SZJRK v Minister for Immigration

[2007] FMCA 1746

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1746

MIGRATION – Review of decision of RRT – where applicant fails to satisfy the Tribunal of the genuineness of his claims.

Migration Act 1958, ss.91R, 424
Federal Court Rules

SZBYR v Minister for Immigration [2007] HCA 26

Applicant: SZJRK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File number:	SYG3321 of 2006

Judgment of: Raphael FM

Hearing date: 26 September 2007

Date of last submission: 26 September 2007

Delivered at: Sydney

Delivered on: 26 September 2007

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $2,600.00.

3. The name of the First Respondent be changed to Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3321 of 2006

SZJRK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the people’s republic of China. He arrived in Australia on 24 February 2006. On the 3 March 2006 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 19 May 2006 a delegate of the Minister refused to grant the protection visa and on 23 June 2006 the applicant applied for a review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 6 September 2006. On 19 September 2006 the Tribunal determined to affirm the decision under review and it handed that decision down on 10 October 2006.

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were set out in a statement annexed to his application for a protection visa found at [CB 27] and repeated at [CB56 - 57] in the Tribunal’s decision. The applicant stated that he was a married man whose wife had taken up the practice of Falun Gong in order to improve her health. He became a member in 1996 and they practiced together in public places. He claims to have promoted Falun Gong to his colleagues and friends. After the 1999 crackdown his home was searched and his wife, having admitted to being a member, was taken away and placed in a re-education camp for one year.

3. This affected her mentally and the applicant was required to look after her upon her release. The applicant says that he continued to practice Falun Gong as did his wife for health reasons. In November 2005 he received information that the police were going to target his wife and himself for his activities. They both tried to get passports but his wife was unable to do so. He managed to obtain one in September 2005 and then left Australia in February 2006. His wife is in hospital and he claims that he cannot return to China.

4. The Tribunal’s statement of reasons reveals that the applicant was questioned quite closely about his knowledge and understanding of the philosophy of Falun Gong. He appears to have been tested against information obtained by the Tribunal from a seminar that the member attended in Melbourne in 2006. To the extent that there is some criticism that the Tribunal relied upon out of date information this cannot be sustained. It appears that the applicant brought with him to the hearing some notes and referred to them whenever he was asked questions by the Tribunal. The Tribunal made several attempts to prevent him from doing this but it seems that he outwitted it and utilised the notes with some frequency. This caused the Tribunal to doubt his credibility as did his apparent lack of knowledge of some elements that the Tribunal considered basic to the practice of Falun Gong exercises and an understanding of its philosophy. These matters are all dealt with in the Tribunal’s decision between [CB 59] and [CB 62].

5. In its findings and reasons the Tribunal summarises the applicant’s inability to provide it with satisfactory confirmation of his knowledge or achieve the standards which Dr Benjamin Penney, who gave the seminar which the Tribunal member attended, considered normal for a genuine Falun Gong devotee:

   “The applicant has shown very little interest in practising Falun Gong in the six months since arriving in Australia.  A genuine Falun Gong practitioner could reasonably have been expected to have done so.  The Tribunal is not satisfied that he has practised Falun Gong in the past or that he will in the future.  The Tribunal is not satisfied that the applicant has a subjective fear of Convention-related persecution in China or that he faces a real chance of such persecution.”

6. The applicant commenced proceedings in this court by way of an application filed on 14 November 2006. On 7 February 2007 he filed an amended application in a form that will be familiar to any advocate or judicial officer practising within this jurisdiction. It is a formula conspicuous by its lack of relevant particularisation and throws out some general observations about s.424 of the Migration Act 1958 (the “Act”). Before me today the applicant had the assistance of a photocopied printed form in the Mandarin script which the interpreter kindly translated. This indicated that the applicant believed that the Tribunal had not followed the Act when it assessed his case. No particulars were provided other than in the further allegations set out below and I am unable to comment upon the allegations without them.

7. The applicant suggested the Tribunal was biased against him. As has been said many times an allegation of bias is a serious allegation to make against a decision maker and must be clearly stated and properly proved. Mere assertion without any particularisation is not only in breach of the Federal Court Rules but is not enough. There is nothing that I can see on the face of the document that would indicate any suggestion that the Tribunal came to its decision with a mind fixed and unable to be altered. Nor is there any indication that a reasonable person with some knowledge of the activities of the Tribunal would have grounds for considering that the Tribunal would not bring an open mind to the decision making process.

8. The applicant argues that the Tribunal assessed his claims based upon assumptions. I cannot actually see what assumptions it did base its decision upon. To my way of reading the decision it was clearly based upon a failure to be satisfied that the applicant truly was a Falun Gong practitioner because of his inability to show the Tribunal that he understood very much about the organisation or its methods. The applicant says that the Tribunal did not understand his claims and therefore did not apply s.91R of the Act.

9. My reading of the Tribunal’s grounds and reasons for decision indicate to me that the Tribunal clearly understood what the applicant was saying. He had given a statement, he did not enlarge upon it. That statement contained information that he had been a practitioner of Falun Gong but he was unable to properly demonstrate the accuracy of that statement. It is not surprising that the Tribunal failed to reach the state of satisfaction it considered was required.

10. The applicant then argued that the Tribunal refused his application without any basis or other material. This of course cannot be sustained in the light of the grounds and reasons for decision. Nor can the statement that it referred to irrelevant material. The only material referred to by the Tribunal was information it had about the Falun Gong organisation, its adherents and its methods that had been obtained from the seminar and other independent country information. That was clearly relevant.

11. Finally, the applicant told me that there was a breach of s.424A because the Tribunal did not put to him its reasons for coming to the view that he had failed to satisfy it that he was a person to whom the conventions applied. This allegation was substantively rejected by the High Court in SZBYR v Minister for Immigration [2007] HCA 26 where their Honours Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ said at [18]:

    “Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].

    "does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”

12. The decision made by the Tribunal in this case was clearly one that was within its power. It did not reach the state of satisfaction required by the Act. It did not do so on the basis of a perfectly reasonable test of the applicant’s knowledge of the philosophy which he alleged he espoused. His knowledge was scant. The Tribunal lacked satisfaction. There is no jurisdictional error in this. The application is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $2,600.00.

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

Associate: 

Date: