SZJGG v Minister for Immigration - [2006] FMCA 1895

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1895

MIGRATION – Review of decision by Refugee Review Tribunal – whether applicant has a well-founded fear of persecution by reason of being a Falun Gong practitioner.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 424A(1); 474; pt.8 div.2
Federal Magistrates Court Rules 2001

Applicant:

SZJGG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2324 of 2006

Judgment of:

Emmett FM

Hearing date:

13 December 2006

Date of last submission:

13 December 2006

Delivered at:

Sydney

Delivered on:

13 December 2006

REPRESENTATION

Solicitors for the Applicant:

Mr. M. Ardino, Morgan Ardino & Co

Solicitors for the Respondent:

Ms A. Mansour, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2324 of 2006

SZJGG

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 Act1903 (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 2 July 2006 and handed down on 25 July 2006.
The applicant was born on 8 December 1976 and claims to be from the People’s Republic of China (“the PRC”). The applicant has a wife and son who remain in the PRC. The applicant arrived in Australia on

17 November 2005, having legally departed from the PRC on a passport issued in his own name and a subclass 676 temporary tourist visa issued on 10 October 2005.
On 25 November 2005, the applicant lodged an application for a protection (class XA) visa with the Department. In support of that application, the applicant provided a statement of his claims. In that statement, the applicant said that, in 1998, he became the head of Falun Gong in his town and that, in 1999, the Chinese government began to crack down on Falun Gong. The applicant stated that during that period of time, police came to his home to warn him because they knew he had been head of Falun Gong before it was banned.
The applicant stated the police searched his home and took away all the documents about Falun Gong and threatened the applicant that if he were to continue to practice Falun Gong, his whole family would be put in gaol.
The applicant stated that he continued to be the head of Falun Gong in his town and that, in August 2005, his assistant was detained by police. The applicant stated that, as a result his assistant’s arrest, he was disclosed as the leader of his town in September 2005, thereby prompting him to apply for a tourist visa to come to Australia to avoid further persecution from PRC authorities. The applicant stated that after he came to Australia, his wife called him and told him that police had been to his home and asked his wife about his address and telephone numbers in Australia.
On 21 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 27 March 2006, the applicant lodged an application for review of the Delegate's decision by the Tribunal. No further material was provided by the applicant in support of his application for review, however, the applicant attended a hearing before the Tribunal on 17 May 2006, at which he gave oral evidence.
The Tribunal referred to the oral evidence given by the applicant and exchanges that he had with the applicant about various aspects of those oral claims. Following the hearing, the Tribunal sent a letter, dated 18 May 2006, to the applicant identifying the information which would be part of the reason for affirming the decision under review, pursuant to s.424A(1) of the Act. That information comprised various aspects of the applicant's statement made in support of his protection visa application which the Tribunal found unsatisfactorily explained by the applicant at the oral hearing. The letter invited the applicant to comment and informed the applicant as to the relevance of the information. No response was received by the Tribunal from the applicant or anyone on his behalf.
The Tribunal noted that it sent the applicant a letter in accordance with s.424A of the Act after the hearing, being the letter of 18 May 2006 and noted the applicant's failure to respond.
The Tribunal then identified various inconsistencies and matters of concern provided by the applicant in the course of the hearing. The Tribunal did not accept that the applicant would have been able to continue his Falun Gong practice in the PRC without encountering any problems with the authorities at all.
The Tribunal found the applicant's oral evidence given at the hearing “profoundly unconvincing”. The Tribunal found that the applicant was not telling the truth about his involvement in practising Falun Gong and did not accept that the applicant had ever practised Falun Gong either in the PRC or Australia, nor that he was ahead of Falun Gong in his home town, nor that he left the PRC because he was afraid that he would be arrested and imprisoned for reasons of his involvement in Falun Gong.
The Tribunal found that the applicant's claims and the way in which his evidence had been provided in support of those claims suggested that his claims were a complete invention. The Tribunal did not accept that there is a real chance that the applicant would be persecuted for reasons of his claimed involvement in Falun Gong if he were to return to the PRC, now or in the reasonably foreseeable future and was not satisfied that the applicant has a well founded fear for persecution for a Convention reason, if he were to return to the PRC. Accordingly, the Tribunal affirmed the decision of the Delegate.
On 22 August 2006, the applicant filed an application in this Court seeking judicial review of that Tribunal decision and relying on the following grounds:
“1. The Tribunal failed to take into account relevant considerations constituting jurisdictional error on the part of the Tribunal in its fact finding function: MIMA v Yusuf (2001 206 CLR 323 at 351 [82].
2. The tribunal (sic) erred in law by failing to ask the question that it had to decide whether the applicant has a well-founded fear of persecution.
