SZKON v Minister for Immigration
[2007] FMCA 1668
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKON v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1668 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – weight to be given to evidence before the Tribunal is a matter for it – Tribunal did not prevent the applicant from adducing evidence. |
| Migration Act 1958, ss.91R, 91X, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZGYT v Minister for Immigration & Citizenship [2007] FMCA 883 |
| Applicant: | SZKON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1373 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 August 2007 |
| Date of Last Submission: | 30 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1373 of 2007
| SZKON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the People’s Republic of China (“China”) where, he claims, he became a follower of Falun Gong because it improved his health to a marked degree. He alleges that while in China he became so committed to Falun Gong that he began to promote it to his friends but that this subsequently led to him being arrested, imprisoned and tortured on more than one occasion. The applicant left China for Australia where, he alleges, he has continued his commitment to Falun Gong.
The applicant claims to fear persecution in China because of his practice of Falun Gong.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
16 November 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-12 of the Tribunal’s decision (Court Book (“CB”) pages 79-87). Relevantly, they are in summary:
a)the applicant claims to have been unlawfully detained in China because of his practice of Falun Gong. He claims he was tortured and forced by the authorities to give up the practice;
b)the applicant claims that if returned to China he would be persecuted again;
c)the applicant claims that his wife and daughter are also discriminated against because of his practice of Falun Gong;
d)the applicant has told the Tribunal that his mother is a long-time practitioner of Falun Gong and he himself learnt to practise Falun Gong under her influence;
e)before he was arrested, he and his mother used to distribute Falun Gong literature to their neighbourhood. They also used to teach the needy how to practise Falun Gong; and
f)the applicant told the Tribunal that since arriving in Australia he has “joined the Falun Gong”, however has not had time to follow its principles well enough as he spent a lot of his time and effort in securing work.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept the applicant’s claims concerning his practice of Falun Gong in China. noting that:
i)the applicant could not provide any credible evidence to corroborate his claim to have become a Falun Gong member in late 1999 or early 2000;
ii)he did not know about the significance of the Wheel in Falun Gong belief;
iii)it was not plausible that the applicant would have joined the organization at a critical time when it had been banned in China;
iv)his claim to have not really studied Falun Gong “that much” when in China was not consistent which him having been detained and tortured because of his Falun Gong practice;
b)the applicant did not provide any credible information to corroborate his claims that he was tortured or detained;
c)the fact that the applicant was able to obtain a Chinese passport and then remain in that country for almost a year after the alleged persecution strongly suggested to the Tribunal that he was not in danger of persecution or the subject of adverse interest to the Chinese authorities;
d)in order to strengthen his claim for a protection visa in Australia the applicant fabricated his claims that he was associated with Falun Gong and consequently subject to detention and torture in China; and
e)the Tribunal concluded that the applicant joined Falun Gong in Australia for the purpose of strengthening his case for a protection visa and it did not regard his sur place claim as genuine.
Proceedings in this Court
The grounds of the amended application may be paraphrased as follows:
a)when considering the applicability of s.91R(3) of the Act, the Tribunal failed to have proper regard to the evidence of the applicant’s Falun Gong colleagues in Australia concerning his practice of Falun Gong in Australia; and
b)the Tribunal misconstrued s.91R(3) of the Act when it concluded that the applicant had “joined” Falun Gong in Australia for the purpose of strengthening his claims for a protection visa and then rejected his sur place claims as not being genuine.
At the hearing in this Court the applicant raised additional matters, namely:
a)the Tribunal denied him the opportunity to put before it all the evidence he wished to adduce;
b)the Tribunal’s decision was illogical; and
c)the Tribunal did not permit him to prove his case because, although it invited him to submit additional information after the Tribunal hearing concluded, it delivered its decision so quickly he was unable to do so.
Dealing with each of these grounds in turn:
Tribunal failed to have proper regard to the evidence of the applicant’s witnesses
The applicant does not submit that the Tribunal did not have regard to the evidence of witnesses in question. He could not do so as it is clear that the Tribunal did have regard to that evidence. This much is clear from the Tribunal’s recounting of the evidence before it (CB 84-85, 86-87) and its discussion of the evidence (at CB 90-91). What the applicant asserts is merely that the Tribunal did not have proper regard to the evidence of those witnesses. However, the weight which is to be accorded to evidence before the Tribunal is a matter for it. It is for the Tribunal to determine what evidence it relies on in arriving at its decision and the weight which is to be attributed to that evidence.
