SZJDN v Minister for Immigration
[2006] FMCA 1899
•13 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1899 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958(Cth), ss.91R(3), 422B, 424A |
| Applicant: | SZJDN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2135 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 13 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2135 of 2006
| SZJDN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal made on 5 July 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in July 2000. He applied for a protection visa in March 2006. The application was refused and he sought review by the Tribunal.
He attended a Tribunal hearing. After the Tribunal decision he sought review by this Court. On the basis that the application was made one day after 28 days from actual notification of the decision the first respondent consented to the extension of time to make the application sought by the applicant. The Court extended the period (see s.477(2) of the Migration Act 1958(Cth)).
The applicant claimed to have a well-founded fear of persecution in the People’s Republic of China by reason of his Falun Gong activities and dissident political opinions. In its reasons for decision, the Tribunal outlined the claims made by the applicant in connection with his application for a protection visa and also the claims made by the applicant and his adviser at the Tribunal hearing. The Tribunal recorded the fact that in the course of the hearing the applicant’s adviser asked for time to provide a written submission.
The Tribunal allowed until 28 June 2006. No submissions were provided by that date. It recorded that on 30 June 2006 a Tribunal officer contacted the adviser to remind her that the submission was overdue. On the same day the adviser sent a facsimile to the Tribunal indicating that she was waiting for a facsimile from the applicant and asking for an extension of time until Monday, 3 July 2006. No submission was received on 3 July 2006 although the adviser is said to have agreed to provide it that day. The Tribunal officer again contacted the adviser on 4 July 2006. The adviser is recorded as having assured the officer that a submission would be provided no later than 4 July 2006. At the time of the Tribunal decision, no such submissions had been provided by the applicant or his adviser to the Tribunal.
The Tribunal set out independent information in relation to the situation of Falun Gong and Falun Gong practitioners in China, including independent information recording that the movement was banned on 22 July 1999. It summarised the applicant’s case as being essentially that he was a Falun Gong practitioner in China who had received warnings and had his house searched by the authorities and who claimed to fear persecution if he were to return to China.
While the Tribunal accepted that Falun Gong practitioners constitute a particular social group in China for the purposes of the Refugees Convention, for reasons which it gave it did not accept any of the applicant’s claims.
It found the applicant’s evidence at the hearing was vague. It noted that he had been unable to provide any information beyond what the Tribunal described as “the most banal generalities” with respect to Falun Gong, contrary to independent information which suggested that a Falun Gong practitioner would have a developed understanding and knowledge about the principles of Falun Dafa and other matters. It elaborated on what it perceived as inadequacies in the applicant’s evidence in relation to Falun Gong, despite his claims to have read and studied for many years, been a practitioner since 1994 and a teacher of Falun Gong in Malaysia after leaving China. It also noted the absence of supporting material from any local Falun Gong centre.
For these reasons the Tribunal did not accept that the applicant was a Falun Gong practitioner in China. It also found the applicant’s reply to the Tribunal’s question of how he had come to know and practise Falun Gong in China unconvincing and that key aspects of his evidence at the hearing contradicted the independent information before the Tribunal. In particular it found that his claim that he fled China in mid-1998 after receiving warnings and having his house searched by authorities who seized Falun Gong-related materials was contrary to independent information which “unequivocally” indicated that Falun Gong first came to prominence in April 1999 and was not banned and labelled illegal until July 1999 and that there was no evidence that followers and practitioners were hindered, harassed, intimidated or persecuted by the authorities in 1998.
Based on this information, the Tribunal did not accept as credible or plausible that the applicant was sent warnings, that his house was searched or materials were seized as he claimed. It found that his claims in this regard were fabricated. It did not accept that the applicant was ever wanted by the authorities in China for that reason.
The Tribunal also found the totality of the applicant’s oral evidence indicated a propensity to exaggerate and to tailor evidence. It had regard to his lack of knowledge about Falun Gong and fabrication of claims regarding his experiences in China prior to his departure. The Tribunal also disregarded any Falun Gong activities undertaken by the applicant in Australia on the basis that s.91R(3) of the Migration Act 1958 applied.
The Tribunal considered the applicant’s claim that he had promoted Western democracy and different political opinions in China as a claim that he had talked about Western democracy because he wanted to practise Falun Gong without government restrictions. The Tribunal did not accept that the applicant had engaged in promoting democracy or that he had suffered any adverse consequences as a result, having found that the applicant was not a Falun Gong practitioner in China and that there were not restrictions placed on the practice of Falun Gong at the time he departed China.
On this basis the Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason and that he was not a refugee.
In his application for review, the applicant contended generally that if he returned to China he would be at risk of suffering persecution, that the Tribunal failed to understand his claims and failed to consider relevant matters and that the Tribunal refused to grant his protection visa without any proper grounds and proper investigation. The grounds are not particularised but in the hearing today the applicant addressed several matters and written submissions were read to the court.
Considering first the grounds in the application: the generally expressed claim that the applicant will be at risk of suffering persecution seeks merits review and does not establish a jurisdictional error on the part of the Tribunal. The claim that the Tribunal failed to understand the claims and failed to consider relevant matters is not particularised. As expressed, it does not establish jurisdictional error, although I will return to the matters raised by the applicant today.
Similarly, the third generally expressed ground that the Tribunal decision was without proper grounds and proper investigation does not, of itself, demonstrate jurisdictional error. Insofar as the applicant takes issue with the findings of fact of the Tribunal, such matters are matters for the Tribunal. Insofar as there is some suggestion that the Tribunal failed to observe procedures, there is nothing in the material before the court to support such a generally expressed contention. The Tribunal invited the applicant to a hearing which he attended. There is nothing in the material before the court to support a claim that the Tribunal either undertook or was in any way under an obligation to conduct any further investigation.
In oral submissions, the applicant first contended that the Tribunal did not give him a fair opportunity to provide complementary material that he claimed was important to his case and that it rejected his application “straightaway”.
I endeavoured to clarify the nature of this claim with the applicant. He told the court that he wanted to supply additional information relevant to his claim but that the Tribunal did not give him a notice asking for more information, did not give him time or that he did not know the time within which he could provide further information. I have considered this claim, both in relation to what occurred prior to the hearing and thereafter.
The applicant sought review of the delegate’s decision by application for review faxed to the Tribunal and received on 28 March 2006. In that application he indicated that he had an adviser (who was a registered migration agent) who he authorised to act for him in relation to the application. In the part of the application that asked where he wanted correspondence sent about his application, he indicated that he wanted correspondence sent to his authorised recipient. The form contains what is apparently the applicant’s signature and also an interpreter’s declaration.
The Tribunal wrote to the applicant on 29 March 2006. That letter was addressed to the applicant’s authorised recipient but, consistent with what is stated in the review application, there is a notation on the letter indicating that a copy was sent to the applicant who was in immigration detention.
That letter explained the Tribunal procedures, including what would occur in relation to an invitation to a hearing. It asked the applicant to immediately send to the Tribunal any documents, information or other evidence he wanted the Tribunal to consider.
On 10 April 2006 the Tribunal wrote again to the applicant by letter addressed to his authorised recipient, inviting him to attend a Tribunal hearing on 1 June 2006. That letter repeated the invitation to send any new documents or written arguments the applicant wanted the Tribunal to consider. The Tribunal received a response to the hearing invitation indicating that the applicant would attend the Tribunal hearing.
It is apparent from the material before the court that there was a difficulty on the day scheduled for the Tribunal hearing in that, according to a letter from the adviser to the Tribunal, the adviser had been informed by the detention centre that no transport arrangements had been made to take the applicant to the Tribunal hearing. It is also apparent that after some correspondence between the Tribunal and the adviser the Tribunal hearing was rescheduled at a time to suit the applicant and his adviser. The Tribunal notified the applicant by letter of 1 June 2006 addressed to his authorised recipient that the hearing had been rescheduled for 26 June 2006 and it is apparent that the Tribunal hearing was held on that day.
From this information it is clear that the Tribunal accorded the applicant an opportunity prior to the hearing to provide information to it. There is nothing in the material before the Court to indicate that any issue was raised about the time provided or the opportunity which the applicant had to provide such information before or during the hearing.
The Tribunal reasons for decision record that in the Tribunal hearing (which the applicant attended with the assistance of his migration agent and a Mandarin interpreter) the applicant’s adviser asked for time to provide a written submission, that time was allowed and subsequently extended by the Tribunal.
Included in the material before the court is a copy of what appears to be a facsimile to the Tribunal from the applicant’s adviser of 30 June 2006 indicating that the adviser was waiting for a fax from the applicant who had said he was faxing his submission in the Chinese language. The Tribunal extended the time for submissions until 3 July 2006. The adviser agreed on that day to provide a submission by close of business. No submission was received. On 4 July 2006 the adviser again assured the Tribunal that a submission would be provided by
4 July 2006.
The Tribunal reasons for decision record that no submissions were provided by the applicant or his adviser to the Tribunal after the hearing. There is nothing in the material before the court to indicate that any further time was sought by the applicant or his adviser on or after 4 July 2006. More generally, the Tribunal was under no obligation to allow a further period of time for submissions or to extend the time beyond the time that was in fact allowed in the particular circumstances of this case.
In these circumstances there is nothing in the material before the court to suggest that the Tribunal failed to consider the request made through the applicant’s adviser for time to provide a written submission or to provide an opportunity for the applicant to provide such submission, let alone that in its consideration of that issue the Tribunal in any way fell into jurisdictional error by failing to comply with the procedures under the Migration Act 1958 (Cth) or in any other way.
The applicant contended that he had additional material that he had wished to put before the Tribunal. He elaborated on his claims in relation to Falun Gong and claimed to have spoken to his parents in China about recent events in China including events which he was told occurred in September 2006. Insofar as the applicant now raises claims about events that are said to have occurred after the Tribunal decision, in particular in September 2006, such material does not assist the court to determine whether the Tribunal fell into error at the time at which it made its decision. As merits review is not available in this court, it is not material that assists the court to determine the matter that is before it.
Insofar as the applicant now claims that the situation has changed in China, that may be a matter he can raise with the Minister but it is not a matter that establishes jurisdictional error on the part of the Tribunal.
The applicant also took issue with the Tribunal finding that the crackdown on Falun Gong began in 1999, which he said was contrary to other information suggesting that it began in 1998. Insofar as this claim suggests that the Tribunal should have put the country information on which it relied to the applicant for comment, I note first that such country information is outside the obligation in s.424A(1) of the Migration Act 1958 (Cth) which requires the Tribunal to put to an applicant for comment particulars of information it considers would be the reason or part of the reason for affirming the decision under review. Such independent information is within the exception in s.424A(3)(a) as information not specifically about the applicant or another person and just about a class of persons of which the applicant or another person is a member.
I note that this is a case to which s.422B of the Migration Act 1958 applies so that the subdivision in which ss.424A and 425 appear is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with. I also observe in passing that it appears from the Tribunal account of what occurred in the hearing (which is the only material before the court in relation to the Tribunal hearing) that the Tribunal in fact raised with the applicant its view of the situation in China, in particular that Falun Gong was not banned in China until July 1999 and that it gave the applicant an opportunity to comment on the relevance of this information to his claims about what occurred in 1998.
The fact that the applicant takes issue with the particular country information relied on by the Tribunal does not establish jurisdictional error. It is for the Tribunal to determine what country information it relies upon and the weight to be given to individual items of country information.
The applicant asked the court to investigate. He seeks to reopen his case. Again, as indicated, the court’s role in such matters is confined to a consideration of whether there is jurisdictional error in the decision or procedures of the Tribunal and merits review is not available.
The general claim by the applicant that the Tribunal decision and procedures were unfair does not establish jurisdictional error. I refer once again to s.422B and to the particular issues referred to above. As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful and the first respondent seeks that he meet her costs in the sum of $4,800. This amount is said to represent a discount on the “usual” amount of $5,000 reflecting the fact that there was no counsel for the respondent in these proceedings. It was also indicated that there was a large amount of material to be considered and also an additional issue raised by the need to consider the question of an extension of time for the hearing of this application and that the costs sought were significantly less than the actual amount incurred. However, having regard to all of the material before me and the explanation given, I consider that an appropriate amount of costs in this instance is the sum of $4,500.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 8 January 2007
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