3. The Tribunal erred in law aas (sic) it did not accept that the applicant has a spiritual commitment to Falungong in china (sic) or would have such a commitment if he returned to China.”
The applicant was represented today by a solicitor, Mr Ardino, who appeared for the applicant at the first directions hearing before this Court on 12 October 2006 and who filed a notice of appearance on 28 November 2006. The applicant's solicitor sought the Court’s leave this morning to withdraw his representation on the basis that he had been unable to communicate with the applicant to obtain proper instructions. Mr Ardino provided copies of various letters sent to the applicant at both the home address identified by him on his application filed on 22 August 2006 and a post office box number that was provided to Mr Ardino by the applicant's migration agent, Ms Esther Yu.
The applicant informed the Court this morning that he did not live at the home address any longer, that he was not the owner of the post office box, otherwise identified on the application, and knew nothing about the post office box to which correspondence from Mr Ardino had been addressed.
Mr Ardino, on behalf of the applicant, sought an adjournment in respect of the hearing of the applicant's application. That application was refused, having regard to the utility of such an application. The first respondent contended that there was no jurisdictional error that would amount to an arguable case identified by the applicant in his application.
Because Mr Ardino did not obtain the leave of the Court to withdraw from the matter this morning, I invited the first respondent to make submissions before the applicant was required to make submissions. At the completion of the first respondent's submissions, an opportunity was provided for Mr Ardino to speak with the applicant through an interpreter provided by the Court this morning at the last minute, when the Court for the first time became aware that the applicant may be unrepresented at the hearing.
Mr Ardino made no submissions on behalf of the applicant in support of his application for judicial review, on the basis that the applicant had indicated that he wished to make those submissions himself to the Court. The applicant submitted to the Court that the opinion expressed by the Tribunal is not objective and that the Tribunal had made a personal decision. The applicant then proceeded to state various aspects of his claims and assertions that he had made to the Tribunal. The applicant’s submissions made plain that the applicant was doing no more than disagreeing with findings and conclusions made by the Tribunal. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
To the extent that the applicant was contending that there was any bias on the part of the Tribunal in its decision, that is a serious claim and would require particulars. Disagreement with the factual findings made by the Tribunal is not sufficient to demonstrate either bias or apprehended bias. There is nothing in the way in which the Tribunal has approached the review or its decision that would suggest to the fair minded bystander that the Tribunal approached its task other than with a mind open to persuasion.
I shall now turn to deal with the applicant’s grounds identified in his application.
Ground 1 complains that the Tribunal failed to take into account relevant considerations, however, provides no particulars of those considerations. It is plain that the Tribunal recited, with particularity, the claims before it. The Tribunal evaluated the evidence before it and made findings adverse to the applicant. Those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
To the extent that the Tribunal did not accept the evidence of the applicant, the evaluation of the applicant's evidence and any credit findings are matters solely for the Tribunal.
Accordingly, ground 1 is rejected.
Ground 2 complains that the Tribunal erred in law by failing to ask the question that it had to decide whether the applicant has a well founded fear of persecution. Again, there are no particulars in support of this ground. It is clear that the Tribunal considered whether or not the applicant's claim of persecution was well founded and the Tribunal concluded that it was not satisfied that the applicant has a well founded fear of being persecuted for a Convention reason, if he were to return to the PRC. That conclusion followed a detailed recitation and examination of the applicant's evidence and an evaluation of that evidence, which was open to the Tribunal on the evidence and material before it.
Accordingly, ground 2 is rejected.
Ground 3 is no more than a complaint about the rejection of the applicant's evidence. Again, as referred to above, that finding was open to the Tribunal on the material and evidence before it and for which it provided reasons. The ground would otherwise appear to seek merits review, which this Court cannot undertake.
The Tribunal complied with the statutory requirements under the Act of inviting the applicant to attend a hearing before it and, indeed, the applicant did attend and gave oral evidence. The Tribunal also complied with its obligation under s.424A(1) of the Act in giving to the applicant in writing adverse information that was part of the reason for the Tribunal affirming the decision under review.
The decision of the Tribunal 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 and the applicant's proceeding, commenced by way of application filed on 28 August 2006, is dismissed.

RECORDED : NOT TRANSCRIBED

The first respondent seeks costs fixed in the amount of $4000. I note that such amount is less than is provided in the Federal Magistrates Court Rules 2001, a copy of which was provided to the applicant's legal advisor on the first Court date.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 19 December 2006