SZKGZ v Minister for Immigration
[2007] FMCA 1685
•12 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1685 |
| MIGRATION – Application for protection visa – whether failure to consider whole of application – whether well founded fear of persecution – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36(2), 65, 474(1) and 476(1) & (2) Migration Regulations 1994 (Cth), Schedule 2, Parts 785 and 866 |
| Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | SZKGZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 727 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 October 2007 |
| Date of last submission: | 8 October 2007 |
| Delivered at: | Perth |
| Delivered on: | 12 October 2007 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the Applicant pay the First Respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 727 of 2007
| SZKGZ |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a 43 year old citizen of the People’s Republic of China.[1] The applicant asserts that since 1997 she has been a Falun Gong practitioner. She says she was dismissed from her employment in China because she was a Falun Gong practitioner. The applicant then travelled to Hong Kong, but subsequently returned to the Chinese mainland where she was arrested. The applicant says she was warned by local police not to practice Falun Gong again, and fears being jailed if she meets the police on the street.[2]
[1] “China”; Case Book (“CB”) at 1.
[2] CB at 30.
The applicant was resident in Hong Kong when on 3 April 2006 the Hong Kong Special Administrative Region of China issued her with a passport.[3]
[3] CB at 27.
The applicant was granted a 3 month visitors visa for entry to Australia on 27 July 2006, and entered Australia at Sydney airport on 24 August 2006.[4]
[4] CB 27.
On 28 September 2006 the applicant applied for a class XA protection visa.[5] On 25 October 2006 the applicant was advised by a delegate of the first respondent that her application for a protection visa had been refused because she was not a person to whom Australia has protection obligations under the United Nations Refugees Convention[6] as amended by the Refugee’s Protocol.[7]
[5] CB at 1-30.
[6] “Convention”.
[7] CB at 31-32.
An application for review was lodged with the Refugee Review Tribunal[8] on 22 November 2006.[9] The RRT heard the applicant’s review application on 2 January 2007 in Sydney.[10] The applicant was invited to the handing down of the RRT decision in Sydney on 25 January 2007.[11] The RRT decided that the applicant was not entitled to a protection visa as she did not have a well founded fear of persecution within the meaning of the Convention.[12]
[8] “RRT”.
[9] CB at 40-44.
[10] CB at 45.
[11] CB at 61-62.
[12] CB at 63 and 78.
On 2 March 2007 the applicant applied to the Court seeking judicial review of the RRT decision.[13] An amended application was filed on 15 June 2007. It contained a single ground:
“The [RRT] failed to consider the whole of my application.”
[13] Migration Act, 1958 (Cth), s.476 (“Migration Act”).
Issues
The issue for this Court is whether the RRT’s decision involves jurisdictional error by reason of the ground alleged: namely, that the RRT failed to consider the whole of the application.
Application
To understand whether the RRT did or did not consider the whole of the application, to the extent that that is relevant to establishing jurisdictional error, it is necessary to set out the basis for the application. The substance of the application is set out in a single page attached to the review application to the RRT.[14] Summarised it is as follows:
[14] CB 44.
(a)she is a Falun Gong practitioner;
(b)she was “ever harmed” in China;
(c)since 1999 the Chinese Government suppressed Falun Gong practitioners;
(d)she was working in a factory in mainland China, and was dismissed because she was a Falun Gong practitioner;
(e)she travelled to Hong Kong, thinking it more democratic than mainland China as she had never had troubles there before;
(f)she thought that because she was in Hong Kong the “government has cancelled my record in their computer system”;
(g)she returned to mainland China one day and was arrested by local police;
(h)the police warned her not to practice Falun Gong, because the local police thought that Hong Kong and China had the same policy; and
(i)the above means the police may “catch” and “jail” her “if they met me on the street”.[15]
[15] CB 44.
RRT hearing and decision
The RRT found that the applicant did not have a well founded fear of persecution.[16] The RRT at hearing:
“put to the applicant the contents of her claims … provided in support of her application … and the statement … provided to the Tribunal.”
