SZJVH v Minister for Immigration
[2007] FMCA 1091
•10 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1091 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A |
| SZBYR v Minister for Immigration [2007] HCA 26 |
| Applicant: | SZJVH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3672 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 10 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3672 of 2006
| SZJVH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 25 October 2006 and was handed down on 13 November 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon her practice of Falun Gong. I adopt as background for the purposes of this judgment paragraphs 2 through to 14 of the written submissions filed on behalf of the Minister on 6 July 2007:
The applicant, a citizen of China, arrived in Australia on 16 May 2006.
The applicant applied to the Department for a Protection (Class XA) visa on 22 May 2006.
Essentially, the applicant claims that she left China and fears to return there because she is a Falun Gong practitioner.
The applicant provided a typed statement in support of her Protection visa application containing her claims (court book (CB) 27). The applicant claimed to have been introduced to Falun Gong in 2004 by the General Manager of the company which employed her. She claimed that the General Manager was arrested in July 2005 and sentenced to 3 years imprisonment. The applicant claimed that she was investigated by the “610” office.
Delegate’s decision
A delegate of the Minister refused the application on 28 July 2006 (CB 36-45).
The delegate observed that the applicant’s claims were vague and non‑specific. The delegate reasoned the applicant had not been forced to relocate because of her Falun Gong practice as the applicant’s employment and residential address had remained unchanged. Relying upon country information the delegate found that the applicant’s fears were not well founded because the applicant did not fit the profile of a core Falun Gong member and she did not claim to have been engaged in any activities that would have drawn her to the attention of the authorities.
The delegate noted that as the applicant had departed China lawfully with a passport in her own name this did not suggest that she was of interest to the Chinese authorities.
Application to the Tribunal
On 30 August 2006 the applicant lodged an application for review of the delegate's decision with the Tribunal (CB 46-49).
On 19 September 2006 the Tribunal wrote to the applicant advising that the hearing would be on 13 October 2006 (CB52).
The applicant gave further evidence at the Tribunal hearing on 13 October 2006. The Tribunal questioned the applicant in detail about the Falun Gong system.
The Tribunal decision
In short, the Tribunal concluded that the applicant’s knowledge of the fundamentals of Falun Gong was very limited. It accordingly did not accept that she was a Falun Gong practitioner.
The Tribunal relied principally upon the applicant’s inability to name the manuscript in which the founder of Falun Gong had set out his teachings, or to be able to refer to any significant part of his teachings. The Tribunal also relied upon the applicant’s inability to describe the “Falun” or to describe the “Falun” symbol. It also relied on her failure to recite the names or be able to describe the sequence of the five sets of exercises.
The Tribunal was not satisfied that the applicant’s involvement in Falun Gong in Australia was done otherwise than for the purpose of strengthening her claim to be a refugee. The Tribunal was not satisfied that the applicant had a genuine interest in practicing Falun Gong in Australia.
These proceedings began with a show cause application filed on 8 December 2006. I find that application was filed within time.
I made procedural orders in relation to the application on 5 February 2007. I gave the applicant the opportunity to file an amended application and evidence in support of it. The applicant filed an amended application on 26 March 2007. On 16 April 2007 I conducted a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and ordered the Minister to show cause why relief should not be granted in relation to an asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).
Under the Federal Magistrates Court Rules the applicant is restricted to the ground upon which the Minister was ordered to show cause. Nevertheless, the Minister, in his written submissions, has dealt with all of the grounds raised in the amended application and I will deal with them.
The applicant also relies upon her affidavit filed with her original application. I received that as a submission. It repeats ground two in the amended application and in substance adds nothing to it. The evidence that I have before me is restricted to the court book filed on 15 January 2007.
I invited the applicant to make oral submissions in support of her application but she indicated that she was unable to do so. Essentially, she is concerned with the outcome before the Tribunal. As I explained to the applicant, if a Tribunal decision is valid only the Minister can change it.
The applicant in her amended application asserts that the Tribunal failed to consider her application in accordance with s.424A of the Migration Act in that the Tribunal failed to notify her of the reason or part of the reasons for affirming the decision. This claim is expanded upon in a document attached to the amended application which is in template form relatively common in applications before the Court. Relevantly, that document asserts that the Tribunal based its findings on information or a lack of information contained in the applicant's application for a visa and that the disclosure of that information was required pursuant to s.424A. That assertion is not borne out by the terms of the Tribunal decision. It appears from the findings and reasons of the Tribunal on pages 71 to 74 of the court book that what was determinative was the evidence given by the applicant at the hearing conducted by the Tribunal. In short, the applicant was not believed.
Even if that were wrong the obligation to disclose information contained in or with a protection visa application provided to the Minister's Department needs now to be considered by reference to the decision of the High Court in SZBYR v Minister for Immigration [2007] HCA 26. In particular, a clear distinction needs to be drawn between the Tribunal's reasoning process and the form and content of protection visa information.
In other respects, I agree with and adopt for the purposes of this judgment paragraphs 20 to 22 of the Minister's written submissions:
The particulars of this ground identify the first respondent’s file and the applicant's application for a visa as the information in respect of which no particulars were provided. The recent decision in SZBYR v Minister for Immigration [2007] HCA 26 at [17] indicates that the operation of s.424A is to be determined in advance - and independently of the Tribunal's reasoning on the facts of the case. The High Court appears to have construed s.424A as only applying to information which objectively rejects, denies or undermines the applicant's claims to be a person to whom Australia owes protection obligations. Further, at [18] the decision also makes it clear that “information” is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
The applicant has not identified what information in the first respondent’s file or her protection visa application objectively undermines the applicant’s refugee claims as such. It is submitted that this ground must fail unless the applicant can identify information in the first respondent’s file of the sort contemplated by the High Court in SZBYR.
In any event, even if there was a breach of s.424A then it is of no consequence as the finding of the Tribunal that the applicant was not a Falun Gong practitioner made the rejection of her claims inevitable. This finding was not in any way dependent on reliance on any information in the first respondent’s file or in her protection visa application. The High Court in SZBYR at [29], [32],[86] and [91] has indicated that this would be a proper basis for the refusal of relief on discretionary grounds.
The Minister's written submissions deal adequately with the other grounds raised by the applicant. The applicant had asserted breaches of s.91R of the Migration Act, a failure to consider her claims and a failure to consider independent information. None of these claims were properly particularised and none has any substance. I agree with and adopt for the purposes of this judgment paragraphs 17 to 19 of the Minister's written submissions:
Given that the Tribunal did not accept the applicant’s key claim of being a Falun Gong practitioner or that she had suffered the harm in the past that she alleged she had suffered, the only aspect of s.91R which the Tribunal had to address was s.91R(3). Because the Tribunal was not satisfied that the applicant’s involvement in Falun Gong in Australia was done otherwise than for the purpose of strengthening her claim to be a refugee it was obliged to disregard that conduct in assessing her claim. As the Tribunal did not accept her practice in Australia for the purposes of assessing her claim it has complied with the requirements of the section.
Failure to consider the Applicant’s claims
On its face the decision of the Tribunal appears to comprehensively consider the applicant’s claims. As no particulars have been given of what claims were allegedly not considered, and no evidence has been filed in support of this allegation, this ground must fail.
Failure to consider proper independent information
On its face the decision of the Tribunal considers independent information which is relevant to the applicant’s claims. As no particulars have been given of what independent information allegedly was not considered, and no evidence has been filed in support of this allegation, this ground must fail.
I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,000. The applicant did not wish to be heard on costs. In this case the scale provides appropriate recompense to the Minister having regard to the three hearings that have been conducted and the preparation done on behalf of the Minister. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 July 2007
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