SZKDA v Minister for Immigration

[2007] FMCA 1605

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKDA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1605

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 476
Federal Magistrate Court Rules 2001 (Cth), rr.44.11(c), 44.12

Applicant: SZKDA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG334 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 24 July 2007

Delivered at: Sydney

Delivered on: 26 September 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the First Respondent: Ms T Quinn of DLA Phillips Fox

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.

2. The application filed on 5 February 2007 is dismissed.

3. The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG334 of 2007

SZKDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act1958 (Cth) and has been given the pseudonym “SZKDA”.

2. These proceedings were commenced by an application under s.39B of the Judiciary Act1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 February 2007 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 12 December 2006 affirming a decision of the delegate of the first respondent made on 15 April 2005, refusing to grant the applicant a Protection (Class XA) visa. This decision constitutes a second determination of the Tribunal, differently constituted, as a first Tribunal had already affirmed the delegate’s decision on 21 October 2005. The application was before the second Tribunal by consent order made in the Federal Magistrates Court on 15 August 2006. The applicant seeks relief in the form of constitutional writs against the decision of the second Tribunal.

3. The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for a final hearing.

4. A Court Book ("CB") prepared by the first respondent's solicitors was filed in these proceedings on 1 May 2007.  I have marked it Exhibit "A" and it was read into evidence.

Background

1. The second Tribunal decision of K Hartman, reference 060749792, provides the following information:

   The applicant, who claims to be a citizen of China (PRC) arrived in Australia on 13 March 2005 and applied to the Department of Immigration & Multicultural Affairs for a protection (class XA) visa on 21 March 2005.  The delegate decided to refuse the grant of visa on 5 April 2005 and notified the applicant of the decision and of her review rights. 

   The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugee Convention.

   The applicant sought review of the delegate's decision and the Tribunal, differently constituted, affirmed the delegate's decision on 21 October 2005.

   The applicant sought review of the Tribunal decision by the Federal Magistrates Court and on 15 August 2006 the Court by consent set aside the decision and remitted the matter to the Tribunal to be determined according to law.(CB129)

2. The applicant's claims are effectively summarised in the written submissions prepared by the first respondent's solicitors and I rely on paragraphs 8 to 12 of those submissions for the purposes of this judgment:

   8.In her protection visa application and before the first RRT, the applicant claimed to fear persecution in China because she was a Falun Gong practitioner.  However, at the hearing before the second Refugee Review Tribunal the applicant said that:

   8.1.Her agent told her to say that she was a Falun Gong practitioner so that she would get refugee status and be able to stay in Australia.

   8.2The agent wrote the claims in the protection visa application statement.

   8.3The claims in her statement to the department were not true.

   9.The applicant claims that, although she was not a Falun Gong practitioner, she had practised Falun Gong "a couple of times".  She said that she had gone to a park several times and followed a friend who was practising.  The police came with electric sticks, hit her on the head and she ran away.

   10.The applicant said that she had not practised Falun Gong while in Australia and would not practise Falun Gong if she returned to China.

   11.At the hearing before the second RRT, the applicant also claims that she was a Catholic.

   12.When asked why she feared returning to China, the applicant said that everything in China was not as good as in Australia, and there was no other reason why she did not want to return.

3. The findings of the second Tribunal are effectively summarised in the respondent's written submissions and I rely on paragraph 13 of those submissions:

   13.The RRT accepted the applicant's claim that the information in the statement to the department was false; accepted that the applicant was not a Falun Gong practitioner.

   13.1With respect to the claimed incident with police when she practised Falun Gong in a park, the RRT found that the applicant's inability to recall when this happened suggested that it did not really occur.

   13.2The RRT also found that the applicant was not going to practise Falun Gong if she returned to China.

   13.3With respect to the claims to being Catholic, the RRT doubted that this was true given that the applicant was unable to demonstrate any knowledge of Catholic beliefs.  In any event the RRT found that the applicant had not claimed to fear persecution for reasons of her Catholic religion.

Application for Review of the Tribunal Decision

1. On 5 February 2007, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. The application contained the following grounds:

   (1)Seeking review and appeal to the Court that the Tribunal's decision in regarding to the unsatisfied the criteria set out in s. 36(2) of the Act.

   (2)The Tribunal made an error in finding that I did not have a genuine fear of being persecuted of my religion or for any other Convention reason.