[16] CB 77.
At hearing the RRT canvassed, at some length, numerous issues raised in, or related to, the protection visa application. They included:
a)the applicant’s work history:
i)in mainland China up to and including 1999;
ii)in Hong Kong from 1999;[18]
[18] CB 68.
b)the applicant’s being allowed to travel to and live in Hong Kong after 1999 “because of her marriage”, her husband being a resident of, and living in, Hong Kong;[19]
[19] CB 68.
c)the applicant’s frequent travel “more than ten times” between mainland China and Hong Kong from 1999 until, at least, May 2006;[20]
[20] CB 68-69.
d)that the applicant’s travel to mainland China was untroubled until May 2006, and included visits to:
i)a cousin of her brother-in-law who was in jail because he was a Falun Gong practitioner; and
ii)several friends who were Falun Gong practitioners;[21]
[21] CB 69.
e)the applicant’s belief that because she had not experienced any trouble on her visits to China, that the Public Security Bureau[22] had destroyed records relating to her arrest in 1999 and involvement with Falun Gong;[23]
[22] “PSB”.
[23] CB 69.
f)the “warning” of the applicant by the PSB in mainland China in May 2006, when she was told she might be arrested in Hong Kong “if she was still with these friends”, who were Falun Gong practitioners,[24] and her promise not to see those friends again resulting in her being given a warning rather than more serious punishment;[25]
[24] CB 69.
[25] CB 70.
g)the applicant’s possession of a Hong Kong ID card, and her claim that China and Hong Kong now apply the same law;[26]
[26] CB 70.
h)extensive questioning and consideration of the applicant’s practice and adherence to the principles of Falun Gong, including:
i)that the applicant only practises every three to four months, and does not attend study sessions;[27]
ii)the nature and frequency of Falun Gong “exercises” performed by the applicant, and in particular the “five exercises”;[28]
iii)where and how she practised in Hong Kong, including whether she practised in study groups (which she did not) or at home (which she said she did), and the frequency of practise, which at one point elicited the response that whilst the applicant “stayed in Hong Kong” she did not practise;[29]
iv)an explanation of the principles of Falun Gong,[30] which caused the RRT to observe that “the applicant appeared to have little knowledge about Falun Gong, she did not know about the principles of truth, compassion and tolerance or the concept of the Wheel”;[31] and
v)the persecution of Falun Gong practitioners in Hong Kong, which resulted in the applicant telling the RRT “that at present, there is no persecution of Falun Gong practitioners in Hong Kong”;[32]
i)the applicant’s alleged arrest in 1999 where she said “she was whipped and her finger hurt” by the PSB, and the omission of that alleged treatment from any prior statement in relation to her protection visa application;[33]
j)why the applicant continued to return to mainland China after her alleged treatment in 1999;[34] and
k)the granting of a new Chinese passport, issued to the applicant in 2006 in Hong Kong, and how that related to her claim to be of interest to the authorities because she was a Falun Gong practitioner.[35]
[27] CB 71.
[28] CB 72.
[29] CB 71.
[30] CB 72-73.
[31] CB 73.
[32] CB 73.
[33] CB 71.
[34] CB 71-72, and see para 10(f) above.
[35] CB 73.
In the RRT decision consideration is also given to independent country information concerning China, including Hong Kong.[36] In relation to Hong Kong,[37] the RRT referred to and quoted a 2006 United States Department of State International Religious Freedom Report which said that Falun Gong:
a)in Hong Kong “is generally free to practice, organise, conduct public demonstrations, and attract public attention for its movement”;[38]
b)“regularly conducted public protests against the repression of fellow practitioners in … [China] near the Hong Kong offices of the [Chinese] government;[39] and
c)members were not being denied entry to Hong Kong.[40]
[36] CB 73-75.
[37] Hong Kong is designated as a Special Administrative Region of China.
[38] CB 75.
[39] CB 75.
[40] CB 75.
