SZKPE v Minister for Immigration
[2007] FMCA 1667
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1667 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – fact finding is a matter for the Tribunal – the accuracy of the information relied upon is a matter for the Tribunal – Tribunal under no duty to ask particular questions. |
| Migration Act 1958, s.474 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZKPE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1440 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 September 2007 |
| Date of Last Submission: | 17 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2007 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1440 of 2007
| SZKPE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a Falun Gong practitioner. She alleges that while in China she promoted the practice of Falun Gong and that this subsequently led to her being summonsed to the local police and courthouse on several occasions. The applicant left China for Australia in 2006.
The applicant claims to fear persecution in China because of her membership of Falun Gong.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 22 September 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 4-6 of the Tribunal’s decision (Court Book (“CB”) pages 69-71). Relevantly, they are in summary:
Statement accompanying protection visa application
a)the applicant was introduced to Falun Gong by a colleague in 1999 and found it “very good for our health and mood”. Thereafter, she became a Falun Gong practitioner;
b)in 2001 the government began to harass Falun Dafa practitioners and many leaders of Falun Dafa in local areas were arrested and the situation got worse. In March 2001 the applicant was summonsed to the local police station and local court many times and her family could not live a normal life. She was dismissed from her job;
Evidence at Tribunal hearing
c)in early 2000, the applicant lost her job. Her employer had made her and a number of other employees redundant because business had not been good. It was not due to the practice of Falun Gong;
d)the applicant was not a Falun Gong practitioner but did promote it by telling people that it was good for them;
e)the applicant and three other people were summonsed to the police station and court house because they “were with” an elderly colleague from her former workplace who had attempted unsuccessfully once to travel to Beijing for a Falun Gong assembly. He had been turned back. They often promoted the advantages of Falun Gong and the old colleague had been monitored following his attempted to travel to Beijing and so they were all summonsed and questioned; and
f)the applicant had borrowed money to send her son to university and she had come to Australia to earn money to repay the money borrowed.
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)on the basis of the applicant’s oral evidence, the Tribunal found that she was not a practitioner of Falun Dafa;
b)the Tribunal accepted the claim that the applicant may have recommended the practice of Falun Gong to some of her friends as good for health. However, on the basis of the applicant’s oral evidence that she had no relevant literature and that she merely told friends that the practice was for good health, the Tribunal found that the applicant did not publicly promote the practice of Falun Gong;
c)the applicant provided no evidence or detailed information about the circumstances of her alleged summonses. She lived at the same address from 1996 to 2006 and made no claim of any persecution beyond 2001. This evidence and the applicant’s own lack of certainty about the events surrounding her summonses in 2001 led the Tribunal to find that the Chinese authorities had not imputed her with Falun Gong membership;
d)the Tribunal found that the applicant had not suffered serious harm as she claimed in her original application. This was because she had stated that she lost her job in 2000 for reasons unrelated to any involvement with Falun Gong and, before coming to Australia, had remained living at the same address for five more years without claiming any persecution; and
e)at the Tribunal hearing the applicant said that she sought residency in Australia because her family owed money for her son’s education and she did not state that she feared future harm if she returned to China because of her past alleged involvement with Falun Gong.
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal asked itself the wrong question and applied the wrong test;
b)the Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test; and
c)the Tribunal failed to ask appropriate questions and appropriately categorise the basis of the Applicant’s suffering of Convention-based persecution.
Before dealing with the grounds of the application it is appropriate to note that the applicant’s version of events provided to the Tribunal was considerably at variance with the version appearing in the statement which accompanied her protection visa application. In particular, she disclaimed any membership of Falun Gong or persecution based on any pursuit by her of Falun Gong. Rather, her evidence was that she merely promoted Falun Gong, had been retrenched for economic reasons, not dismissed for Falun Gong activities, and her attendances at the police station and court house had been because of her work association with someone who was a Falun Gong practitioner, not because of her own Falun Gong practice. Most significantly, she stated that she had come to Australia to earn money to pay off debts associated with her son’s university education.
In relation to each of the asserted grounds of review contained in the application it should be noted that none was particularised and thus they can be dealt with in a general fashion only.
The Tribunal asked itself the wrong question and applied the wrong test
The question which the Tribunal had to ask itself was whether the applicant had a well-founded fear of persecution for a Convention reason. It did ask itself this question and discussed the elements of that question and the conduct which would satisfy those various elements.
The Tribunal’s discussion of the law relating to the test of whether the applicant has a well-founded fear of persecution has not been demonstrated to be incorrect and a consideration of that discussion discloses no error.
This asserted ground of review has not been made out.
The Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test
The particular circumstances of the applicant, to the extent that the Tribunal was aware of them, were what had been disclosed by the applicant herself, either in her protection visa application and its accompanying statement or in her evidence at the Tribunal hearing. The Tribunal was under no obligation to undertake any enquiries and it committed no error in not undertaking any.
However, what this ground appears to be suggesting is that the Tribunal became apprised of information which was incorrect. As already noted in these reasons, this ground, together with the other asserted grounds of review, is not particularised and so it is not stated by the applicant what such information might be. If any of the facts set out in the Tribunal’s decision were alleged to be incorrect, such as that the applicant entered Australia on a temporary business visa, then they should have been particularised, evidence led to demonstrate their incorrectness and then arguments presented to demonstrate why they affected the Tribunal’s decision in such a way that it was affected with jurisdictional error. But none of these things has been done and there is no basis on which this Court can conclude that the facts rehearsed by the Tribunal, and on which it based its decision, were incorrect in any material, or indeed any, way.
In any event, fact finding is a matter for the Tribunal. It is for the Tribunal to determine which evidence it uses when arriving at its decision and the weight to be given to such evidence. The question of the accuracy of the information relied on by the Tribunal is one for it and the Court cannot substitute its own view of the facts for the Tribunal’s: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. Mere factual error will not ground judicial review unless the error is of a jurisdictional fact or manifests a vitiating error of law: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. No such error occurred in this case.
As to the test which is alleged to have been misapplied, this has not been identified and, for the reasons already expressed at [11] and [12] above, is not made out as far as it relates to the test of what amounts to a well-founded fear of persecution for a Convention reason.
The Tribunal failed to ask appropriate questions and appropriately categorise the basis of the Applicant’s suffering of Convention-based persecution
No error is disclosed by the Tribunal not asking any particular question of the applicant. The Tribunal is not obliged to prompt or stimulate an elaboration which the applicant choses not to embark on: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Hayne JJ at 451 [58], Gleeson CJ agreeing at 438 [1]. Consequently, this element of this asserted ground of review is not made out.
As to the second part of this ground, the Tribunal correctly identified the applicant’s claim to be one of fear of persecution arising out of the applicant’s alleged practice of Falun Gong in China. No other basis upon which the applicant might fall within Australia’s protection obligations was advanced by her and, indeed, even this one basis which was propounded initially seems subsequently to have been diminished or abandoned by the applicant when she came before the Tribunal. Consequently, this second element of this asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Conclusion
Jurisdictional error on the part of the Tribunal has not been made out and the application will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 23 October 2007
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