SZKLU v Minister for Immigration
[2007] FMCA 1291
•25 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1291 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution because of her membership and practice of Falun Gong – merits review – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426, 441A, 474 |
| Applicant: | SZKLU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1117 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 July 2007 |
| Date of Last Submission: | 25 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Mr R. White |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,500.00 and I will allow (3) three months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1117 of 2007
| SZKLU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal signed its decision on
23rd February 2007, and handed the decision down on 15th March.
The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant seeks judicial review of that decision. She filed an application and an affidavit on 4th April 2007. In that application she asks for orders first in the nature of certiorari setting aside the decision of the Refugee Review Tribunal, and second, in the nature of mandamus requiring the Tribunal to reconsider her application according to law.
The first respondent, the Minister for Immigration & Citizenship, has filed a response opposing those orders, and seeks an order from the Court dismissing the application.
The background to this matter is that the applicant is a citizen of the People's Republic of China. She arrived in Australia on 2nd October 2006. On 5th October 2006 she applied to what was then the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa. A Delegate of the Minister refused her application on 2nd November 2006.
On 5th December in that year the applicant applied to the Refugee Review Tribunal for a review of that decision. She accompanied her application with a one and half-page statement in which she set out that she was an innocent member of Falun Gong, and had practised Falun Gong for a long period of time. She claimed that in 1999 Falun Gong was declared an illegal organisation in China, and some Falun Gong practitioners in Hunan were beaten up, arrested, and unlawfully interrogated. Some were threatened with death.
She claimed that she had been summoned from the Court and from the local police station. She claimed that the situation was getting worse, and that people were under strict surveillance. She said that human freedom was completely deprived, and under that situation she had no option but to leave the country.
The Tribunal wrote to the applicant on 15th December 2006 inviting her to attend a hearing on 12th February 2007. The applicant sent a response to that hearing invitation on 8th January 2007 indicating that she wished to attend and required the assistance of an interpreter in the Mandarin language. The applicant attended the hearing, and gave evidence with the assistance of a Mandarin interpreter.
She provided a copy of her passport to the Tribunal. A copy of the Tribunal decision record can be found in the Court Book at pages 58 through to 68. The Tribunal decision summarised the applicant's claims and evidence, and noted in some detail the applicant's evidence to the Tribunal.
In respect of her claim the Tribunal noted this:
"The Tribunal asked her why she was afraid to return to China. She said because she had no freedom there. When asked to be more specific she said when she worked as an interpreter she was introduced to Falun Gong. She was tried to try Falun Going as it was good, so she began to practise, and continued until the Government said that it was not good. After the ban many Falun Gong practitioners were captured and she was questioned.
She had to report to the authorities once a month. Her phone calls were monitored, and she realised that she had no freedom in China."[1]
[1] See Court Book at page 62
The Tribunal asked the applicant a number of questions about her history and her claims. In the decision the Tribunal referred to independent evidence about Falun Gong and the types of treatment received by Falun Gong practitioners in China since 1999.
The Tribunal's findings and reasons are set out on pages 65 through to 68 of the Court Book. The Tribunal, having sighted a copy of the applicant's passport, was satisfied that the applicant is a national of China. The Tribunal was prepared to accept that the applicant was introduced to Falun Gong in 1990 and began to practise Falun Gong publicly in 1993 as an alternative to Tai Chi and solely for the purpose of improving her health.
The Tribunal noted that after July 1999 Falun Gong practitioners were treated harshly by the authorities and thousands were rounded up and detained. The Tribunal was prepared to accept as plausible that in December 1999 the applicant was questioned by the police for 24 hours and that she might have been threatened. She was subsequently released without charge and stopped practising Falun Gong.
The Tribunal was not prepared to accept that the applicant was subsequently required to report to the police on a monthly basis over a period of seven years. The Tribunal noted that the applicant's commitment to Falun Gong before 1999 was not strong. The Tribunal went on to say:
"Her lack of connection and commitment to Falun Going was particularly apparent in her near complete lack of knowledge of Falun Gong exercises, core ideas, and philosophy, and the fact that she has not been practising in Australia."[2]
[2] See Court Book page 66
The Tribunal was not satisfied that the applicant's claims of constant surveillance and harassment since 1999 were credible, and did not accept the applicant had to report to the authorities on a monthly basis for a period of seven years after abandoning her sporadic practice of Falun Gong in 1999.