Following a consideration of the applicant’s evidence at hearing, and the independent country information, the RRT made a number of findings. They included:
a)that the applicant “displayed minimal knowledge” about Falun Gong;[41]
b)that the RRT did not accept the applicant was a Falun Gong practitioner; nor that she had at any time engaged in the practice or study of Falun Gong, whether in mainland China, Hong Kong or Australia;[42]
c)that the applicant was not a Falun Gong practitioner, and would not now or in the foreseeable future engage in the practice of Falun Gong;[43]
d)that the applicant was not dismissed from employment, or mistreated by the PSB, in 1999 because she was involved in Falun Gong;[44]
e)a rejection of the applicant’s claim to have been detained, or to have come to the attention of authorities, in mainland China in 2006 because she was with known Falun Gong practitioners;[45]
f)that the applicant’s frequent travel to mainland China between 1999 and 2006 was inconsistent with the applicant having a well-founded fear of persecution in mainland China;[46]
g)that the applicant did not have a well-founded fear of persecution in Hong Kong, and that her fears were, in any event, limited to mainland China;[47] and
h)the authorities in neither mainland China nor Hong Kong had an “ongoing interest in the applicant for any reason”.[48]
[41] CB 75.
[42] CB 75.
[43] CB 75 and 76.
[44] CB 76.
[45] CB 76.
[46] CB 76.
[47] CB 76.
[48] CB 77.
The RRT therefore found that the applicant did not have a well founded fear of persecution within the meaning of the Convention.[49]
[49] CB 77.
Jurisdictional error
The RRT’s decision can only be set aside if it involves jurisdictional error.[50]
[50] Migration Act, ss.474(1) and 476(1) and (2); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para 76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
Jurisdictional error occurs where the decision-maker (in this case the RRT):
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way affecting the exercise of power by the decision-maker, resulting in a decision exceeding the authority or powers given under the relevant statute.[51]
[51] Minister for Immigration and Multicultural Affairs & Ors v Yusuf & Ors (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para 82 per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; WAME v Minister for Immigration & Anor [2007] FMCA 1569 at paras. 13-14 per Lucev FM.
The issue identified in the RRT decision was whether under s.65 of the Migration Act the decision-maker was satisfied that the prescribed criteria for the grant of a visa had been satisfied.[52] The RRT then referred to the relevant criterion under s.36(2) of the Migration Act for the grant of a class XA protection visa as being whether the Minister for Immigration and Citizenship (the first respondent) was satisfied that Australia had protection obligations towards the applicant, and the further criteria for the grant of a protection visa as set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth).[53] The RRT correctly identified the relevant elements of the Convention definition of “refugee”,[54] and considered the question of whether there was a well founded fear of persecution. [55] That was the proper approach to adopt.
[52] CB 65.
[53] CB 65.
[54] CB 66.
[55] CB 66-67 and 75-77.
The RRT did not identify a wrong issue or asked a wrong question.
The RRT then considered the various specific issues raised by the applicant. These issues, set out above,[56] were all relevant considerations, and were all raised by the RRT with the applicant at hearing, and then considered in the RRT’s decision, and findings made which were open on the evidence before the RRT. The applicant’s assertion that the RRT failed to consider the whole application is patently incorrect. There is indeed nothing which indicates that the RRT ignored any relevant consideration. Review of the matters relied upon by the RRT also indicates that no irrelevant considerations were relied upon by the RRT, and none were identified by the applicant.
[56] See para 10 above.
The applicant has not established any jurisdictional error on the part of the RRT.
Conclusion
The decision of the RRT properly sets out and identifies the issue and questions to be addressed. In addressing the issue and questions the RRT took account of all relevant considerations, and did not rely upon any irrelevant considerations. There is no jurisdictional error in the RRT’s decision. The application will therefore be dismissed. The applicant must pay the first respondent’s costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M. Hewitt
Date: 12 October 2007
[17] CB 68. The contents of the “statement” are summarised at para 8 above.
0