SZJRJ v Minister for Immigration

[2007] FMCA 597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 597

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), ss.91R, 424A

Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: SZJRJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3320 of 2006

Judgment of: Driver FM

Hearing date: 19 April 2007

Delivered at: Sydney

Delivered on: 19 April 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Clayton Utz

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 $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3320 of 2006

SZJRJ

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 Tribunal affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa.  The decision was handed down on 10 October 2006.  The applicant sought judicial review of that decision by way of a show cause application filed on 14 November 2006.  In that application he asserted actual notification of the decision on 19 October 2006.  On that basis I find that the applicant was filed within time. 

2. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  I adopt as background for the purposes of this judgment pararaphs1 through to 6 of the Minister's outline of written submissions filed on 12 April 2007:

   The applicant is a (now) 29 year old Chinese citizen who arrived in Australia on 28 January 2006 (court book (“CB”) 27).  On 6 February 2006 he lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural and Indigenous Affairs (as then named) (CB 1 to 28) based upon his alleged practice of Falun Gong. 

   After the Minister’s delegate refused the applicant’s protection visa application on 8 May 2006 (CB 35 to 43) he applied to the Tribunal on 8 June 2006 to review that decision. 

   On 4 July 2006 the applicant was invited to give evidence at a hearing of the Tribunal and was informed by that invitation that the Tribunal was unable to make a decision in the applicant’s favour based on the material provided to date (CB 51 to 52).  The applicant accepted that invitation (CB 53).

   On 1 August 2006 applicant appeared before the Tribunal and gave oral evidence with the assistance of a Mandarin interpreter (CB 76.3). 

   On 10 October 2006 the Tribunal handed down a decision made on 31 August 2006 affirming the decision of the delegate not to grant the applicant a protection visa (CB 73 to 81). 

   The Tribunal’s decision

   The Tribunal:

   a)Found that on the basis of the applicant’s own evidence, there was no record of any Convention related adverse treatment of the applicant by Chinese authorities on the basis of any association by him with Falun Gong (CB 79.5).

   b)Found that the claims regarding the applicant’s marriage certificate and the registration of his child were not related to his Falun Gong claims and did not, by themselves, constitute a Convention related fear of persecution (CB 79.6 to 79.8).

   c)Did not give weight to hearsay evidence that a fellow, more senior Falun Gong practitioner, had told the applicant that he was under threat.  The Tribunal also did not consider it plausible that the person who had warned the applicant was not the subject of suspicion himself and had remained in China, given he was a more senior partitioner (CB 79.9). 

   d)Found no evidence of any disruption to the applicant’s life because of Falun Gong, prior to his departure from China (79.9) nor that he had any adverse relationship with the Chinese authorities (CB 80.2).

   e)Found that the applicant had a very limited knowledge of Falun Gong and the fact that he had not practised Falun Gong since arriving in Australia or contacted any Falun Gong organisation convinced the Tribunal that the applicant was not a practising adherent (CB 80.3).

   f)Found the applicant’s claims were not credible and did not accept that the applicant would wish to participate in Falun Gong exercises on return to China given his failure to do so in the free atmosphere of Australia (CB 80.5).

   g)Concluded that the applicant was unlikely to be of interest to the Chinese authorities given his ability to obtain a passport in his own name and leave China without difficulty, using that document (CB 80.6 to 80.8).

   h)Found that the applicant was not a person who would be perceived as a person of interest on return to China nor would he face a real chance of serious harm for a Convention reason (CB 80.9 to 81.1).

3. The applicant now relies upon an amended application filed on 29 December 2006. The grounds in that application are in a document attached which is in template form. The amended application asserts that the Tribunal failed to meet its obligations under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”); that the Tribunal failed to assess the applicant's chance of persecution as a member of a particular social group in China; that the Tribunal failed to refer to sufficient independent information for the consideration of his application; and that the decision of the Tribunal was not based on evidence and materials.

4. The applicant continues to rely upon his affidavit, filed with his original application.  That affidavit repeats two of the four grounds in the amended application.  I received that affidavit as a submission. 

5. I also have before me the court book, filed on 2 February 2007.  The applicant denied receipt of the court book although exhibit R1 establishes to my satisfaction that the Minister did all that he could to serve the court book on the applicant at the address for service disclosed in his amended application.  The applicant told me that he had a new address for service now, but he could not remember what it was.  He has not notified the Court or the Minister of any change in his address for service.  I note that he has changed his residential address to 8 South Parade, Canterbury, New South Wales, 2193.  The Minister's solicitors provided the applicant with a copy of the court book for the purposes of today's hearing. 

