SZLDF v Minister for Immigration - [2008] FMCA 200

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 200

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 474; pt.8 div.2

Abebe v Commonwealth of Australia (1999) 162 ALR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant:

SZLDF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2365 of 2007

Judgment of:

Emmett FM

Hearing date:

15 February 2008

Date of Last Submission:

15 February 2008

Delivered at:

Sydney

Delivered on:

15 February 2008

REPRESENTATION

In person with Mandarin interpreter

Solicitors for the Respondent:

Ms A. Crittenden, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2365 of 2007

SZLDF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 June 2007 and handed down on 26 June 2007.
The Applicant claims to be from the People's Republic of China (“China”) and a Falun Gong practitioner.
The Applicant arrived most recently in Australia on 1 January 2007, having departed legally from Baiyun Airport on a passport issued in her own name and a subclass 676 visa issued on 18 December 2006.
On 7 February 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.
The Applicant provided a statement in support of her protection visa application in which she asserted that she had become a Falun Gong member in 1998 and had practiced continuously since that time. The Applicant stated that following the Chinese government's crackdown of Falun Gong at the end of 1999 she was asked to report to police to confess her involvement with Falun Gong. The Applicant alleged that she suffered mental and physical mistreatment from the Chinese government because of her beliefs.
The Applicant also stated that in July 2006 she came to Australia for six days during which time she attended some Falun Gong activities in Australia. She then returned to China where she stated her activities continued to be supervised by police. She said the supervision of her activities by police prevented her from remaining in touch with other Falun Gong practitioners, and for that reason she obtained a visa to come to Australia.
On 26 March 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate was not satisfied about the credibility of the Applicant's claims or the genuineness of her claim of a fear for Convention-related persecution. In support of its finding the Delegate stated that the Applicant's claims were uncorroborated and that much of the information she provided was broad and lacking in relevant detail.
The Delegate also noted that while the Applicant claimed that during her six day visit to Australia she attended some Falun Gong activities, she did not provide any details of those activities. The Delegate also had regard to the fact that the Applicant had been in Australia for six days in 2006 and made no attempt to seek protection from the Australian government at that time.
The Delegate also found that there was no objective evidence to indicate that the Applicant held a profile that would attract adverse attention from authorities if she were to return to China. The Delegate noted that her passport was issued in her own name and that she had used a passport to leave China legally twice without any difficulty.
The Delegate also found that there was no evidence to indicate that the Applicant had suffered any discrimination in China amounting to persecution. The Tribunal found that the Applicant had access to education, regular employment and was able to obtain a valid passport in her own name in her home town.
The Delegate found that the Applicant had suffered no interference with her rights to employment and education, her freedom of movement had not been curtailed and she had access to adequate funds. For those reasons the Delegate concluded that it was unable to be satisfied that there was a real chance that the Applicant would suffer systematic persecution on account of her support for Falun Gong should she return to China.
On 26 April 2007, the Applicant lodged an application for review of the Delegate's decision with the Tribunal. The Applicant provided no further material in support of her application.
The Applicant appeared before the Tribunal on 4 June 2007 and gave further evidence. The Tribunal noted the Applicant's claim that she had started Falun Gong in 1998 and noted that the Applicant stated she had not made contact with Falun Gong practitioners in Australia. The Tribunal noted that it asked the Applicant why this was, and noted the Applicant's response that after she came to Australia she needed to earn a living and had no time.
The Tribunal noted the expansion of that explanation by the Applicant and noted that, ultimately, the Applicant stated that she practiced privately. The Tribunal noted that it discussed with the Applicant various aspects of Falun Gong including the exercises. The Tribunal noted the concerns it had with the Applicant's evidence relating to her knowledge of Falun Gong. In particular the Tribunal noted that the Applicant knew of only one exercise, although she did not know its correct name for it and declined to demonstrate the exercise for the Tribunal. The Tribunal noted that the Applicant said she mainly “just sits and medicates(sic)”.
The Tribunal noted that it put to the Applicant that if she had been practicing Falun Gong for over six years the Tribunal might expect that she would have known all five exercises and would have made contact with fellow practitioners in Australia. Again, the Tribunal noted the Applicant stated she worked 17 to 18 hours a day seven days a week and has no spare time. The Tribunal noted that it asked the Applicant if there was anything further she wished to state to the Tribunal and noted her response that she did not.
The Tribunal found the Applicant to be “unconvincing” in her evidence and did not accept that she is a Falun Gong practitioner. The Tribunal was not satisfied by the explanations given to it by the Applicant about concerns it raised with the Applicant about various aspects of her claims. In particular, the Tribunal found her explanation for her lack of knowledge and her reason for not contacting Falun Gong practitioners in Australia to be unconvincing.
The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner and found there was no real chance that the Applicant may suffer serious harm should she return to China for any convention related reason. Accordingly, the Tribunal affirmed the decision under review.
The Applicant appeared before the Court this morning unrepresented, although had the assistance of an interpreter.
The Applicant confirmed that she relied on the grounds identified by her in an amended application filed on 15 October 2007. The grounds of that application are as follows:
“1. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.
2. The Tribunal failed to consider the chance of my persecution on my return to China because of my practice of Falun Gong in Australia.
3. Enclosed please find the evidence of my practice of Falun Gong in Australia.”
Ground 1 was interpreted for the Applicant and she was invited to make whatever submission she wished in support of that allegation. The Applicant confirmed that she had a copy of the Tribunal's decision and that the complaint she made in ground 1 was that she had not been given an opportunity to comment on those reasons. Such a complaint is misconceived. The Court explained to the Applicant that the Tribunal was not obliged to provide to the Applicant a copy of the Tribunal’s reasons for her comment.
Accordingly, ground 1 is not made out.
Ground 2 was interpreted for the benefit of the Applicant and she was invited to make submissions in support of that allegation. The Applicant made no meaningful response other than to begin to reiterate her factual claims. The ground is otherwise unsupported by particulars and discloses no ground capable of review by this Court. The complaint appears to be more in the nature of a disagreement with the factual findings and conclusions of the Tribunal, thereby inviting merits review, which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
In the Applicant's affidavit filed on 31 July 2007 in support of her initial application filed on the same date, the Applicant made the following two complaints:
“1. The Tribunal failed to refer to sufficient independent information for the consideration of my application.
2. The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958.”
The Applicant was invited to make submissions in support of those paragraphs. The Applicant was asked by the Court whether there was any independent information provided by her to the Tribunal that the Tribunal had failed to consider. The Applicant was unable to make any meaningful response and again commenced to reiterate her own evidence.
Paragraph 2 is not accompanied by any relevant particulars that are capable of asserting a breach of s.424A of the Act.
A fair reading of the Tribunal's decision makes clear that it was the unsatisfactory nature of the Applicant's evidence that was the reason the Tribunal affirmed the decision under review. The Applicant had been put on notice from the Delegate's decision of the inadequacy of the detail of her claims and that there was no corroborative material. The Applicant did not provide any further material to the Tribunal in support of her application, despite being invited in writing on two occasions, being 27 April 2007 and 3 May 2007, to send any documents to the Tribunal that she wished the Tribunal to consider.
In the circumstances, there was no information apparent on the face of the decision record that enlivened the obligations of s.424A of the Act. The findings of the Tribunal, including the adverse credibility findings, were open to the Tribunal on the evidence of the material before it and for which it provided reasons. The Tribunal applied the correct law to the facts as it found them to be.
The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. The Tribunal's decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 18 February 2008