The Tribunal was satisfied that the applicant was of no interest to the Chinese authorities prior to her departure from China, and was satisfied that there was no real chance that she would face harm for the reason of her past association of Falun Gong if she were to return to China at the time of the hearing or in the reasonably foreseeable future.
Whilst the Tribunal appreciated the applicant's general concerns regarding lack of freedom in China, the Tribunal found that there was nothing in her evidence to suggest persuasively that she would be persecuted for a Convention reason if she were to return to China, and was not satisfied that the applicant has a well-founded fear of persecution in China. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection (Class XA) visa.
In her application for judicial review, the applicant sets out three grounds:
i)the Tribunal failed to carry out its statutory duty;
ii)the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
iii)the Tribunal failed to fully consider the real situation in China.
The applicant did not file any written outline of submissions, but she attended Court and told the Court that she was a Falun Gong member and asked for a fair judgment. She told the Court that what she had told the Tribunal was the truth.
When dealing with an application for judicial review, when an applicant asks that a decision of the Refugee Review Tribunal should be quashed or set aside, it must be understood that the Court can only do so if the Court is satisfied that the decision is affected by jurisdictional error. It is not open to the Court to conduct its own assessment of the factual situation and make its own decision based on those facts. The Court's role is to correct the Tribunal if, and only if the Tribunal has made a jurisdictional error.
The three grounds of review in the application are unaccompanied by any particulars. The applicant's oral submissions were, as Mr White for the Minister submitted, an invitation to the Court to conduct a merits review. Merits review, as I have indicated, is not open to the Court when hearing an application for judicial review.
The first ground in the application claims that the Tribunal failed to carry out its statutory duty. There is no evidence in support of that claim, nor have any particulars been provided. In my view, the Tribunal complied with the requirements of s.425 of the Migration Act 1958 (Cth) (“the Act”) in that it wrote to the applicant and invited her to give oral evidence and present arguments at a hearing. The letter, as is submitted, was validly given, and complied with s.425A, 426, and 441A of the Act. There is no breach of s.425 or 425A.
The applicant attended the hearing. The Tribunal raised with the applicant the Tribunal Member's concerns about the applicant's evidence, and placed her on notice as to what the issues were.
In particular, the Tribunal asked the applicant why, if she had not practised Falun Gong regularly and had given up in 1999, the police insisted that she still report to them once a month for the past seven years. The Tribunal put to the applicant that she had never been arrested or charged and that she was travelling to Australia - or that she travelled to Australia legally on a passport issued in her own name.
The Tribunal put to her its concerns which can be summarised in this way:
"The Tribunal noted that she did not practise regularly before 1999, she had given up the practice in 1999, she knew next to nothing about Falun Gong, she has not been practising in Australia, and apart from being questioned by the authorities she never experienced serious harm in China. It was put to her that all this could suggest that it is unlikely that she would face persecution in China."[3]
[3] Court Book page 63
In my view, the Tribunal placed the applicant on notice as to what the issues were, and the applicant was given an opportunity to reply.
The applicant's second ground relating to an improper exercise of the power conferred by the enactment, in this case the Migration Act, is again unaccompanied by evidence or particulars. In my view, the Tribunal decision does not disclose any breach of the Migration Act. There are certainly no issues relating to s.424A of the Act.
As to the third ground, which is that the Tribunal failed to consider the real situation in China, in my view it can be answered in this way: first, the Tribunal did consider independent country information about the situation in China. It considered the situation regarding the practice of Falun Gong itself, and it considered the treatment of Falun Gong practitioners in China since 1999.
In my view, that issue was covered and was satisfactorily considered by the Tribunal in its decision. In any event, the ground raised by the applicant again appears to be an attempt to seek merits review by taking issue with the factual findings of the Tribunal.
In my view, all of the grounds of review fail. I am mindful of the fact that the applicant is not legally represented. I have read through the Tribunal decision and the supporting material in the Court Book in an effort to discern whether any arguable case for jurisdictional error may be made out. I am satisfied that there is no arguable case for jurisdictional error.
As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Act. A privative clause decision is final and conclusive, and is not subject to orders in the nature of certiorari or mandamus.
It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in her claim, and this is a matter where the successful party who is legally represented should be entitled to an order for costs.
Whilst the amount sought in the sum of $2,500.00 is not excessive, and indeed, is below the amount provided in the scale, the applicant is concerned about the expense and has told the Court that she is not in regular employment.
In my view, that is a factor to be taken into account, as far as time to pay is concerned, and I propose to allow three months to pay.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 3 August 2007
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