SZKLH v Minister for Immigration and Citizenship

[2007] FCA 1666

FEDERAL COURT OF AUSTRALIA

SZKLH v Minister for Immigration and Citizenship [2007] FCA 1666

SZKLH  v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1472 OF 2007

ALLSOP J
1 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1472 OF 2007

BETWEEN:

SZKLH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	1 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1472 OF 2007

BETWEEN:

SZKLH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	1 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders made by the Federal Magistrates Court on 9 July 2007, dismissing, on a summary and thus interlocutory basis, the application for judicial review made by the applicant in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), which had earlier affirmed the decision of a delegate not to grant the applicant a protection visa. The interlocutory nature of the orders of the Federal Magistrates Court arises from the fact that they were made under rule 44.12 of the Federal Magistrates Court Rules. Relevantly, the rule states as follows:

   (1) At a hearing of an application for an order to show cause, the court may

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application;

   …

2. The applicant’s application for review in the Federal Magistrates Court was for an order that the respondents show cause why a remedy should not be granted under s 476 of the Migration Act 1958 (Cth). It was therefore necessary for the applicant to satisfy the Federal Magistrate that he had raised an arguable case for judicial review of the Tribunal decision. The Federal Magistrate, after hearing the matter, took the view that there was no arguable basis revealed for judicial review and ordered that the application be dismissed under rule 44.12(1)(a). As I have already said, that is an interlocutory order, in that it does not resolve finally the issues in dispute between the parties on a technical basis. Whether or not the applicant can bring another application may depend upon questions of time and other matters.

3. However, what I am dealing with is the question whether or not the Federal Magistrate properly exercised the power available to him in rule 44.12. Before embarking on an explanation of the case, for the benefit of the applicant, it is appropriate to identify the structure of the decision making process and the role of the Court in that. The task of assessing factually the legitimacy of claims made by applicants to visas is given, in the first instance, to the Minister, through his or her delegate. Those officers of the Commonwealth assess the material placed before them by applicants for visas, including protection visas, and make decisions based on their satisfaction or not of the material put before them.

4. There is a process of review which is undertaken by Tribunals, in this case by the Refugee Review Tribunal.  This Tribunal is not a court, it is a Tribunal set up within the Executive arm of the government to review decisions of delegates.  The Refugee Review Tribunal, in such a case as the present, reviews the entire factual context put forward by the applicant and comes to a decision based on the member’s satisfaction or not as to the relevant criteria for the visa.  In this case the primary criterion being a satisfaction or not as to whether Australia owes protection obligations based on the Refugee Convention. 

5. Above the Tribunal, in one sense, stands the court system, in this case, at first instance, the Federal Magistrates Court.  The task of the Court is not to rehear the application; it is to assess whether there has been a lawful approach made by the Tribunal to the assessment of the visa application in the review process.  That may involve a great many things, but it does not involve making a decision as to whether the visa should be granted.  The task of the Court is to ensure the legality of the review process undertaken by the Tribunal.  This Court sits on appeal from the Federal Magistrates Court to ensure that the Federal Magistrate, in undertaking his or her function, does not commit error.  Therefore, the task before me is to understand whether the Federal Magistrate properly exercised the power available to dismiss the case because it did not show any arguable grounds of success. 

6. To do so, I need to say some things about the Tribunal’s decision and the decision of the Federal Magistrates Court.  The applicant is a citizen of the People’s Republic of China, who arrived in Australia in September 2006, and who shortly thereafter lodged an application for a protection visa.  This application was refused by a delegate of the Minister on 7 October 2006.  The applicant lodged an application for review with the Tribunal, and on 20 December 2006, he attended a hearing before the Tribunal.  The Tribunal made its decision on 10 February and handed its decision down on 1 March 2007.  In the reasons for decision the Tribunal examined the claims of the applicant that he was a practitioner of Falun Gong and that he feared persecution upon his return to China. 

7. The Tribunal sets out the claims in evidence on pages 4 through to 7 of its reasons.  I do not stop to set those matters out in detail.  It is sufficient to say that the applicant attended the hearing before the Tribunal and was questioned at length about various matters, including the practice of Falun Gong.  In its findings and reasons, the Tribunal came to the view that because of the applicant’s asserted lack of knowledge of Falun Gong, it did not accept that the applicant had ever practised Falun Gong in China.  The substance of the Tribunal’s reasons found at pages 8 and 9 of the decision, are as follows:

   In the present case the Applicant claims to have left China to avoid persecution because he was a member of Falun Gong.  However at the hearing before me, when I asked him about the five sets of exercises involved in the practice of Falun Gong, he said that three of them were performed standing up and two sitting down, then he said that it depended and that sometimes if you wanted to sit down to practise you could.  As I put to him, four of the sets of exercises are performed standing up and only one sitting down (see ‘Chapter IV Falun Gong Practice System’, from China Falun Gong, downloaded from accessed 29 April 2000).  The Applicant then referred to a form of mediation in which you sat down, quietly, let your mind empty and quoted verses.  He said that you could also close your eyes and have a rest.  As I put to the Applicant, what he was talking about does not have anything to do with the practice of Falun Gong (see ‘Chapter IV Falun Gong Practice System’, from China Falun Gong, downloaded from accessed 29 April 2000).

   When I asked the Applicant whether he could demonstrate the second of the five sets of exercises involved in the practice of Falun Gong for me, he said that he was a practitioner but he was not good at it.  He said that he had been brainwashed in the detention centre and after he had got out he had not been able to remember much.  He said that he had not practised for some time and he was not quite sure that he could remember.  Subsequently he said that it had been difficult for him to learn the Falun Gong exercises here because where he lived was far away from the practice site in Campsie (which he had said he had visited on two or three occasions) and he did not have a car.  He said that he always arrived late so he ended up at the back of the crowd where he could not hear much.  He said that he had thought of moving closer to the practice site but this would have taken him away from his casual jobs.

   As I put to the Applicant, the information available to me suggests that any genuine Falun Gong practitioner would be able to perform the five sets of exercises (Dr Benjamin Penny, ‘Falun Gong: What was it? And what is it now?’, A talk for the Refugee Review Tribunal National Members’ Conference, 29 August 2003).  I do not accept on the basis of the Applicant’s evidence at the hearing before me that he is a genuine Falun Gong practitioner.  I do not accept that, as he claimed, he has read a Falun Gong book called Falun Dafa.  I accept that he has visited the Falun Gong practice site in Campsie on two or three occasions but I consider that, as he said, all he did was stand at the back and watch.  I do not accept that the Applicant has a genuine interest in Falun Gong or a desire to practise Falun Gong.

   Having regard to the Applicant’s lack of knowledge of Falun Gong, I do not accept that he ever practised Falun Gong in China, nor that he was detained in a detention centre for a month and brainwashed because he was a practitioner of Falun Gong, nor that he was only released on bail as a result of which the police are looking for him in China, nor that, if he returns to China now or in the reasonably foreseeable future, there is a real chance that he will want to practice Falun Gong.  Having regard to my finding above that all he did at the Falun Gong practice site in Campsie was to stand at the back and watch, I do not accept that there is a real chance that the applicant will be perceived by the Chinese authorities as a Falun Gong practitioner on the basis of anything he has done in Australia if he returns to China now or in the reasonably foreseeable future.  I do not accept that there is a real chance that the Applicant will be detained, sentenced to imprisonment or doomed to die because of his claimed involvement in Falun Gong if he returns to China now or in the reasonably foreseeable future.

   I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to China. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa nor is he the spouse or a dependant of a person who holds a protection visa as required by paragraph 36(2)(b).

8. From that decision, complaint was made in the Federal Magistrates Court by the applicant in an application for review.  Later in the Federal Magistrates Court an amended application was filed.  The first application, which was filed on 3 April 2007, stated as the grounds of the application the following:

   1.The Tribunal failed to consider my application in accordance with section 91R of the Migration Act 1958. The Tribunal had bias against me and failed to consider my claims.

   2.The Tribunal did not notify me (of) the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application in accordance with s424A of the Migration Act 1958.

   3.The Tribunal failed to refer to sufficient independent information for the consideration of my application because of the bias against me.

9. In the amended application filed on 25 June 2007, the applicant repeated the claims of bias and of contravention of s 424A of the Migration Act 1958 (Cth), and repeated the asserted failure to refer to relevant country information. The Federal Magistrate’s reasons indicate that when the matter first came before him on 8 May 2007 the applicant appeared and was assisted by a Mandarin interpreter. The Federal Magistrate gave the applicant leave to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. The Federal Magistrate stated in his reasons that the applicant was on 8 May 2007 warned that his application might be dismissed when the matter came back to Court if the Federal Magistrate was not satisfied that the application raised an arguable case for relief. The amended application was filed; it in substance repeated the original application (it certainly was no more informative) and no other material was filed. The matter came back to Court, and the Federal Magistrate then dealt with the matter on a show cause basis under rule 44.12.

10. In his reasons of 9 July 2007, the Federal Magistrate examined the history of the matter, and also the applicant’s particular history.  In [5], the Magistrate noted that there had been a question in the application form for the visa as to why he left China, and the applicant had replied as follows:

    In answer to the question “Why did you leave China?”, the applicant said:
    I left PRC because I was a member of Falun Gong, and police detained me in May 2005, I paid RMB 60,000 to secure my release, and left China for Chile to avoid persecution from Chinese government.  Now I can not stay in Chile any more, I have to apply for protection visa, I will be persecuted by the Chinese government on my return to China.  I was detained because of my involvement with Falun Gong, I paid money to leave China, If I return there, I would be detained again.

11. The Magistrate then continued in [6] of his reasons to note that no further details of this claim or corroborative evidence was ever provided to the Department of Immigration and that the delegate refused the application. The Magistrate noted the contents of the Tribunal’s reasons, and in particular noted at [12] that based on its findings, the Tribunal did not accept that the applicant had ever practised Falun Gong in China, or that there was a real chance that he will want to. The reasons of the Federal Magistrate recognised that the basis for the views of the Tribunal was the quality of the answers given by the applicant to questioning, and a consideration of material that was not specifically about the applicant or another person, and was about a class of persons of which the applicant or another person is a member. Those words come, of course, from s 424A(3)(a) of the Migration Act which has the effect of removing the operation of s 424A from material which is general, such as country information or other general information, as here, about Falun Gong. The Federal Magistrate then concluded that, having considered the procedures and reasoning of the Tribunal, he was unable to identify any arguable ground of jurisdictional error. There was no foundation or any particularisation for any asserted bias, or any asserted failure to comply with s 424A, or any reason to think that the material that the Tribunal had examined was not adequate for it to form the views it did.

12. It is in that context that I must assess whether the power under rule 44.12 of the Federal Magistrates Court Rules was properly exercised.

13. The application for leave to appeal was supported by an affidavit of the applicant, which in substance repeated the terms of the application and amended application below, as did the draft notice of appeal.  There has been no evidence filed which would lead to the conclusion that the process of questioning that was undertaken by the Tribunal was in some fashion an unreasoned or irrational way to approach the factual question with which it was charged, that is assessing whether or not the applicant had an association with or had practised Falun Gong.  I have not been assisted with any submissions on behalf of the applicant.  He is unrepresented.  I have ensured that he understood the submissions ultimately provided by the Minister on this application. 

14. There is no foundation, and was no foundation before the Federal Magistrates Court, to ground any case of bias. There is no foundation, and was no foundation before the Federal Magistrate, for any basis for an attack on the decision of the Tribunal based on s 424A. And there is no foundation, and was no foundation before the Federal Magistrates Court, for an argument that the country information and general information has been approached irrationally by reference to the approach taken by the Tribunal. I am not able to identify any error in approach by the Federal Magistrates Court.

15. If applications are brought to the Federal Magistrates Court for judicial review, which on their face show no viable ground of success, the Federal Magistrates Court is empowered by its rules to deal with such matters on a summary basis.  That is what the Federal Magistrate did on this occasion.  I do not see any error in the approach the Federal Magistrate took.  One of the grounds for granting leave to appeal, which is necessary to show, is that there is some utility in the appeal.  In my view, looking at both the Tribunal’s reasons, and the reasons of the Federal Magistrate, there is no utility in the appeal in its current form.  For those reasons, it is necessary to dismiss the application and order that the applicant pay the respondent’s costs.

16. I so order. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:        19 November 2007

The Applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 November 2007
Date of Judgment:	1 November 2007