SZLCH v Minister for Immigration

[2008] FMCA 88

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLCH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 88

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – no jurisdictional error in Tribunal decision – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: SZLCH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2277 of 2007

Judgment of: Driver FM

Hearing date: 30 January 2008

Delivered at: Sydney

Delivered on: 30 January 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Mansour
Clayton Utz

ORDERS

1. The application is dismissed.

2. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2277 of 2007

SZLCH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 28 June 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and claimed to fear persecution by reason of her practise of Falun Gong. Background relating to the applicant's claims and the Tribunal decision on them is set out in the Minister's written submissions filed on 22 January 2008. I adopt as background for the purposes of this judgment paragraphs 2 and 3 of those written submissions:

   The applicant, a citizen of the People’s Republic of China ("China"), arrived in Australia on 15 November 2006 and applied for a protection visa on 2 January 2007, claiming to fear persecution in China because of her involvement in Falun Gong since arriving in Australia. The applicant does not claim to have had any association with Falun Gong in China.

   Tribunal’s findings and reasons:

   The Tribunal was not satisfied that the applicant is a genuine Falun Gong practitioner or that she had any significant contact with the Falun Gong faith. The Tribunal:

   (a)accepted that the Applicant had read the newspaper "Epoch Times" and accepted that the Applicant may have friends in Australia who are practitioners;

   (b)was not satisfied that the Applicant has ever been taught about Falun Gong by a practitioner friend as she claims. While the Applicant was able to mention a few basic facts about Falun Gong, this was information that was readily available on the public record;

   (c)was not satisfied that a genuine Falun Gong practitioner could have instructed the Applicant about Falun Gong whilst neglecting to teach her about the Falun Gong exercises or teachings;

   (d)was not satisfied that, if the Applicant had a genuine interest in Falun Gong or attachment to it, she would have failed to contact other Falun Gong practitioners to teach her more about the faith instead of awaiting the return of her practitioner friend from China.

2. The applicant relies upon her application for judicial review filed on 24 July 2007. She also relies upon her accompanying affidavit filed on the same day. The affidavit contains a mix of factual assertions and submissions. There is only one ground in the application which is reproduced in paragraph 4 of the submissions which I adopt for the purposes of this judgment:

   1.The Tribunal's decision was affected by judicial error in that the Tribunal failed to comply with section 424A of the Migration Act.

   Particulars:

   The Tribunal does not accept the Applicant is a genuine Falun Gong practitioner.  The Applicant has limited knowledge about Falun Gong because his friend who taught her Falun Gong has returned to China and that she is only a beginner in Falun Gong.  The Tribunal commented in the decision records that 'if I am not satisfied that, if she had any genuine interest in Falun Gong or attachment to it, she would have failed to contact other Falun Gong practitioners to teach her more about the faith that she would not have taken steps to obtain it and read the teachings of li hongzhi'. The Applicant claims that she did not contact other Falun Gong practitioners because she does not know whom she can trust, given the fact that the Chinese government has spies in Australia monitoring Falun Gong.  She only trusts her friend who is a Falun Gong practitioner.  Moreover she has to look after her daughter who is studying in Sydney.

   The Applicant claims that the Tribunal should have invited her to comment on the above information so that she can explain on it.

3. I explored that ground of review with the applicant during the course of oral argument today. It was apparent that the applicant had no understanding of the ground of review in the application. She admitted that a person described by her as an agent had prepared the application for her. It appears that the agent had also assisted her with her protection visa and review applications. The fact of an involvement by an agent is corroborated by the fact that the applicant nominated an address for service being a private box number in Elizabeth Street, Surry Hills, both in her application to the Court and in a notice of change of address for service filed on 24 January 2008.

4. The applicant claimed not to know the name of the agent although she had paid the agent $1,000. She claims that she dealt with a friend rather than with the agent directly. Such arrangements are, unfortunately, fairly common in this jurisdiction. Frequently, as here, the arrangements do not assist applicants. There is no substance to the asserted ground of review.

5. I agree with and adopt for the purposes of this judgment, with minor amendments, paragraphs 5 to 8 of the Minister's written submissions:

   The ground of review pleaded by the applicant is misconceived. The information identified by the applicant refers to information that the Applicant gave to the Tribunal for the purposes of the application for review and is therefore subject to the exception in s.424A(3)(b) of the Migration Act 1958 (Cth) ("the Migration Act"). Accordingly, the first respondent submits that there was no breach of s.424A of the Migration Act.

   Further, insofar as this is a complaint about s.425 of the Migration Act, the Tribunal complied with its obligations under that section. The Tribunal's reason for rejecting the applicant's claims was that the applicant did not appear to be a genuine Falun Gong practitioner because of her lack of knowledge of that practice.

   To the extent that the applicant complains that she was not given an opportunity to comment on the fact that the Tribunal did not believe that she was a genuine Falun Gong practitioner because of her limited knowledge about it, the Tribunal's record of hearing demonstrates that the questions asked of the applicant were sufficient to put her on notice that the Tribunal had doubts as to whether the applicant was a genuine Falun Gong practitioner. The Tribunal also questioned the applicant about who had taught her about Falun Gong in Australia. There was a lengthy discussion about the fact that the applicant's practitioner friend had only taught the applicant very basic principles of Falun Gong and that the applicant was awaiting her friend's return from China to continue her teaching.

   Further, the Delegate's reasons for rejecting the applicant's claims were due to the applicant's lack of knowledge about Falun Gong. Accordingly, the applicant would have been aware of the issues that were under review:  see SZBEL v Minister for Immigration (2006) 228 CLR 152.

6. I received the court book filed on 28 August 2007 as evidence in this matter. I have considered whether there may be any other issue in the case supporting a claim of jurisdictional error. None is apparent to me.

7. I find that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed.

8. The application having been dismissed, costs should follow the event. Scale costs in this instance would be $5,000. The Minister seeks $4,500. I am satisfied that that is a proper and reasonable party and party assessment. The applicant was concerned about the amount of costs and whether she would have to pay by a particular date. The order that I will make will not impose any time limit on a payment of costs. I order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  1 February 2008