant to the decision the Tribunal is likely to make. The Tribunal made the findings that the information pointed to are not any different ones and I am unable to see that the Tribunal has failed to exercise its duties under s.424A in the manner in which the letter was written or in the way the decision was thereafter made.
Before me today the applicant said that he thought the Tribunal had failed to consider his case according to the facts. He felt that the Tribunal did not understand the situation in China and said that if a person was persecuted he would still have an opportunity to go overseas. He explained that even important people managed to leave China and that as he was not so important it was easier for him to depart the country. He felt that the Tribunal had made a very big mistake in its factual findings. But even if the Tribunal was mistaken the mistakes are mistakes of fact which do not to my mind go to a jurisdictional fact and therefore are not the subject of review by this court.
The applicant also told me that he practised Falun Gong every day and he believed that this was the strongest evidence that he was a genuine practitioner. Once again the applicant is really asking this court to entertain impermissible merits review and I regret that I am unable to assist the applicant on this basis. Finally, the applicant told me that if he had given inconsistent evidence it was because of damage that he had received during his persecution in China. This in turn had made him very nervous about going to court or a tribunal. He accepts he may have said something wrong but he believes he could find someone to prove that he was a true Falun Gong practitioner. Once again the matters raised by the applicant are not those that this court can consider. The opportunity which he had to convince the Tribunal of the genuineness of his claim has passed. He had in fact two such opportunities and appears not to have made headway in either.
This application must be dismissed. I order that the applicant pay the respondent’s costs which I assess in the sum of $3,500.00. I also order that the name of the first respondent be amended to Minister for Immigration and Citizenship.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: