SZJFD v Minister for Immigration

[2007] FMCA 507

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJFD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 507

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in china as a Falun Gong practitioner – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A

Applicant: SZJFD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2251 of 2006

Judgment of: Driver FM

Hearing date: 10 April 2007

Delivered at: Sydney

Delivered on: 10 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Miss K Rose
DLA Phillips Fox

ORDERS

1. The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2251 of 2006

SZJFD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 26 June 2006 and was handed down on 13 July 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant applied in this Court for judicial review of the Tribunal's decision on 15 August 2006.  That application asserted notification of the Tribunal's decision on 24 July 2006.  On that basis I find that the application to this Court was filed within time.

2. The background facts relating to the applicant's protection visa claims and the Tribunal decision on them are conveniently set out in the Minister's outline of written submissions filed earlier today.  I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2 to 13 of those written submissions:

   The applicant is a male citizen of China.   He arrived in Australia on 20 December 2005. 

   The applicant applied for a Protection (Class XA) visa on 16 January 2006.  His claims were set out in a statement accompanying the application.  The application was refused on 14 March 2006.

   The applicant applied to the Tribunal for review of the original decision on 12 April 2006.  His written claims were set out in an additional statement.

   The applicant gave oral evidence before the Tribunal on 23 June 2006.

   The applicant's claims

   In a statement attached to his Protection Visa Application (PVA) the applicant claimed to fear persecution because he was a Falun Gong practitioner (page 4).

   Along with his application to the Tribunal, the applicant provided a shortened version of his PVA claims (page 4). 

   The applicant, although he did not reply to the invitation to hearing, attended the scheduled hearing on 23 June 2006 (pages 5-6): 

   a)      The applicant submitted his passport to the Tribunal. 

   b)The Tribunal asked the applicant to confirm the truth of the information in his PVA and statements.  The applicant said that he had since had the information translated, and there were some differences from what he had expected. The Tribunal established, after questioning the applicant, that his answers in his various statements had not been confirmed back to him after they had been translated into English.

   c)The applicant brought to the hearing a copy of his statement to the Department, with some Chinese writing on it, and a document in Chinese, which he claimed was the original version of his statement.  The applicant stated that his statement had been written by a friend of his.  The Tribunal took a copy of both of these documents.

   d)The Tribunal asked the applicant to provide any claims omitted from his earlier statements. He claimed that he had made comments regarding the 1989 Tiananmen Square incident, which were reported in a Japanese newspaper.  He claimed that he was denied employment opportunities as a result.

   e)The applicant also claimed that his wife was a Falun Gong practitioner, and stated that he was not a Falun Gong practitioner himself.  He claimed that a particular migration agent had told him to submit in his two statements that he personally was a Falun Gong practitioner.

   f)The applicant claimed that two of his fingers had been broken by the police at a demonstration in 2002 but that he was not specifically targeted on this occasion.

   The decision of the Tribunal

   The Tribunal accepted the applicant's claims, made at the hearing, that (page 10):

   a)      He was not the author of his statements.

   b)           He was not a Falun Gong practitioner.

   c)           He had no difficulty obtaining a passport.

   The Tribunal found that, even if it did accept that the applicant's wife was a Falun Gong practitioner, the applicant was not personally at risk of harm as a result (page 10):

   a)The difficulties the applicant claimed to have faced were minor.  In particular, his two broken fingers did not arise from an attack directed specifically at him.  The applicant claimed nothing further happened to him in the period of about three years before he left China, except for feeling like he and his wife were being monitored.

   b)If the authorities had been monitoring the applicant, they would have known that he had been living physically apart from his wife since 1998, before the crackdown on Falun Gong.  In addition, the applicant did not claim to have ever been questioned by the authorities in the three years before his departure.

   However the Tribunal went on to reject the applicant's claim that his wife was a Falun Gong practitioner.  This Tribunal rejected this claim because it found that the applicant was not a credible witness (pages 10-11):

   a)The applicant submitted a false statement to the Tribunal.  The applicant's oral evidence made it clear that the statements were prepared by someone else and contained false assertions.

   b)The Tribunal could not see why the claim that the applicant's wife was a Falun Gong practitioner would be omitted from his statements, as it would have enhanced his claim to be a Falun Gong practitioner. 

   c)Similarly, the Tribunal expected that, if true, the applicant's claims in relation to the Tiananmen Square incident would have been included in his statements. 

   d)At the hearing the applicant's oral evidence was contradictory on at least two matters.  He initially failed to mention the incident where his fingers were broken, and gave contradictory evidence about his place of residence.

