SZIMY v Minister for Immigration

[2006] FMCA 1452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIMY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1452

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – asserted breaches of ss.91R(3) and 424A of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A

SZHAY v Minister for Immigration & Anor [2006] FMCA 261
SZHFE v Minister for Immigration (No 2) [2006] FCA 648

Applicant: SZIMY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG773 of 2006

Judgment of: Driver FM

Hearing date: 3 October 2006

Delivered at: Sydney

Delivered on: 3 October 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms V McWilliam

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG773 of 2006

SZIMY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The decision was handed down on 21 February 2006.  The applicant filed a show cause application in this court on 15 March 2006. 

   
   

   That application asserted notification of the RRT decision on 2 March 2006.  I find that that application was filed within time. 

2. The applicant is from China and had made claims of persecution based upon her practice of Falun Gong.  I adopt as background for the purposes of this judgment paragraphs 2 and 3 of the Minister’s written submissions, filed on 26 September 2006:

   The applicant is a citizen of the People’s Republic of China (‘China’).  Before the RRT, the applicant claimed to have a well-founded fear of persecution by reason of her practice of Falun Gong.  She claimed to have been monitored, questioned and threatened by officials, and that her mother was a Falun Dafa practitioner who had been detained by officials in the past.  The applicant claimed to fear that she would be detained and imprisoned if she returned to China.

   History of proceedings

   The applicant attended a RRT hearing on 21 December 2005 and the RRT handed down its decision on 21 February 2006. 

3. Essentially the applicant failed before the RRT because she was not believed. The RRT did not accept that the applicant was a Falun Gong practitioner. The show cause application filed on 15 March 2006 and the affidavit that supported it asserted a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) as well as bias and other grounds.

4. When the matter first came before me on 19 April 2006 it was not apparent to me whether the application disclosed an arguable case. 

   
   

   I listed the matter for hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and on 14 June 2006 I conducted a show cause hearing. As a result of that hearing I identified two issues that required, or potentially required a response from the Minister. The first was whether there had been a breach of s.424A of the Migration Act. The second was whether there had been a breach of s.91R(3) of the Migration Act, by reference in particular to the presiding member’s reasons for decision on pages 70 and 71 of the court book.

5. I ordered that the Minister show cause why relief should not be granted in relation to those issues. In relation to s.91R the order was conditional upon the filing of an amended application. That condition was met by the filing of an amended application on 14 July 2006.

   
   

   As well as asserting the breach of s.91R that amended application continues to assert bias. Somewhat unhelpfully, it does not make any assertion in relation to s.424A. However, the applicant made clear in her oral submissions today that she does continue to assert a breach of that section. She also asserts that the RRT proceeding was unfair and that the RRT failed to take into account all of her submissions.

   
   

   She further asserts that the RRT did not have available to it enough evidence to refuse her protection visa application.

6. Rule 44.13(2) of the Federal Magistrates Court Rules presents an obstacle to the applicant’s expanded attack on the RRT decision.

   
   

   In any event, with the exception of the issues in relation to ss.91R and 424A in respect of which the Minister was ordered to show cause, there is no substance to the attack upon the RRT decision. There is no evidence to support the allegation of bias. The only evidence I have before me is the court book filed on 10 April 2006. There is nothing in the available record that would indicate that the presiding member approached the case with a closed mind. Neither is there anything that would cause a fair-minded observer to apprehend that the presiding member might not have had an open mind.

7. It appears from the record that the applicant’s claims of persecution were considered.  It does not appear that any relevant considerations were overlooked.  It was not for the RRT to gather evidence to reject the protection visa application.  It was for the RRT to attempt to achieve a state of satisfaction in relation to the review application on the basis of the available material.  That is what the RRT did. 

   
   

   The applicant made short oral submissions in relation to the asserted breaches of ss.91R and 424A. Those submissions did not, however, advance the consideration of those issues any further than the bare details set out in the amended application and in the earlier application.

8. The asserted breach of s.91R(3) of the Act is dealt with in the Minister’s submissions in paragraphs 11 to 17. I agree with those submissions and adopt them for the purposes of this judgment. :

   The first respondent submits that either s.91R(3) of the Act is not enlivened, or alternatively, if it was, it was not breached.

   Section 91R(3) of the Act is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution: SZHFE v Minister for Immigration(No 2) [2006] FCA 648 at [30]-[31]; Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 at [25].

   In the present case, the RRT relied on the applicant’s ‘conduct’ in Australia to reinforce its view that she was not a genuine Falun Gong practitioner.  That is, the RRT relied on the applicant’s lack of action since arriving in Australia, namely the applicant’s failure to make contact with any Falun Gong practitioners, or to join any public practice sessions (court book, page 70.2).

   The RRT concluded that the applicant’s inactivity was because she had negligible interest in Falun Gong (court book, page 70.7).

   As it cannot be said that the applicant’s inactivity was ‘conduct in Australia to support a claim to have a well-founded fear of persecution’, s.91R is not enlivened.

   Alternatively, if s.91R(3) is found to apply, then the RRT member found that the applicant’s inactivity in Australia established that she had negligible interest in Falun Gong (court book, page 70.7). It is implicit from this finding that the RRT member was satisfied that the applicant’s conduct in Australia was not engaged in for the purpose of strengthening his claims to be a refugee.

   Accordingly, the RRT member was not obliged to disregard the applicant’s conduct in Australia, and, in taking such conduct into account, did not breach s.91R(3) of the Act: c.f. SZHAY v Minister for Immigration & Anor [2006] FMCA 261 at [38] – [40].

9. This was not a case of an applicant seeking to rely upon conduct in Australia to support a protection visa claim. Rather, it was a case of the RRT reaching conclusions from the available material about a lack of activity in Australia. Section 91R(3) had no relevant operation in these circumstances because, even if the applicant’s inactivity was “conduct”, it was plainly not conduct engaged in to support protection visa claims.

10. The Minister’s written submissions deal with the asserted breach of s.424A in paragraphs 8 through to 10. Subject to my comments which follow, I agree with and adopt for the purposes of this judgment, those submissions:

    The applicant’s complaint in relation to s.424A of the Act is that the RRT based its findings on the information, or lack of information, contained in the applicant’s application for a visa without giving the applicant particulars of the information, ensuring the applicant understood why it was relevant to the review, and inviting the applicant to comment on it.

    The first respondent relies on its previous submissions, dated 5 June 2006, where it submitted (at [8]) that the RRT’s decision to affirm the decision under review was not based on the information contained in the applicant’s application for a protection visa; rather, the RRT’s decision was based on its dissatisfaction with the applicant’s evidence at the RRT hearing, which was evidence given to the RRT for the purposes of the application and therefore evidence which fell within the exclusion of s.424A(3)(b) of the Act. Accordingly, no obligation arose under s.424A(1).

    To put it another way, the obligation under s.424A of the Act is to give to the applicant particulars of information that the RRT considers would be the reason or a part of the reason for affirming the decision that is under review and to invite the applicant to comment on it.  Thus, the obligation arises only if the information is taken into account in an adverse manner by the RRT.  Even if it is found that the RRT took into account information contained in the applicant’s protection visa, there is nothing to suggest that the RRT used such information in a manner adverse to the applicant’s interests. 

11. The factual conclusion reached by the RRT in this case is set out on page 71 of the court book.  The presiding member said:

    In sum, the Tribunal is not satisfied that the Applicant has any association whatsoever with Falun Gong, in China or Australia; that she has ever practiced it, privately or publicly; or that she or her mother has ever suffered any harm as a result of any actual or perceived link with Falun Gong. 

12. It is apparent that that conclusion is essentially based upon what occurred at the hearing.  The RRT’s reasoning is set out in the last paragraph on page 69 of the court book, extending to the first two lines on page 70 of the court book:

    The Tribunal is not satisfied that the Applicant is a Falun Gong practitioner, for the following reasons.  The Applicant claimed to have started Falun Gong practice in 2002 or 2003, having learned it from her mother.  Yet her level of knowledge does not conform to that of a genuine practitioner.  She provided some information, in a rehearsed manner, on matters such as the name of the Falun Gong text, the number of exercises, the key precepts and the timing of the PRC Government crackdown on the movement.  However, the Applicant was not familiar with any of the individual exercises or their features (such as their name or the verses which accompany their performance); key Falun Gong concepts; or key visual symbols.  Asked as to why she had referred to Falun Gong as a religion, the Applicant not only failed to grasp that the movement does not conceive of itself as a religion, but rushed in to show her knowledge of the precept ‘Truth, Compassion and Forbearance’.  It was apparent that the Applicant had learned some expected questions for the hearing, but that these were not underpinned by the familiarity which comes with actual practice of and genuine commitment to the belief system.

13. The applicant herself in her oral submissions this morning confirmed that she was asked at the hearing to demonstrate Falun Gong movements and was asked questions about her knowledge of Falun Gong.  I find that it was her evidence at the RRT hearing which was determinative of the outcome. 

14. The RRT’s conclusions were reinforced by the applicant’s conduct in Australia, as appears from the first two complete paragraphs on page 70 of the court book.  Again, the presiding member’s concerns about the inactivity of the applicant in Australia appears to me to have derived from the evidence given by the applicant at the hearing conducted by the RRT.  There is a curious passage in the RRT’s reasoning in the last paragraph on page 70 of the court book, extending over onto page 71 of the court book:

    The Tribunal has also considered the Applicant’s claims with respect to her claimed practice and experiences in China.  It is her claim that she had to practice in private (for her safety), although in Chengdu there was some scope to practice in a secluded part of a park, under the watchful eyes of 610 Office officials, who did not make arrests during daylight hours.  It is also her claim that her mother had been imprisoned in the past; that from January 2005, 610 Office officials started to monitor and on some occasions questioned and threatened the Applicant herself; that her husband in turn mistreated her; and that she was warned by a friend that she would be arrested soon.  The Tribunal finds nothing intrinsic in these accounts that casts doubt on its finding above, that she is not a Falun Gong practitioner.  It follows that the Tribunal is also not satisfied that these accounts of past Falun Gong-related activities and incidents of harm have any foundation in truth at all.  The Tribunal does not accept any of the Applicant’s Falun Gong-related claims, including (but not limited to) her claim that her mother is a practitioner, that her mother was subject to the adverse interest of the authorities, that the Applicant’s move to Chengdu had anything to do with Falun Gong, that she engaged in Falun Gong activities (such as discreet practice in a public park and reading the relevant text) whilst there and that she was ever approached or warned regarding such practice.

15. The Minister’s counsel was prepared to concede that the discussion in that paragraph related, at least in part, to the applicant’s protection visa claims that are set out on pages 19 to 22 of the court book.   She did, however, note also that there was a discussion about those claims at the hearing, as appears on page 65 of the court book. The presiding member appears to have adopted the unusual course of considering the applicant’s protection visa claims as set out in the protection visa application after having dealt with her oral evidence at the RRT hearing.  It appears from what the presiding member says in that paragraph that the protection visa claims had no bearing upon the outcome other than to reinforce the view the presiding member had already formed, that the applicant was not a Falun Gong practitioner. 

16. Although the approach adopted by the presiding member was unusual I see nothing unlawful in it.  It was a case of bundling up whatever may have been left over from the earlier consideration of the applicant’s oral evidence.  The applicant’s written claims were not such as to persuade the presiding member to a different view to the one he had already formed on the basis of the applicant’s oral evidence.  The information was not, therefore, determinative of the outcome. 

17. I find that there was no breach of s.424A and nor was there any breach of s.91R(3) of the Migration Act in this case. No other jurisdictional error has been established or is apparent to me. The RRT decision is therefore a privative clause decision and the application must be dismissed. I will so order.

18. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,000.  The Minister has properly sought a lesser sum than she would be ordinarily entitled to under the Federal Magistrates Court scale.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondents costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $4,000.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 October 2006