SZIRK v Minister for Immigration - [2006] FMCA 1062

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIRK v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1062

MIGRATION – RRT decision – Chinese Falun Gong practitioner – disbelieved by Tribunal – no jurisdictional error – application dismissed at show cause hearing.

Migration Act 1958 (Cth), ss.424A, 424A(3)(b), 476

Federal Magistrates Court Rule 44.12(1)(a)

Minister for Immigration v Yusuf (2001) 206 CLR 323

Applicant:

SZIRK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1099 of 2006

Judgment of:

Smith FM

Hearing date:

18 July 2006

Delivered at:

Sydney

Delivered on:

18 July 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondents:

Mr Sinnadurai

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1099 of 2006

SZIRK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 12 April 2006, seeking an order under s.476 of the Migration Act that the respondent show cause why a remedy should not be granted by way of judicial review, in relation to a decision of the Refugee Review Tribunal dated 12 February 2006 and handed down on 14 March 2006. The Tribunal affirmed a decision of a delegate, refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 3 May 2006. The applicant attended on that day and had the assistance of a Mandarin interpreter. The nature of the proceedings was explained to the applicant by me and in a written information sheet, and he was given the opportunity to participate in a free legal advice scheme. He declined to take that offered opportunity.
The applicant was warned that his application might be dismissed at today’s listing if I were not satisfied that it raised an arguable case for the relief claimed.
My orders gave him until 7 July to file an amended application showing better grounds of review, together with any additional affidavits. My orders clearly indicated that evidence of a Tribunal hearing, if relevant, should be presented as a transcript.
The applicant has filed only an amended application, which I shall refer to below, but has not filed any evidence and has not sought to present a transcript of the Tribunal hearing to the Court.
His application for a protection visa was supported by a brief typed statement explaining why he sought protection in Australia against return to his country of nationality, People's Republic of China. He said that in 1997 he had bought books about Falun Gong, and:
It took me three months to read them, to understand them, and to learn them. I also learnt from other Falun Gong members in other cities. I started to introduce Falun Gong to other farmers in our village. We practised together. We did it in public. We were all rewarded from learning Falun Gong.
The applicant claimed that, following a crackdown in 1999 by the Chinese authorities, he attended talks with the government in Beijing, and “started to have demonstrations”. He said that when he returned home he continued to practise Falun Gong. He said that in July 2005:
Another senior member of Falun Gong in our village was detained, I was informed by government official that local government was going to search my home and I would become targeted. I left China and came to Australia with the help of that government official.
No further details were given to the Department, and no supporting evidence was ever presented to the Department or to the Tribunal. The applicant did attend a hearing held by the Tribunal on 14 February 2006.
In its statement of reasons, the Tribunal set out material giving the background to the treatment of Falun Gong members by Chinese authorities. However, it did not give a detailed account of what happened at the hearing, but said:
The Applicant told the Tribunal that he was a “small leader” of the Falun Gong in the PRC. He told the Tribunal that he was a kind of “liaison officer” between Falun Gong leaders and Falun Gong followers. He claimed that he and others used to try and lobby government officials on behalf of the Falun Gong movement, but when asked at the hearing to give detail about these activities he was vague and could provide no detail at all. Throughout his evidence the Applicant claimed prominence in the Falun Gong movement to explain the danger he faces in the PRC and then claimed that he was a small player when asked, without satisfactory results, to provide details.
Whilst giving some correct answers to some questions about Falun Gong, the Applicant demonstrated flawed, erroneous, incomplete and superficial familiarity with the Falun Gong exercise regime. There is no need to go into details in this document. The electronic record of the hearing highlights each and every problem. When the Tribunal put it to the Applicant that his ability to perform and explain the exercises appeared superficial and incomplete, he said he was from the countryside. He also said he could not remember the exercises because he had been doing them less since coming to Australia. This claim, however, appeared to be a contradiction of another claim he made at the hearing about continuing to practice the exercises at home on his own.
The Applicant effectively indicated that he has had no contact with the Falun Gong movement since coming to Australia. He said that this was because he has not been working.
The Tribunal's reasons for affirming the delegate's decision were similarly terse. It said:
On the applicant's vague, inconsistent evidence and on his largely erroneous and superficial demonstration and explanations of Falun Gong teaching, the Tribunal cannot accept that he is, or was in the PRC, a Falun Gong practitioner, let alone a significant one. The Tribunal is of the view that the applicant has coached himself in the Falun Gong practices for the purpose of supporting his protection visa application. The Tribunal is not satisfied that the applicant's exposure to Falun Gong teaching has been other than opportunistic.
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.
I have considered what the Tribunal has said in its statement of reasons, and am unable to identify jurisdictional error in how it has decided the case. Clearly, it has formed a firm view about the applicant's credibility in relation to his Falun Gong plans, based on its observations during a hearing. It has not seen fit to detail its findings in relation to those observations but adopts the "electronic record of the hearing" as being self-explanatory.
On the evidence before me, I am unable to form any opinions on whether that is the case or not. Neither party has presented the evidence necessary for me to arrive at such a conclusion. The consequence is that the applicant, who has the onus of proof in relation to error by the Tribunal, has failed to show an arguable foundation for any grounds which would require evidence of the content of the hearing to establish jurisdictional error by the Tribunal. Any inadequacy of the Tribunal's reasons in terms of s.430 of the Migration Act would not, itself, provide the applicant with a ground of jurisdictional error (see Minister for Immigration v Yusuf (2001) 206 CLR 323).
The applicant's application filed in this Court contained four grounds:
1.The Tribunal failed to carry out its statutory duty. The Tribunal did not provide particulars of the information that was the reason, or part of the reason for affirming the decision (s.424A of the Act 1958)
2.The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
3.The Tribunal did not observe Migration Act 1958 properly to making the decision.
4.The Tribunal has bias towards me when considering my application.
The general contention that the Tribunal was in breach of s.424A was repeated at greater length in his amended application. However, it has not been given any substance with particulars in this application or in any submission, nor in the amended application. On my reading of the Tribunal's decision, it has plainly not relied upon any information specifically concerning the applicant, which it did not obtain in the course of the Tribunal's hearing, and which would not be covered by the exclusions in s.424A(3)(a) or (b)). I can see no arguable substance in the first ground.
The second ground has not been given content in the application nor submissions before me. I consider that the Tribunal's rejection of the applicant's claim, based on its opinion as to the credibility of his claims to be a Falun Gong practitioner, plainly did provide a rational and logical foundation for its decision. I can see no argument raised on the material before me to the contrary.
The third ground completely lacks particulars giving it any meaningful substance.
The fourth ground, alleging bias, was amplified by the applicant in his submissions to me today. He said that, while it was correct that he was not able to perform some exercises correctly and did not show "perfect" knowledge about Falun Gong, the Tribunal should have understood why this occurred, and its failure to accept that he was a Falun Gong practitioner showed bias.
Putting aside the problem that the applicant has in establishing what actually happened at the hearing, and assuming that the transcript would show what he contends - i.e his demonstrating inadequacy in his knowledge of Falun Gong practices but seeking to explain this, this would not, in my opinion, show a prospect of establishing bias by the Tribunal. It was the function of the Tribunal to decide what conclusions it would draw from the applicant’s evidence at the hearing, and the fact that it rejected his explanations and decided against the applicant adversely could not, itself, establish bias.
On all the material before me, I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it is appropriate for me to exercise my discretion to dismiss the application under rule 44.12(1)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 2 August 2006