The applicant submitted that the issues presented in these proceedings were analogous to those seen in SZGYT v Minister for Immigration & Citizenship [2007] FMCA 883. In that case, Driver FM held that the Tribunal erred because it limited its inquiry into the applicant’s conduct in Australia to the fact that he had not commenced the practice of Falun Gong in Australia because of a genuine belief in Falun Gong, although evidence before that Tribunal attested to the genuineness of the applicant’s belief and practice of Falun Gong at the later time when the various declarations in support of that applicant’s case were made. That Tribunal erred by considering only the applicant’s motivation at the time he commenced practising Falun Gong in Australia and not whether the evidence demonstrated that, at a later point, his adherence was genuine.
The facts in this case are different because the Tribunal did not limit itself to considering the applicant’s position at one point in time but considered whether the applicant’s adherence to Falun Gong in Australia had ever been a deep and genuine one. The Tribunal found that it had not been, noting that his association had been tenuous and his profile not indicative of a committed member which, when coupled with the applicant’s lack of knowledge about basic elements of Falun Gong, led it to the conclusion that his sur place claims were not genuine.
The fact that the evidence of the witnesses in question may not have been as persuasive as the applicant would have wished is not a basis upon which the Tribunal’s decision may be set aside.
The Tribunal misconstrued s.91R(3)
This ground has no substance. At pages 16-17 of its decision, the Tribunal quoted the sub-section and discussed the section’s relevance in the context of how a sur place claim might arise. Neither the quotation of the sub-section, nor the discussion of its context and operation, show any error on the part of the Tribunal.
The Tribunal prevented the applicant from giving evidence
In reality, this is an assertion that, in breach of s.425 of the Act, the applicant was denied a real and meaningful invitation to a hearing. The applicant gave evidence that he had wished to place before the Tribunal a number of books which would have demonstrated that his mother was a Falun Gong practitioner and it was from her he gained initial guidance in Falun Gong. The applicant said that the books could have proven that he started his Falun Gong practice when he said he did.
However, the applicant failed to demonstrate that the books could have shed any light on his own practice of Falun Gong as distinct from, potentially, demonstrating his mother’s commitment. The applicant said that the Tribunal said it had no interest in the documents, or did not want to receive them, because they were of no relevance to the applicant’s claim. Nothing the applicant said in his evidence gave any support for a contention that the books he wished to put before the Tribunal would have indicated anything about his own claimed practice of Falun Gong.
Consequently, the Tribunal was not in error in not accepting the documents tendered by the applicant.
The applicant also told the Court that the Tribunal cut him off at the Tribunal hearing although he did not seek to tender a transcript of the hearing before the Tribunal and there is nothing in the Tribunal’s decision record to support this allegation. Moreover, the Tribunal’s decision records that after the hearing the applicant filed a written statement providing further information. The applicant’s assertion that he was prevented from giving evidence is not made out.
Illogicality
The applicant submitted, in passing, that the Tribunal’s decision was illogical. This submission is not made out either. The Tribunal’s review of the evidence and its consideration of that evidence demonstrate a logical thought process which led to a result which was open on the material before it.
No error is disclosed in respect of this asserted ground of review.
Denied an opportunity to prove his case
The applicant said that he wished to put additional evidence before the Tribunal. He said that after the Tribunal hearing he wished to obtain detention certificates and other documents but before he was in a position to obtain them and put them before the Tribunal its decision was delivered.
The applicant also said in his evidence to the Court that he would have liked to have obtained a statement from his mother setting out his commitment to the practice of Falun Gong.
The Tribunal’s decision record at CB 85 records that it asked the applicant if he had any additional information to provide to assist his claims and the applicant said at that time that he had none. Nevertheless, the applicant did provide additional information which is reproduced at CB 69-72. The letter reproduced at CB 69 does not record a request for additional time in order to obtain the information which the applicant now says he would have wished to put before the Tribunal. Further, in the Tribunal’s invitation to the applicant to attend its hearing (CB 55-56) the applicant was requested to send to the Tribunal any new documents or written arguments which he had wished the Tribunal to consider. Based on the contents of that letter, the applicant had approximately six weeks within which to consider the material he wished to put before the Tribunal.
Consequently, the position is that the applicant was alerted to his right to appear before the Tribunal and to put additional material before it and after the hearing he actually did provide further evidence but did not ask for additional time within which to put yet more material before the Tribunal. In these circumstances, it could not be said that the applicant was denied the opportunity of putting his case or adducing evidence.
Consequently, no jurisdictional error is demonstrated in respect of this ground of review.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 23 October 2007
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