SZJYK v Minister for Immigration - [2007] FMCA 493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 493

MIGRATION – Refugee Review Tribunal – Practice and Procedure – whether applicant has raised an arguable case for the relief claimed pursuant to 44.12 of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001 r.44.12
Migration Act 1958 (Cth) ss.65, 65(2)

Applicant:

SZJYK

First Respondents:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondents:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3922 of 2006

Judgment of:

Emmett FM

Hearing date:

26 March 2007

Date of last submission:

26 March 2007

Delivered at:

Sydney

Delivered on:

26 March 2007

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Mr A. Marcus, Australian Government Solicitors

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3922 of 2006

SZJYK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondents

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This matter was set down for a show cause hearing, pursuant to r.44.12 of the Federal Magistrates Court Rules 2001, pursuant to Orders of this Court made on 9 February 2007. By those Orders, the applicant was granted leave to file and serve an amended application and any additional evidence by way of affidavit by 19 March 2007. No further document has been filed by or on behalf of the applicant.
The applicant was unrepresented before this Court this morning, although had the assistance of an interpreter. The applicant informed the Court that he had provided a letter in support of his application for judicial review to the registry around 18/19 March 2007. There is no such document on the Court’s file, nor was any such document served upon the first respondent. The applicant identified the document as a letter of support verifying his practice of Falun Gong and confirmed that the document was similarly dated 18/19 March 2007. The applicant had in Court a handwritten document in Chinese that he stated was the original. However, in circumstances where the document post-dates the hearing and was not given to the Tribunal by the applicant for the purposes of its review, such a document cannot be relevant to the judicial review by this Court of the Tribunal's decision. In any event, it is apparent from consideration of the Tribunal's decision that the applicant was given an opportunity by the Tribunal to present evidence by members of Falun Gong that he was a Falun Gong practitioner and that the Tribunal would accept such evidence up until seven days after the hearing and, if required, even later than seven days.
No further evidence was received by the Tribunal from the applicant. In the circumstances, an English translation of the document sought by the applicant to be provided to this Court, was rejected as irrelevant.
The grounds of the applicant's application filed by him on 21 December 2006 are as follows:
“1. I am a citizen of China. If I go back to China I will be risk of suffering (sic) persecution with in the meaning of the 1951 convention relating to the status of refugee and the 1967 Protocol relating to the status of refugees.
2. Member of the RRT failed to understand my clains nad (sic) failed to consider relevant matters farther particulars to be previded.
3. The respedent refused to grant my protevtion visa without any preper grounds and proper investingetion (sic).”
Ground 1 does not disclose any error capable of demonstrating jurisdictional error.
Ground 2 complains that the Tribunal failed to understand the applicant's claim and failed to consider the relevant matters. No further particulars or evidence have been provided by the applicant in support of that allegation and no meaningful submission was made by the applicant in support of this ground.
The applicant is a citizen of China who arrived in Australia on 29 May 2006 and lodged an application for a protection visa on 9 June 2006. In support of the protection visa application, the applicant claimed that he became a Falun Gong practitioner in China in early 2001, resulting in his arrest and questioning by police and release on condition he never practised Falun Gong again. The applicant claimed that he had never given up practising Falun Gong and kept it up every day. The applicant claimed that he would be arrested and gaoled upon return by the Chinese authorities, because he would never give up practising Falun Gong.
On 18 July 2006, a delegate of the first respondent refused the applicant a protection visa, on the basis that he was not a person to whom Australia has protection obligations. The Tribunal decision is accurately summarised by the submissions of the first respondent, at paragraphs 7-12 of the written submissions set out as follows:
“7. However in 2005, his friend was arrested and disappeared. Later the applicant’s house was searched by police and took away some of the books and pamphlets he held about Falun Gong. The applicant said the police detained him for 20 hours and told him to stop practicing the Falun Gong. The applicant became aware the local police and security guards at the place were (sic) he worked were watching over him. The applicant subsequently became unemployed and his family told him to flee China.
8. The applicant claimed that he practiced his exercises in Sydney and provided a statutory declaration to the Tribunal from a person who claimed to practice with him and with whom he went to Canberra for a “sit-in for Falun Gong.”
9. The Tribunal did not accept the applicant was a Falun Gong practitioner essentially on the basis that his claims were vague and insubstantial and his oral evidence was substantially lacking in detail about key events. Importantly, the Tribunal considered the applicant’s “deliberately superficial approach” to the Falun Gong movement inconsistent with its aims and led the Tribunal to conclude that he had never been a Falun Gong practitioner.
10. Accordingly the Tribunal did not accept the applicant had been arrested and detained by the police or that they had confiscated Falun Gong materials.
11. The Tribunal considered the applicant’s sur place claim in relation to his practice of Falun Gong while in Australia, noted the letter provided in support and the relevance of s 91R of the Migration Act 1958 to his claim. On the evidence, the Tribunal was not satisfied that the applicant’s involvement in Falun Gong in Australia was done otherwise than for the purpose of strengthening his claim to be a refugee.
12. Having made these findings, the Tribunal was unable to find that the applicant had a well-founded fear of persecution should he return and therefore was not satisfied the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.”
It is clear from the Tribunal's decision that it disbelieved the applicant and, accordingly, rejected his claims. The Tribunal found the applicant's evidence relating to his claims to be vague, lacking in detail and inconsistent with the independent information relating to the treatment and arrest of Falun Gong practitioners.
The Tribunal did not accept that the applicant is associated with anyone who is of adverse interest to the Chinese authorities in connection with Falun Gong.
Whilst the Tribunal was prepared generally to accept that the applicant was practising Falun Gong in Australia, it was not satisfied, on the evidence and material before it, that the applicant's involvement in Falun Gong in Australia was done otherwise than for the purpose of strengthening his claim to be a refugee. The reason for the Tribunal's decision was because of its adverse findings on the applicant's credibility.
It is clear from the decision that the Tribunal identified with some particularity the evidence given by the applicant to the Tribunal. The Tribunal noted various matters it explored with the applicant and noted the applicant's responses. Failing to accept assertions is not the same as failing to consider assertions.
The applicant stated, in ground 2 of his application, that particulars were to be provided. None were. The applicant was unable to identify any claim made by him that the Tribunal failed to understand or any relevant matter that he claimed the Tribunal failed to consider.
At the heart of the applicant's complaint is the disagreement with the Tribunal's rejection of his evidence. To the extent that the application seeks merit review, that process is not open to this Court.
Ground 3 complains that the Tribunal refused to grant a protection visa without proper grounds and proper investigation. This assertion by the applicant misconceives the role and duty of the Tribunal. Section 65 of the Act provides that it is for an applicant to satisfy the decision‑maker that he meets the criteria required for being a refugee. Section 65(2) of the Migration Act 1958 (Cth) mandates that if the decision-maker is not so satisfied, then that decision-maker must refuse a protection visa.
In the proceedings before this Court, the Tribunal did not reach the requisite satisfaction. There is no general obligation on the Tribunal to make further inquiries. The applicant has not identified any basis for departing from that general obligation of the Tribunal that would suggest that its failure to make any further inquiry was an error going to the jurisdiction of the Tribunal.
The findings and conclusions of the Tribunal appear to be open to the Tribunal on the evidence and material before it and for which it provided reasons. No other failure by the Tribunal in the conduct of its review, including the making of its decision, is identified by the applicant and none is apparent to this Court.
In the circumstances, the applicant has not satisfied the Court that the application has raised an arguable case for the relief claimed and, accordingly, the application is dismissed, pursuant to r.44.12 of the Federal Magistrates Court Rules 2001.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 13 April 2007