SZJCB v Minister for Immigration - [2006] FMCA 1662

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJCB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1662

MIGRATION – Review of decision by Refugee Review Tribunal – Refugee Review Tribunal found applicant not to be witness of truth – Refugee Review Tribunal did not accept applicant’s claim of being a Falun Gong practitioner – no error capable of review identified in applicant’s amended application before this Court.

Judiciary Act 1903 (Cth), s.39B
Migration Act1958 (Cth), s.474; pt.8 div.2

Applicant:

SZJCB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2017 of 2006

Judgment of:

Emmett FM

Hearing date:

7 November 2006

Date of last submission:

7 November 2006

Delivered at:

Sydney

Delivered on:

7 November 2006

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent:

Mr I. Muthalib, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2017 of 2006

SZJCB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 May 2006 and handed down on 15 June 2006.
The applicant was born on 21 June 1962 and claims to be from the People’s Republic of China (“the PRC”). The applicant has a husband and daughter who remain in the PRC. The applicant arrived in Australia on 25 December 2005, having legally departed from Pudong Airport on a passport issued in her own name and a visitor’s visa issued on 22 December 2005.
On 30 December 2005, the applicant lodged an application for a protection (class XA) visa with the Department. In her protection visa application, the applicant furnished a statement in which she stated that she is a Falun Gong practitioner and that she is one of the leaders of a Falun Gong organisation in Shanghai. She stated that she commenced her Falun Gong practice in 1997 and that at the end of 1999 when Falun Gong was outlawed, she was detained by the police for almost a month in Shanghai and tortured. She stated that she was forced to declare separation from Falun Gong and after her release was required to report weekly to the local police.
On 17 February 2006, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 24 March 2006, the applicant lodged an application for review of the Delegate’s decision by the Tribunal. The applicant provided a statement of her claims to the Tribunal in support of her application, which were in substantially the same terms as her statement provided in support of her protection visa application.
On 13 April 2006, the applicant received an invitation from the Tribunal to attend a hearing on 12 May 2006. That letter informed the applicant that the Tribunal had considered the material before it and was unable to make a decision in her favour on that information alone. The applicant was requested to send to the Tribunal any further material that it wished the Tribunal to consider. The applicant attended a hearing of the Tribunal at which she gave oral evidence.
The Tribunal accepted that the applicant is a national of the PRC and stated that it assessed her claims against that country. The Tribunal, in its decision, identified with particularity the claims made by the applicant both in writing and orally. The Tribunal also noted exchanges that it had with the applicant about various aspects of the applicant’s evidence. The decision also had regard to particular independent country information which again is detailed by the Tribunal.
The Tribunal found the applicant not to be a witness of truth and provided detailed reasons upon which it based that conclusion. Those included the applicant’s complete lack of knowledge of Falun Gong’s history, basic principals and exercises. The Tribunal found the applicant’s claims of detention, and what happened to her after Falun Gong was banned in the PRC in 1999, to be unconvincing and did not accept that the applicant was arrested or detained because she was a Falun Gong practitioner. The Tribunal concluded that, taking into account all the evidence and, in particular, the applicant’s complete lack of knowledge of the principles and practice of Falun Gong, it did not accept that the applicant was a Falun Gong practitioner in the PRC. The Tribunal noted that, based on that conclusion, the Tribunal did not accept that the applicant was detained in the PRC because she was a Falun Gong practitioner. Indeed, the Tribunal noted that it found that the applicant fabricated those claims in order to bring herself within the definition of a refugee. The Tribunal did not accept that the applicant had practised Falun Gong in Australia or that she would practise Falun Gong if she were to return to the PRC. The Tribunal was not satisfied that there is a real chance that the applicant will suffer serious harm or that she has a well-founded fear of persecution for a Convention reason were she to return to the PRC.
Further, the Tribunal noted that, at the end of the hearing, the applicant claimed that she did not wish to return to the PRC because she had no house, no money and no husband in the PRC. The Tribunal noted that the applicant did not claim that she would suffer Convention related harm for those reasons and, indeed, found the applicant’s reasons for wanting to remain in Australia not Convention related. The Tribunal thereby affirmed the decision of the Delegate of the first respondent.
The applicant filed an application in this Court seeking judicial review of the Tribunal’s decision on 21 July 2006. The applicant filed an amended application on 14 September 2006 and confirmed this afternoon that it was the amended application upon which she relied before this Court. The applicant was unrepresented before this Court although had the assistance of an interpreter. The applicant made no submissions in support of her amended application. The applicant’s amended application is in the following terms:
“1. The decision involved an error of law in that: The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
2. I am a real Falun Gong practitioner.
3. In 1997 I started to learn Falungong from my friends of Beijing residents because he told me that Falungong Exercise can improve my health and it is even more effective comparing to Yuja.
4. In the end of 1999, the Chinese authority outlawed Falungong all over the country. Nobody will be allowed to practise Falungong, spread favourable messages about it, organise or participate concerning activities and demonstrations.
5. I was detained by the police for almost one month in Shanghai, tortured by the policemen. I was also force to declare separation from Falungong. After I got released, the only thing for me to do was to report my situation to local police station every week.
6. I did not know what would happen to me in the future, as China has gone through so many politic movements, and each time thousands or millions of people’s lives were ruined. I heard from my relative who happens to work in government that the government will strike the Falungong again. Thus, some of my friends suggested me to go to overseas. And they also helped me get a visa in order to come to Australia.
7. Australia is a real democratic country and people there enjoy harmony, freedom and high standard of human rights. I have no reason to go back to China and I do think that I meet the refugee criteria. I wish I could stay in Australia as a refugee.”
Paragraph 1 contains no particulars, making it difficult to identify the nature of the applicant’s complaint about the Tribunal’s decision. Plainly, the Tribunal complied with the statutory regime in inviting the applicant to attend a hearing. It is clear from the Tribunal decision that it understood and considered the claims of the applicant comprehensively and made determinations in respect of these claims. The Tribunal gave reasons for its findings and conclusions and those findings and conclusions were open to the Tribunal on the material and evidence before it.
Paragraphs 2 to 7 are no more than assertions made by the applicant and do not disclose any reviewable error on the part of the Tribunal. To the extent that they seek merits review, that is not a course open to this Court.
There is no error capable of review identified by the applicant in her amended application and none is apparent on the face of the Tribunal’s decision or the conduct of its review.
In the circumstances, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the proceeding before this Court is dismissed.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

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

Associate: S. Kwong

Date: 13 November 2006