SZKBN v Minister for Immigration - [2008] FMCA 508

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 508

MIGRATION – Application to review decision of Refugee Review Tribunal – no point of principle.

Migration Act 1958 (Cth), ss.424A, 425

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

SZKBN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 207 of 2007

Judgment of:

Barnes FM

Hearing date:

16 April 2008

Delivered at:

Sydney

Delivered on:

16 April 2008

REPRESENTATION

Applicant:

In Person

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 207 of 2007

SZKBN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 19 December 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in March 2006 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing. After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) putting information to him for comment. In its reasons for decision the Tribunal recorded that it did not receive a reply to that letter and accordingly made its decision without taking further action to obtain the applicant's views on that information.
The Tribunal set out the applicant's claims as made in connection with his protection visa application. In essence he claimed that he had been a Falun Gong practitioner since August 1997, that in 2000 he had been warned by local police not to practice Falun Gong and that in March 2000 he had been sent to a detention centre for over five months, during which time he went on a hunger strike and was mistreated.
In his protection visa application the applicant claimed that he was “found in a life threatening situation” and being “afraid of taking responsibility” if he “died there” the police asked his family to take him home. He claimed that he had subsequently travelled overseas to Malaysia and Singapore and was warned by the police shortly after he returned that if he stayed in China he would be gaoled. Subsequently he came to Australia.
The Tribunal set out in some detail the conduct of the Tribunal hearing, the claims made by the applicant and the issues that it raised with him in the course of the hearing. In particular it detailed a discussion in relation to what occurred during the detention of the applicant, the circumstances of his travel overseas and return to China and his employment history.
The Tribunal also described in detail the s.424A letter that it had sent to the applicant. It explained that it had put to the applicant that the reasons he gave at the hearing as to why he was released from detention had not been included in his visa application form and the relevance of such information in relation to whether the Tribunal would, in effect, accept the applicant's claims or find that he was not a credible witness and that the detention complained of did not occur.
The Tribunal noted that it had put to the applicant in the s.424A letter its credibility concerns in relation to differences in his claims in his application form and at the hearing regarding his employment and 2005 travel to Malaysia and Singapore and what he said occurred in China. It referred to the fact that the applicant had not made inquiries or sought refugee protection in Malaysia or Singapore, which may indicate that he did not have a subjective fear of persecution in China. The Tribunal had also put to the applicant for comment information in relation to a graduation certificate on his Departmental file in relation to his business visa application and his qualifications, which were not consistent with his education history in his protection visa application and the possible implications in relation to his credibility. As indicated above, the Tribunal recorded that the applicant failed to provide comments within the prescribed time frame in response to the s.424A letter.
In its findings and reasons the Tribunal concluded that the applicant's claims were not credible. It rejected the applicant’s claims that he had been detained for the reason that he was a Falun Gong practitioner. It was not satisfied that he had suffered harm in China amounting to persecution for a Convention reason. In reaching that decision the Tribunal had regard to each of the matters referred to in the s.424A letter, inconsistencies and illogicalities in the applicant’s explanations of a number of matters, his failure to include certain matters in his original protection visa application and difficulties the Tribunal had with his explanations of matters of concerns. It found that the applicant was not a credible witness. It did not accept that he had been detained or that the consequences complained of thereafter had occurred. It was not satisfied that if the applicant had a subjective fear of persecution in China he would not have made inquiries or sought refugee protection in Malaysia or Singapore or that his return to China was consistent with a well‑founded fear of persecution.
In addition the Tribunal was not satisfied that at the hearing the applicant had been able to provide it with details on matters such as the names of Falun Gong exercises that it would ordinarily expect from someone who held Falun Gong convictions. This, combined with the Tribunal’s view of the applicant’s overall lack of credibility, as well as his return to China after the trip to Malaysia and Singapore, led it to find that he did not in fact hold the Falun Gong convictions he claimed. In light of its credibility findings the Tribunal also found that the applicant was not warned by the head of his work unit or by several policemen as claimed, that he was not arrested and detained or warned by the police after his return from his trip to Malaysia and Singapore. The Tribunal found that given the applicant’s subsequent return to China, the chance that harm amounting to persecution would befall him in the reasonably foreseeable future was remote and that he did not have a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal decision by application filed in this Court on 22 January 2007. The application contains three generally expressed and unparticularised grounds. The accompanying affidavit indicates that the applicant does not want to go back to China. The applicant did not file written submissions.
In oral submissions today the applicant appeared to claim that he did not provide full details to the Tribunal of his claims. He expressed concern as to whether or not the Chinese authorities would become aware of his circumstances. However, as I explained to the applicant, it is not open to the Court to determine whether he is a refugee, but rather to determine whether the Tribunal made a jurisdictional error. The fact that the applicant now says that he did not tell the Tribunal everything does not establish that the Tribunal made a jurisdictional error on the material before it at the time of its decision.
The first ground in the application is that the making of the decision was an improper exercise of the power conferred by the Migration Act. This assertion is not in any way particularised and it does not establish jurisdictional error.
The second ground is that the applicant was denied procedural fairness in connection with the making of the decision. Again, this ground is not particularised. In oral submissions the applicant indicated that at the hearing he told the Tribunal member that he had been persecuted in China and how he was persecuted but suggested that having just arrived in Australia he had not explained everything. Insofar as he is endeavouring to provide an explanation for his failure to provide full details, again that does not establish that he was denied procedural fairness by the Tribunal or that the Tribunal otherwise fell into error. In that respect I note that after the hearing the Tribunal raised with the applicant, by the s.424A letter, a number of matters of concern, some of which may in fact have gone beyond its strict obligations in terms of s.424A, at least as seen in light of SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] – [18]. The applicant thus had an opportunity to elaborate on and provide a further explanation for his claims, however, he did not do so.
The Tribunal was bound to observe the statutory embodiment of procedural fairness in the relevant part of the Migration Act, including s.424A of the Act. In that regard I note that no issue is taken in relation to compliance with the formal requirements in relation to notification. There is nothing in the material before the Court to indicate that there was any failure by the Tribunal in that regard.
The Tribunal put to the applicant information obtained from his business visa file, the graduation certificate, information he had provided in that application form, material from the protection visa application and other associated matters. There is nothing in the material before the Court to establish that the Tribunal failed to comply with s.424A either in the letter that it did send or in relation to any other aspect of its reasoning and information before it. Nor is there anything to establish that there was any other failure to accord procedural fairness or to raise a concern about the conduct of the Tribunal hearing based on the Tribunal account of what occurred in light of the requirements of s.425 of the Migration Act. I note in that respect that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. There is no transcript of the Tribunal hearing before the Court.
The final ground in the application is a claim by the applicant that he would face a risk of being gaoled if he returned to China. That ground does not establish jurisdictional error. Insofar as it seeks merits review, merits review is not available in this Court.
As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

As the applicant has been unsuccessful he should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

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

Associate:

Date: 2 May 2008