SZJFU v Minister for Immigration
[2007] FMCA 127
•16 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 127 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A(1); 425; 474; pt.8 div.2 |
| Applicant: | SZJFU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2298 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 February 2007 |
| Date of last submission: | 7 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms A.. Mitchellmore |
| Solicitors for the Respondent: | Ms A.. Nanson, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2298 of 2006
| SZJFU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 June 2006 and handed down on 20 July 2006.
The applicant was born on 3 October 1972 and claims to be from the People’s Republic of China (“the PRC”) and of Falun Gong faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia he was employed as a sales manager.
The Applicant has a wife and daughter who remain in the PRC.
The Applicant arrived in Australia on 30 November 2005, having legally departed from Shanghai on a passport issued in his own name and a Class UC/subclass 456 business (short stay) visa issued on
23 November 2005.
On 12 January 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese Communist government and other PRC authorities because he is a Falun Gong practitioner. The Applicant claimed that, in September 2003, he was abducted at work by local police without reasons, his home was ransacked and he was sentenced without trial to two months at a labour camp for practising Falun Gong.
On 16 March 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 18 April 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant claimed that he was taken from his home (not his workplace) in Fujian, in May 2003, and detained for two months until July 2003. On 29 June 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 18 August 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal proceeding
The Tribunal noted that it had before it the Department’s file relating to the Applicant and that the Applicant appeared before it on 15 June 2006 to give evidence and present arguments.
The Tribunal identified with particularity the Applicant’s claims contained in his application for protection visa and quoted in full the Applicant’s written statement in support of the application for a protection visa.
The Tribunal noted the Applicant’s claims that he practiced Falun Gong in the PRC having been introduced to it by a colleague in 2001, that he was detained in 2003 and held for 2 months because of his Falun Gong practice and that, after his release in 2003, he was under surveillance and had no freedom. The Tribunal noted that the Applicant said he found it difficult to find work after his release in July 2004. The Tribunal noted that the applicant had not practiced Falun Gong since he arrived in Australia in November 2005 and had not made contact with the Falun Dafa Association or any Falun Dafa practice site or any Falun Dafa practitioner with a view to locating a site or support.
The Tribunal identified the exchanges it had with the Applicant during the hearing, including the questions asked by the Tribunal and the responses made by the Applicant.
The Tribunal explored with the Applicant his understanding of Falun Gong. The Tribunal noted that it put to the Applicant that it was concerned with his lack of knowledge of Falun Gong. In particular, the Tribunal noted that it was concerned that the Applicant could not name the five movements and that the Applicant had made no effort to contact either the Falun Dafa Association in Australia, any Falun Gong member or any Falun Gong practice site. The Tribunal noted that it suggested to the Applicant that a genuine practitioner makes cultivation a top priority and might be expected to make early contact with other Falun Gong practitioners for guidance and advice, even support. The Tribunal noted the Applicant’s response that he meditates and that seems to make him feel better and that the way he meditates is the same as Falun Gong.
The Tribunal noted that it put to the Applicant that he does not practice Falun Gong in Australia where he is free to do so and asked him why this is so. The Tribunal noted the Applicant’s response that he only just arrived here and needs time. The Tribunal observed that the Applicant arrived in November 2005 and found that that is “no means recent.” The Tribunal also noted the Applicant’s response that he does not know “how long he will be able to stay in Australia and if he cannot stay long, why should he spend lots of time looking for these things.”
The Tribunal noted it told the Applicant it had serious concerns about the level of his knowledge about Falun Gong and that his failure to avail himself with the opportunity to make connection with any Falun Gong site and his failure to make any effort to practice Falun Gong since his arrival in Australia might suggest that he is not and has not been a serious or genuine Falun Gong practitioner at any time in the PRC.
The Tribunal accepted that the Applicant is a Chinese national.
The Tribunal found “implausible” the Applicant’s claim that he was unable to locate a Falun Gong site in Australia because of language difficulties.
The Tribunal found that the Applicant is “not a witness of truth.”
The Tribunal rejected the Applicant’s claim that he was detained for 2 months from May until July 2003 because he was a Falun Gong practitioner and therefore rejected his claim that he lost his job and was under surveillance for that reason. The Tribunal found that, because it found that the Applicant did not commence practice of Falun Gong in the PRC in 2001, it concluded he was never a Falun Gong practitioner in the PRC.
Because the Tribunal found the Applicant is not a genuine Falun Gong practitioner, the Tribunal concluded that he would not seek to practice Falun Gong if he were to return to the PRC. The Tribunal found his claim of fear of persecution not well founded and was not satisfied that the Applicant faces a real chance of Convention related persecution in the PRC.
The Tribunal noted that, having considered the evidence as a whole, it was not satisfied that the Applicant is a person to whom Australia has protection obligations and therefore affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of an interpreter. The Applicant participated in the Refugee Review Tribunal Legal Advice Scheme.
The Applicant confirmed that he relied on his application filed in this Court on 18 August 2006. The application is in the following terms:
“1. 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.
2. The Tribunal failed to consider my claims.
3. The Tribunal failed to carry out its statutory duty.”
The Applicant stated in oral submissions to this Court that the Tribunal was biased against him and that he was very nervous at the hearing and he did not know how to answer questions properly and may not have answered directly on the point. He also said that he could not remember anything that he said before the Tribunal.
There were no particulars of bias identified by the Applicant, nor did he seek to rely on any evidence in support of the allegation. Similarly, the Applicant provided no evidence to support his assertion that he was nervous or had any difficulty in answering questions, despite having been directed on 31 August 2006 to file and serve any affidavit evidence in support of his application by 9 November 2006.
In the circumstances such complaints are not made out.
Ground 1 of the application complains that the Tribunal’s conclusion that the Applicant is not a refugee was not based on rational logical foundation.
A fair reading of the decision makes it clear that the Tribunal considered in detail the Applicant’s claims, explored its concerns with the Applicant and made findings in accordance with its statutory duty. The findings and conclusions made by the Tribunal were open on the evidence and material before it and for which it gave reasons. The reasons provided by the Tribunal were both rational and logical.
Accordingly, this ground is not made out.
Ground 2 complains that the Tribunal failed to consider the Applicant’s claims.
As is apparent from paragraphs 11 to 25 above in these reasons, the Tribunal considered in detail the Applicant’s claims and, as stated above, explored those claims and its concerns arising out of the Applicant’s evidence.
Accordingly, this ground is rejected.
Ground 3 complains that the Tribunal failed to carry out its statutory duty. Again there are no particulars of this claim. The Tribunal invited the Applicant to attend a hearing, in accordance with s.425 of the Act, to give evidence and make submissions on the issues relating to the decision under review. There was no information to which the Tribunal had regard that enlivened the obligations of s.424A(1) of the Act. The Tribunal considered the Applicant’s claims, identified the material to which it had regard, made findings and conclusions for which it gave reasons.
The findings and conclusions of the Tribunal were open to it on the material and evidence before it and for which it gave reasons.
There was no breach by the Tribunal of its statutory duty in the conduct of its review or the reasons for its decision.
Accordingly, this ground is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 12 February 2007
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