SZKRL v Minister for Immigration
[2007] FMCA 1814
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1814 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in proceedings for judicial review – Tribunal’s decision not illogical or irrational. |
| Migration Act 1958, ss.91R, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZKRL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1637 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 October 2007 |
| Date of Last Submission: | 26 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2007 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Ms. B. Nolan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1637 of 2007
| SZKRL |
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. The applicant left China for Australia where she arrived on 10 October 2006. Since arriving in Australia the applicant has participated in Falun Gong activities.
The applicant claims to fear persecution in China because of being a Falun Gong practitioner. She also seeks protection because of the closure of her business in January 2006, following inspection of her shop by the authorities, and the confiscation of stock.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minster's delegate on 7 February 2007. 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 judicial review proceedings such as this, the Court cannot re-hear 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 of the Migration Act 1958 (“Act”); Plaintiff S157 of 2002 vCommonwealth (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 to 9 of the Tribunal's decision (Court Book (“CB”) pages 69 to 74. Relevantly, I summarise them as follows:
a)when making her application, the applicant made statements including the following:
i)she became a Falun Gong practitioner in March 2006. Subsequently at the hearing the applicant said that this had been a mis-translation and that in the Chinese version of her statement the date had been written as January 2006;
ii)in March 2006 the applicant travelled to the Philippines. She came to Australia in October 2006. She practises Falun Gong at home when she is not busy;
iii)she is applying for a protection visa because she is a Falun Gong practitioner. She will practise and spread the teaching;
b)at the Tribunal hearing the applicant said:
i)she had worked in the wholesaling of motor parts and from 2003 she operated her own business. She closed the business in January 2006 because the authorities inspected the shop and confiscated products;
ii)the applicant said that since January 2006 she had nothing to do because she was still in trouble over this matter. She was worried and stressed;
iii)because of the incident in January 2006 she started to have problems with eating and stomach ache so her cousin's husband told her she should try to practise Falun Gong and perhaps it would release her stress and make her feel better;
iv)the applicant said that from January 2006 she did not have a certain time to practise, she practised whenever she had the time;
v)the Tribunal asked the applicant if she had ever come to the attention of the authorities because of her practice of Falun Gong and the applicant said that she had not because she practised secretly in China and only her husband and close family knew about it. She said that she was afraid because she had two children; and
vi)the applicant said that she sought protection not only because of her adherence to Falun Gong but also because of her business. She said that without her business she had no income and cannot live “there”. In that situation, her cousin's husband saw her stress and at that point she started practising Falun Gong;
c)in relation to the authorities’ actions in January 2006 the applicant said she did not know why they came into her shop. The Tribunal asked her if she had any reason to believe that the officials had confiscated her goods for any of the reasons set out in the Convention and she said that it seemed that they did not.
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 was a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967). The Tribunal's decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was not committed to Falun Gong in China and did not have a significant interest in Falun Gong;
b)it found that the applicant's involvement with Falun Gong in China was minimal and, at its highest, was limited to performing the exercises at home. It found that the applicant practised at home and had not engaged in any other Falun Gong activities in China because of her lack of interest in Falun Gong and not because she was fearful of the authorities;
c)the Tribunal further found, on the basis of the applicant's oral evidence to it, that she did not have a genuine fear of persecution at the time she left China before coming to Australia;
d)in making these findings the Tribunal noted the following matters:
i)the applicant started practising Falun Gong because of her health problems and that she did not believe in it initially;
ii)the applicant started practising “as a trial” and that her cousin's husband told her to practise to see if her health improved first;
iii)her intention in travelling overseas was to relax and it was only after coming to Australia and becoming more familiar with Falun Gong that she became a committed practitioner;
iv)the applicant had no difficulties with the authorities in China;
v)when applying for the visa to Australia the applicant was not thinking about Falun Gong;
vi)when asked to give examples of how she applied the principles of Falun Gong in daily life, the applicant gave vague answers and was unable to give specific examples;
e)as to the applicant's involvement with Falun Gong in Australia:
i)the Tribunal was not satisfied that the applicant's actions demonstrated a commitment to Falun Gong;
ii)the Tribunal was not satisfied that the applicant failed to engage in Falun Gong activities in Australia, other than performing the exercises, for several months because she did not know the practitioners or because she did not know about any such activities;
iii)the Tribunal was not satisfied that the applicant is a committed Falun Gong practitioner or that she was involved in the practice of Falun Gong in Australia because of her commitment to Falun Gong;
iv)the Tribunal was not satisfied that the applicant's involvement in Falun Gong in Australia was conducted otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Convention; and
v)as a consequence, the Tribunal disregarded the applicant's conduct in Australia in accordance with s.91R(3) of the Act;
f)the Tribunal found that should the applicant return to China “now or in the reasonably foreseeable future” the level of her engagement in Falun Gong would not change from her past engagement in Falun Gong in China because the Tribunal found that the applicant is not a committed Falun Gong practitioner;
g)as the Tribunal found that at most the applicant might perform the exercises in private only, it found that there was no real chance that the applicant would be detected by the Chinese authorities or face persecution due to her involvement with Falun Gong; and
h)as to the problems the applicant had with her business in China, the Tribunal found that those claims did not give rise to a claim of persecution for a Convention reason, noting that the applicant had stated that this occurred due to a tax dispute and she further said in her oral evidence that she did not consider that there was any Convention related reason in the actions of the authorities.
Proceedings in this Court
The grounds for the application filed in these proceedings are pleaded as follows:
(i) I have been a Falun Gong practioner [sic] since January 2006. I need to have a time to study books and attend the activities.
(ii) I am fear of persecution if I go back to China because I am a Falun Gong practitioner.
(iii) I will keep on practising Falun Gong.
At the hearing today the applicant also raised an allegation that the Tribunal's finding was not reasonable because she was a genuine Falun Gong practitioner.
Merits review
Dealing first with the grounds pleaded by the applicant in her application, what the applicant invites the Court to do is to undertake a review of the merits of her application. However, the Court in undertaking judicial review of the Tribunal's decision is concerned with the correctness of the Tribunal's process, not with the correctness of the outcome of the application which was before it. Essentially what the applicant seeks from this Court is for it to make findings on her claim different from the findings which were made by the Tribunal. The Court cannot do this. These are matters reposed in the Tribunal for determination.
Even were it to have a different view of what the findings of fact before the Tribunal ought to have been, it cannot substitute its own view on those facts nor can it reconsider the merits of the applicant's claim. No jurisdictional error has been demonstrated by the grounds pleaded by the applicant in her application.
Tribunal’s finding not reasonable
As to the issue of unreasonableness raised today, really all the applicant expresses in this ground is an emphatic disagreement with the Tribunal's findings and decision. That is to say, she is in essence repeating her request for review of the merits of her claim and, for the reasons already given, such a review is not available in these proceedings.
Were the applicant to be alleging by her claim of unreasonableness that there was some illogicality or irrationality in the Tribunal's decision, such an allegation is not made out. The basis of the Tribunal's decision is clear, was a reasoned one and was one open to it on the evidence before it. No jurisdictional error has been demonstrated by the additional ground raised by the applicant today.
Conclusion
As jurisdictional error by the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 November 2007
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