   As the Tribunal found that the applicant's wife was not a Falun Gong practitioner it followed that it did not accept the applicant would face persecution in China because of any link, through his wife, to Falun Gong (page 11).

   The Tribunal did not accept that the applicant would face persecution in China because of any political opinion attributed to him.  It rejected his claims to have made comments following the Tiananmen Square incident, and to have suffered discrimination in his employment (page 11).

3. The applicant has amended his judicial review application twice since the original application was filed.  He relied today upon the most recent amended application filed on 22 November 2006.  That application sets out three grounds of review. 

   (1)That the decision of the Tribunal is illogical in that the Tribunal made the conclusion that the applicant would not be persecuted in the foreseeable future even if his wife were a Falun Gong practitioner;

   (2)that the applicant was persecuted by the Chinese authorities because his wife was a Falun Gong practitioner;

   (3)that the decision of the Tribunal is otherwise contrary to law.

4. Ground (2) simply goes to the merits of the Tribunal decision.  As I explained to the applicant, that is beyond the scope of the present proceeding.  Ground (3) is meaningless in the absence of particulars. 

5. Ground (1) fails at several levels.  The first is that the Tribunal finding that the applicant would not be persecuted in the foreseeable future even if his wife was a Falun Gong practitioner was a secondary or alternative finding.  The principal finding of the Tribunal was that the applicant's wife was not a Falun Gong practitioner.  Secondly, even if that principal finding were to be unavailable, the secondary finding is based upon an assessment of the applicant's claims which is not illogical.  I reject the grounds in the further amended application filed on 22 November 2006. 

6. I conducted a show cause hearing in this matter on 27 October 2006.  Order one made by me on that day was to give the applicant leave to file and serve a further amended application no later than 30 November 2006 asserting jurisdictional error in relation to the manner in which the Tribunal dealt with the admittedly false statement accompanying the applicant's review application and referred to on pages 80 and 81 of the court book.  Secondly, I ordered the Minister to show cause why relief should not be granted in relation to such further amended application if filed.  The further amended application filed on 22 November 2006 may have been an attempt by the applicant to take advantage of my orders on 27 October 2006.  If so, it is a manifestly inadequate attempt as it does not raise the issue identified by me. 

7. Nevertheless, the Minister has dealt with the issue raised by me both in his written submissions and in the oral submissions made by Ms Rose today. The issue concerns the operation of s.424A of the Migration Act1958 (Cth) (“the Migration Act”). On pages 80 and 81 of the court book the Tribunal made adverse credibility findings against the applicant. The applicant was not invited, pursuant to s.424A, to provide comments on the information upon which the adverse credibility findings were based. As is apparent from what the Tribunal says at that point in its reasons, together with what the Tribunal says in the second paragraph on page 75 of the court book under the heading "Evidence Given at the Hearing", the relevant information was information given orally by the applicant at the hearing conducted by the Tribunal as well as a copy of the applicant's protection visa claims apparently notated in the Chinese language in handwriting which was re-presented to the Tribunal at the hearing.

8. I find that there was no obligation to invite comment on the information pursuant to s.424A because of the operation of s.424A(3)(b) of the Migration Act. The information relied upon by the Tribunal was information given to the Tribunal by the applicant himself for the purposes of his review.

9. The Minister's submissions also deal with the grounds of review advanced in the original and amended applications. It does not appear that the grounds in those applications were pressed by the applicant but even if they were pressed the Minister's submissions deal adequately with them.  I accept those submissions. 

10. The applicant did not wish to make any submissions other than to query the reasons for the Tribunal decision. 

11. I find that the decision of the Tribunal is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

12. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $3,800.  The applicant did not wish to be heard on costs.  The amount sought by the Minister is modest, noting that under the Court scale $5,000 would be payable.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,800. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 April 2007