SZJJU v Minister for Immigration

[2007] FMCA 261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 261

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.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, ss.91R, 424A

Applicant: SZJJU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2666 of 2006

Judgment of: Driver FM

Hearing date: 6 March 2007

Delivered at: Sydney

Delivered on: 6 March 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Hanstein
Australian Government Solicitor

ORDERS

1. The Court directs that the name 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 $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2666 of 2006

SZJJU

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 handed down on 22 August 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant filed a show cause application in this court on 20 September 2006.  That application asserted notification of the Tribunal decision on 31 August 2006.  On that basis I find that the application was filed within time.

2. I will direct that the name of the first respondent be amended to the Minister for Immigration and Citizenship. 

3. The background to the applicant's protection visa claims and the Tribunal decision on them is summarised in the Minister's outline of submissions filed on 1 March 2007.  I adopt as background for the purposes of this judgment paragraphs 2 through to 6 of those written submissions:

   The applicant, a citizen of People’s Republic of China, arrived in Australia on 21 February 2006.[1]  On 16 March 2006, he lodged an application for a protection visa.[2]  The protection visa application was refused by a delegate of the Minister on 27 March 2006[3].  The Tribunal affirmed the decision of the delegate to refuse the protection visa application, in a decision dated 1 August 2006 and handed down on 22 August 2006.[4]

   The present proceedings, seeking judicial review of the Tribunal’s decision, were commenced on 20 September 2006.  An amended application was filed on 15 November 2006.

   Tribunal’s decision

   The applicant claimed to have a well-founded fear of persecution because the authorities had in the past suspected him of participation in Falun Gong and because, subsequently, he became a Falun Gong practitioner.[5]

   The Tribunal did not accept that the applicant was or had ever been a Falun Gong practitioner.  It reached this conclusion because the applicant could not perform the second set of Falun Gong exercises; what the applicant told the Tribunal about where the “Falun” was located and how it functioned did not accord with the teaching of the founder of Falun Gong; and the applicant had not provided evidence from his claimed fellow Falun Gong practitioners as to his genuineness as a Falun Gong practitioner and that they had practised with him.  The Tribunal considered that, if the applicant had been a Falun Gong practitioner since 2003 as he claimed, the second set of Falun Gong exercises would have been second nature to him.[6]

   On the basis of these adverse credibility findings, the Tribunal did not accept that the applicant had come to the adverse interest of the Chinese authorities in the past because of suspected or actual involvement with Falun Gong.  Further, the Tribunal did not accept that there was a real chance that the applicant would be persecuted on return to China for reason of his claimed involvement with Falun Gong.[7]

   [1] Relevant Documents (“RD”) 15

   [2] RD 1

   [3] RD 35

   [4] RD 94

   [5] see RD 19, 97-99

   [6] RD 100

   [7] RD 100-101

4. I gave directions in this matter on 12 October 2006.  I required from the applicant by those orders either a statement of particulars of his initial application or an amended application.  I also gave the applicant the opportunity to file affidavit evidence and an outline of legal submissions.  The applicant complied with the order for an amended application on 15 November 2006.  The grounds annexed to that amended application are in a template form, with which the Court is now very familiar.

5. There are three grounds identified. The first is an asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The second is an asserted breach of s.91R of the Migration Act, coupled with an allegation of bias. The third is an assertion that the Tribunal failed to refer to sufficient independent information for the consideration of the review application. There is no substance to any of these grounds.

6. The only evidence I have before me is the book of relevant documents filed on 16 October 2006.  There is no evidence whatsoever to support, in any way, the allegation of bias.  I invited the applicant to explain to me today why he thought the Tribunal was biased.  His response was that, in his opinion, the Tribunal could not understand his claims.  Even if the applicant is right in that belief there is a big difference between being wrong and being biased. 

7. The Tribunal did not breach s.424A of the Migration Act. It is obvious from the record of the Tribunal decision that that decision turned entirely upon the evidence given by the applicant at the oral hearing conducted by the Tribunal. As a result of that hearing the Tribunal disbelieved the applicant's claims. The information upon which the Tribunal made that assessment was information given by the applicant himself for the purposes of the review. Accordingly, s.424A(3)(b) applied.

8. Neither did the Tribunal breach s.91R of the Migration Act. That section was simply not engaged. Because the applicant was not believed the Tribunal did not need to consider whether his claims constituted a well-founded fear of persecution in terms of the consideration of the various elements of s.91R.

9. The Tribunal did find that Australia did not have protection obligations to the applicant.  That was a sufficient and necessary finding based upon the Tribunal's conclusions about the applicant's credibility.  The Tribunal did have regard to independent information about the practice of Falun Gong.  The applicant conceded that, but submitted to me in his oral submissions that the Tribunal's consideration of the information was superficial.  He appears to believe that the Tribunal was under some obligation to consider the subtleties of Chinese culture.  I reject that contention.  The Tribunal had regard to independent information to inform itself about the practice of Falun Gong sufficient for it to test the applicant's knowledge of that practice.  The independent information thereby informed the Tribunal's conclusion that the applicant displayed a wholly inadequate knowledge of Falun Gong. 

10. There is no jurisdictional error apparent in the reasons for decision of the Tribunal.  Neither on the basis of the available material is there any jurisdictional error in the proceeding of the Tribunal leading up to its decision. 

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

12. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $3,500.  Under the Federal Magistrates Court Rules 2001 (Cth) and scale of costs, an amount of $5,000 would ordinarily be payable at this stage of a migration proceeding. The Minister's solicitor and own client costs are in the vicinity of $4,500. The applicant did not wish to be heard on the issue of costs. I accept that costs of $3,500 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis.

13. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,500. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 March 2007