2. At the first Court date, the applicant indicated that she did not wish to participate in the Court sponsored legal advice scheme.  Further, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 4 June 2007.  This was not pursued and nothing was filed.

Submissions and Reasons

1. The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter.  At the hearing, the applicant confirmed that she had not filed an amended application or written submissions.  When invited to make oral submissions in support of her application, she stated that she had nothing to say.

2. Ms Quinn, for the first respondent, indicated in her written submissions that at the second Tribunal hearing the applicant repudiated all of the claims she had previously made in relation to Falun Gong.  The Tribunal, not surprisingly, accepted that the applicant’s earlier statement made to the Department and the Tribunal were not true.  The only remaining claims related to an incident in a park where the applicant followed a friend practising Falun Gong, and the claim that he was Catholic. 

3. Ms Quinn submits that the Tribunal considered these claims and found that neither was true.  With respect to Falun Gong, the Tribunal found, based on the evidence that the applicant gave at the second Tribunal hearing, that the applicant's story was not true.  With respect to the applicant's claim to be Catholic, the Tribunal doubted, based on the evidence given at the second Tribunal hearing, that this was true.  It found that in any event the applicant did not claim to fear persecution for this reason.  Indeed, the applicant told the Tribunal that she did not fear returning to China for any reason.  It is submitted that given this evidence from the applicant, the Tribunal decision was inevitable.  The Tribunal simply accepted the applicant's claim that she did not fear persecution on her return to China, which was an entirely reasonable course for the Tribunal to take in the circumstances.

4. Ms Quinn then directed the Court's attention to the Tribunal decision under the heading "Claims and Evidence":

   The Tribunal asked the applicant why she feared returning to China.  The applicant claimed that she did not like China.  She claimed that everything in China is not as good as it is in Australia.(CB 136.3)

   The Tribunal then considered in detail the claims made by the applicant in respect of attending a park with a friend to observe the practise of Falun Gong, the subsequent raid by police which resulted in her being hit on the head.  She was unable to provide the Tribunal with details or dates when this event occurred.

5. Although the applicant raised the issue of her Catholicism at the Tribunal hearing, she had no knowledge of the significance of events such as Easter or Christmas.  Nor was she able to explain the nature or contents of any of the songs or prayers during church services.  The applicant indicated that she had no difficulty practising Catholicism in China and that she had not suffered any interference from the authorities in respect of this.

6. At this point, the Tribunal again asked the applicant why she feared returning to China to which she responded as follows:

   The applicant claimed that she did not like China and was depressed when she was in China.  The applicant claims that there was no other reason why she did not want to go back to China.  The Tribunal asked the applicant if she still wanted the Tribunal to take evidence from her sister.  The applicant claimed that she would tell the Tribunal that she was a Catholic and came from a Catholic family.(CB 137.7)

7. The Tribunal effectively summarised the applicant's evidence and then found:

   Taking into account all of the evidence, the Tribunal rejects all of the applicant's claims in a statement to the department and her claims at the hearing.  The Tribunal does not accept the applicant's claims at the hearing that she went to a park several times in China and followed a friend who was practising Falun Gong.  The Tribunal does not accept that the police came with electric sticks and hit her on the head.  The Tribunal finds that the applicant has fabricated these claims in order to bring herself within the definition of a refugee.  The Tribunal accepts the evidence of the applicant at the hearing that her claims in her protection visa application were false and were made at the suggestion of her agent.  The Tribunal accepts the evidence of the applicant at the hearing that she is not a Falun Gong practitioner and that she has not practised Falun Gong in Australia.  As the applicant has not practised Falun Gong in Australia the Tribunal does not accept that there is a real chance that she will practise Falun Gong if she returns to China now or in the reasonably foreseeable future.  The Tribunal does not accept that the applicant has a genuine fear of being persecuted or a real chance of persecution for reasons of her religion or for any other Convention reasons.(CB 143)

Conclusion

1. I am satisfied that the applicant has been provided with every opportunity to prepare her case but has declined to participate in the Court-sponsored advice scheme or file an amended application.  Further, the applicant declined to make any oral submissions in support of her application.  In the absence of particularised claims in the original application and any attempt to support the application, the Court can only review the Court Book, in particular the Tribunal decision, to identify whether any jurisdictional error has been made by the decision-maker.  On the face of those documents, no error is apparent.  In the circumstances, the application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.

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

Associate: 

Date:  26 September 2007