SZKHN v Minister for Immigration
[2007] FMCA 1734
•25 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1734 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKHN”. |
| Migration Act 1958 (Cth), ss.91X |
| Abebe v Commonwealth (1999) 197 CLR 510 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v Guo & Ors (1997) 191 CLR 559 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZBCS v Minister for Immigration [2005] FMCA 25 |
| Applicant: | SZKHN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG744 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms M Palmer of Sparke Helmore |
ORDERS
The application filed on 5 March 2007 is dismissed.
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 |
SYG744 of 2007
| SZKHN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a married man from Shandong Province in the People’s Republic of China. He was employed at the Jinan Railway Station from 1983 until he fled China because of claimed persecution. He claims he is a Buddhist and a Falun Gong practitioner. He states that he was introduced to Falun Gong in 1996 and obtained benefits such as reduced back and wrist soreness after a few months’ practice: CB 67.
In July 1999 the Chinese government suppressed Falun Gong and the applicant states that he was warned by his company not to practice. He claims that he was arrested in June 2000 for three months for “brain washing”. After release, he continued to practice privately at home. He believes he was disadvantaged both economically and politically and he decided to flee China and seek protection in Australia: CB 67.
A delegate of the first respondent refused to grant the applicant a protection visa. The applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”), who upheld the delegate’s decision. The applicant seeks judicial review of the Tribunal decision.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.
The Tribunal made adverse credibility findings (CB 72.7-73.8) and did not accept that the applicant was a genuine Falun Gong practitioner, or that he was detained for three months as a result of his Falun Gong activities (CB 73.8, 74.1). If the applicant had suffered economic harm, the Tribunal was not satisfied that it was for a Convention reason (CB 74.3). It was also not satisfied that the economic harm he claims he suffered amounted to serious harm (CB 74.4). The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to China (CB 75.1).
The original application contains three unparticularised grounds of review.
a)Ground one – “The Tribunal failed to consider the real chance of risk of being jailed if the applicant returned to his original country.”
b)Ground two – “It is not reasonable for the Tribunal to deny that I was ever detained for three months to attend re-education classes for the reasons of practicing Falun Gong.”
c)Ground three – “The Tribunal made the finding which is illogical.”
On the first Court date, the applicant indicated that he wished to participate in the Court’s free independent legal advice scheme. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. The applicant complied with this order and filed an amended application. However, that document does not contain any new grounds of review with the remainder being identical to the statement accompanying his original visa application and also included in his review application to the Tribunal (CB 27-28, 45-46).
Consideration
Ground one
The first ground is most recently repeated in the first sentence of the applicant’s statement in the amended application. No further particularisation, or oral or written submission, was made in support of this claim. This ground cannot be established. The Tribunal clearly did not accept that the applicant would face persecution based on his limited involvement in the Falun Gong movement “if he returned to China now or in the reasonably foreseeable future” (CB 75.1).
Ms Palmer submits, and I agree with those submissions, that in the course of determining whether the applicant faced a real chance of persecution if he returned to China, the Tribunal made findings about past events. The Tribunal rejected the applicant’s claims to be a genuine Falun Gong practitioner and to have been detained and re-educated for three months (CB 73.9-10). The Tribunal used those findings as a basis for its conclusion that there is no chance of future persecution. The most reliable guide for assessing the likelihood of future events is to look at to whether those events had occurred in the past: Minister for Immigration and Multicultural and Indigenous Affairs v Guo & Ors (1997) 191 CLR 559 at 574. I agree that this approach reveals no error.
Ms Palmer submits that the applicant was unsuccessful because the Tribunal could not reach the requisite level of satisfaction on the material before and find that the applicant met the criteria necessary for a grant of a protection visa. The Tribunal found that the applicant had limited understanding of the principles and theory of Falun Gong (CB 72.7-73.8) and that he was unable to describe his experience of detention and re-education in any detail (CB 73.9). The Tribunal was not obliged to accept the applicant’s claims at face value and no jurisdictional error is revealed in its approach or findings: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16] per Ryan, Jacobson and Lander JJ; SZBCS v Minister for Immigration [2005] FMCA 25 at [6]; Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Findings as to credit
The Tribunal’s adverse credibility finding and its consequent rejection of the applicant’s claims, is a matter for it par excellence: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. The Tribunal’s findings were open to it on rational grounds and on the material before it. The findings disclose no error in the treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The Tribunal’s reasons for its decision, which is the only evidence before this Court in relation to the conduct of the hearing, indicate the concerns it had about aspects of the applicant’s evidence which were raised with him at the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, the finding that he was not credible.
Conclusion
The applicant appeared at the hearing as a self-represented litigant and was assisted by a Mandarin interpreter. This places an obligation on the Court to independently consider whether any argument based on the material could have been made out. Ms Palmer, for the first respondent, assisted the Court with written submissions in respect of the amended application. I am satisfied that the application does not identify any jurisdictional error in the Tribunal’s decision-making process. Neither is it apparent that any other ground of review exists giving rise to jurisdictional error. The applicant’s claim should be dismissed with costs.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 25 October 2007
0
6
0