6. The applicant took the opportunity to present oral submissions in support of his application. As a result of hearing him, however, I am satisfied that there is no substance in any of the asserted jurisdictional errors. I pressed the applicant to identify what information the Tribunal failed to disclose to him that it should have. He was unable to identify any. It appears to me from reading the decision of the Tribunal (commencing at CB 73), that the Tribunal decision turned upon information provided by the applicant himself in support of his review application. I find that there was no breach of s.424A of the Migration Act.

7. In relation to the assertion that the Tribunal failed to assess the applicant's chance of persecution as a member of a particular social group, the applicant identified that social group as Falun Gong practitioners in China.  It is clear, however, that the Tribunal did consider that claim.  The Tribunal recognised that Falun Gong practitioners in China did face of a risk of persecution.  However, the Tribunal was not satisfied that the applicant was ever a practising member of Falun Gong and did not accept that the applicant's claims in relation to his Falun Gong association had any credibility.  I reject the second ground of review. 

8. Neither is there any substance in the third and fourth grounds of review.  The Tribunal made its decision on the basis of the information presented by the applicant.  It was entitled to proceed in that way.  The Tribunal was not required to go in search of other information.  There was evidence before it to support the decision, namely, the applicant's own evidence. 

9. The Minister's submissions were responsive to the original rather than the amended application.  There was a substantial overlap in the grounds in the two applications. To the extent that the original application may have some continuing relevance, I agree with and adopt, with necessary amendments, for the purposes of this judgment paragraphs 7 through to 17 of the Minister's outline of written submissions:

   On 14 November 2006 the applicant commenced proceedings seeking judicial review by this Honourable Court.  The application for review raises 4 grounds which can be summarised as follows:

   a)The Tribunal did not properly consider the applicant’s chance of persecution on the basis of his practise of Falun Gong;

   b)The Tribunal failed to consider the application in accordance with s.91R of the Act;

   c)The Tribunal breached s.424A of the Act; and

   d)The Tribunal did not provide the applicant with adequate particulars of independent country information.

   There is no jurisdictional error of the kind alleged, or at all, present in the Tribunal’s decision.

   Ground 1:  consideration of the applicant’s claims

   There is nothing arising from the Tribunal’s decision which indicates that the Tribunal failed to consider the applicant’s claims insofar as they related to his alleged adherence to Falun Gong, or at all.

   In fact when the applicant made claims relating to his marriage certificate and registration of his child, the Tribunal considered those claims both in relation to the applicant’s Falun Gong claims and also whether they gave rise to protection claims separately.

   The Tribunal accepted that genuine Falun Gong practitioners may suffer harm in China but was unable to be satisfied on the applicant’s own evidence that he was one such genuine practitioner.  That finding was open to the Tribunal.

   Essentially this ground seeks impermissible merits review and ought to be dismissed.

   Ground 2: s.91R

   Again this ground invites merits review which is excluded from the purview of this Honourable Court’s jurisdiction:  NAHI v Minister for Immigration [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 - 42.

   The Tribunal properly considered and applied s.91R of the Act. It thoroughly considered the claims as articulated by the applicant and was not satisfied that the applicant faced serious harm on return to China.

   Ground 3: s.424A

   To the extent that the ground alleges that the applicant was distressed at hearing this ground is not entirely clear. If it is alleging that matters which formed part of the Tribunal’s decision and which were subject to s.424A(1) were not put to him for comment, then the ground is not particularised at all but, moreover, could not be made out on that basis.

   If it is some complaint that the Tribunal did not put its entire findings and reasons to the applicant for comment prior to handing down its decision, then this is misguided as the Tribunal is not required to put its conclusions and thought processes for s.424A comment.

   Ground 4:  independent country information

   The information the applicant refers to (whilst not particularised) would, inevitably, come within the purview of the exception provided by s.424A(3)(a).  Accordingly, there can be no error constituted by a failure of the Tribunal to put to the applicant independent country information and the ground should be dismissed.

10. I find that the decision of the Tribunal is free from jurisdictional error and is thus a privative clause decision.  Accordingly, the judicial review application must be dismissed.  I will so order. 

11. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $3,700, including counsel's fees.  That is substantially less than what scale costs would be under the Court Rules.  The applicant did not wish to be heard on costs.  

12. I 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 $3,700.

13. I further direct that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

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

Associate: 

Date:  24 April 2007