SZKNY v Minister for Immigration
[2007] FMCA 1079
•9 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1079 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant S 301/2003 v Minister for Immigration [2006] FCAFC 155 SZBYR v Minister for Immigration [2007] HCA 26 VAF v Minister for Immigration (2004) 206 ALR 471 WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276 |
| First Applicant: | SZKNY |
| Second Applicant: | SZKNZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1250 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 9 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2007 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1250 of 2007
| SZKNY |
First Applicant
SZKNZ
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 6 March 2007 and was handed down on 27 March 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. Background facts are conveniently summarised in written submissions prepared on behalf of the respondent Minister and filed on 29 June 2007. I adopt as background for the purposes of this judgment paragraphs 2 and 3 of those written submissions:
The applicants:
(a)are citizens of the PRC and residents of Hong Kong;
(b)arrived in Australia 17 September 2006; and
(c)lodged an application for a protection (class XA) visa on 24 October 2006.
On 28 October 2006 a delegate of the Minister refused to grant the applicants a protection visa.
On 29 November 2006 the applicants filed an application for review with the Tribunal. On 18 January 2007 the applicants attended a hearing before the Tribunal.
Applicants’ claims
The applicants claimed that they feared persecution because they were Falun Gong practitioners and active members of the Hong Kong Falun Gong Association;
They claimed that:
(a)they went to China to Jilin province to organise for practitioners there to travel to Hong Kong in late 2005 to demonstrate at a Falun Gong conference;
(b)they were arrested and detained for 4 days in Jilin when they attempted to return to Hong Kong. They feared persecution in China for this reason; and
(c)they feared persecution also in Hong Kong, as since their return from Jilin province, they have been under constant surveillance from PSB.
The Tribunal did not accept either of the applicants’ claims. It gave the following reasons for rejecting the husband’s claims:
(a)It did not accept that the husband was a serious practitioner of Falun Gong. Specifically:
i)In his oral testimony, he displayed little knowledge of the practice and teachings of Falun Gong, despite his claim that he had been a regular practitioner in Hong Kong since 1998, including attending public group practice meetings 2 times per month.
ii)He claimed in his oral testimony that since his arrival in Australia, he and his wife practiced only a little, and did not take part in any group practice. When asked by the Tribunal why he had not made a greater effort to practice in Australia, he said it was because of the uncertainty of their situation, they will have to “put Falun Gong in [their] hearts because of the uncertain future here”[1].
(b)It did not accept that the wife was a serious practitioner of Falun Gong. Specifically, in her oral testimony, she displayed little knowledge of the practice of Falun Gong and, despite her claim to be more interested in the “spiritual” dimension of Falun Gong, she displayed little knowledge of the theory and teachings of Falun Gong.
The Tribunal thus rejected the applicants’ claims of activities and incidents set out above at 3.2. It was not satisfied that they had a well-founded fear of persecution for a Convention reason and accordingly affirmed the decision under review.
[1] court book, page 97.3
These proceedings began with a show cause application filed on 24 April 2007. That was accompanied by a short affidavit upon which the applicants continue to rely. I accepted the affidavit as a submission. The applicants now rely upon an amended application filed on 4 July 2007. In the amended application the applicants assert actual notification of the Tribunal decision on 5 April 2007. On that basis I find that the show cause application filed on 24 April 2007 was filed within time.
The grounds in the amended application are the same as those identified in the affidavit. Those are that the Tribunal was biased against the applicants and relied upon wrong independent information and, secondly, that the Tribunal failed to meet its obligations under s.424A of the Migration Act 1958 (Cth).
I gave procedural directions in this matter on 29 May 2007. The applicants consented to orders giving them the opportunity to file evidence in support of their application. They have not taken up that opportunity. The only evidence I have before me is the book of relevant documents filed on behalf of the Minister on 1 June 2007.
There is nothing in the available material to support in any way the allegation of bias. Both applicants appeared at today's hearing and made submissions. Those submissions were directed squarely at the merits of the Tribunal decision. Nevertheless, I attempted to explain to them that the merits are beyond the scope of this proceeding. The allegation of bias is based upon their concern that their claims were not accepted. The allegation of reliance upon wrong country information is based upon the applicants’ views about the extent of freedom of association and belief in Hong Kong. No arguable case of jurisdictional error arises in relation to those matters.
As to s.424A, the Tribunal did not invite comment on any adverse information but, in my view, it did not need to. It appears from the record of the Tribunal decision that the decision turned upon information given by the applicants themselves to the Tribunal for the purposes of the review, and country information. Neither class of information was required to be disclosed pursuant to s.424A. In addition, I agree with and adopt for the purposes of this judgment, paragraph 4.4 of the Minister's written submissions:
The Tribunal’s reasons for rejecting the applicants’ claims were (a) that the claims were internally inconsistent and implausible (for example the Tribunal found both applicants lack of knowledge of the practice and theory of Falun Gong to be inconsistent with their claim to have been long term regular practitioners); and (b) that the claim to fear harm in Hong Kong as Falun Gong practitioners was inconsistent with country information. As to (a), any inconsistencies in that information were not subject to s.424A(1) by reason of s.424A(3)(b). To the extent that perceived inconsistencies formed part of the reason for decision those inconsistencies constituted the subjective appraisals of the Tribunal and were not information and therefore not subject to s.424A(1): SZBYR v Minister for Immigration [2007] HCA 26 at [18]; VAF v Minister for Immigration (2004) 206 ALR 471 at [24]; WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276 at [26]-[29]; Applicant S 301/2003 v Minister for Immigration [2006] FCAFC 155 at [19]. As to (b), s.424A(3)(a) provides that general country information is not subject to s.424A(1).
In that regard it is important to bear in mind that the recent decision of the High Court in SZBYR v Minister for Immigration modifies in some respects the interpretation that had been placed on s.424A as a result of various decisions of the Federal Court, and this Court.
I find that the applicants have failed to identify an arguable case of jurisdictional error in the decision of the Tribunal. Neither is any arguable case of such error apparent to me from my own reading of the material. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. Ms Warner-Knight told me that the Minister's actual costs exceed that amount. The applicants did not wish to be heard on costs. I order that the first and second applicants pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) to schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 July 2007
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