SZLDW v Minister for Immigration

[2008] FMCA 319

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDW v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 319

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant bears onus of showing he was denied a fair hearing – onus not discharged – Tribunal has no duty to ask an applicant any particular questions – it is for an applicant to put evidence and arguments before the Tribunal such that it might reach the satisfaction required by the Act.

Migration Act 1958, ss.424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZLDW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2444 of 2007

Judgment of: Cameron FM

Hearing date: 5 March 2008

Date of Last Submission: 5 March 2008

Delivered at: Sydney

Delivered on: 5 March 2008

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2444 of 2007

SZLDW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He alleges in a statement submitted to the Refuge Review Tribunal (“Tribunal”) that while in China he was beaten by the Chinese authorities and forced to sign a confession. The applicant left China for Australia where, he alleges, he has continued to practise Falun Gong.

2. The applicant claims to fear persecution in China because of his adherence to Falun Gong.

3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 24 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.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. Some of the facts alleged in support of the applicant’s claim for a protection visa are set out on page 4 of the Tribunal’s decision (Court Book (“CB”) page 59). Other facts are found elsewhere in the evidence. The Tribunal summarised the facts alleged to support the application as follows:

   a)before 1999 the applicant practised Falun Gong with 12 others;

   b)following the 1999 crackdown on Falun Gong, the group leader was arrested and imprisoned for two years while the applicant and others were forced to sign confessions. Despite this, the applicant continued to practise and did so underground;

   c)the applicant has reason to believe that “sooner or later” the government will find out that he has been practising Falun Gong, possibly by his practice being revealed to authorities by a neighbour who was arrested;

   d)the applicant practises the Falun Gong exercises to get fit; and

   e)since arriving in Australia, he has joined a Falun Gong practice group.

The Tribunal’s decision and reasons

1. 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 that the applicant was, or had ever been, a Falun Gong practitioner, noting that:

   i)his ignorance of Falun Gong was so comprehensive that there was no risk the applicant would incur harm amounting to persecution;

   ii)given the number of available alternatives, a person whose only interest is in keeping fit would not run the risk of arrest by practising exercises frowned on by the authorities; and

   b)in light of these findings, the Tribunal was not satisfied that the applicant’s claims were credible and it did not accept that he had been arrested, beaten, subject to on-going harassment of any kind from the authorities, or that there is a real chance he would suffer harm should he return to China.

Proceedings in this Court

1. The grounds of the application commencing these proceedings make the following allegations:

   a)the Tribunal failed to exercise its jurisdiction;

   b)the Tribunal failed to conduct a proper hearing because the applicant was unable to fully present his evidence as the hearing was ended in a curt manner after half an hour; and

   c)the Tribunal breached s.424A of the Act.

2. In his affidavit sworn or affirmed 8 August 2007 and filed with the initiating application, the applicant also states his belief that the Tribunal acted capriciously and arbitrarily in making its finding that he was not a committed Falun Gong practitioner. Today the applicant said that he wished to rely upon that part of his affidavit as an additional ground of review.

Failure to exercise jurisdiction

1. Although the possible first ground of review found in the application is expressed as if it were a separate ground, it is not completely clear that it is meant to be separate from the allegation that the Tribunal failed to conduct a proper hearing. Assuming that it is intended to be a separate ground, it must be said that it is supported by no particulars which might give it any substance. Indeed, a consideration of the Tribunal’s decision indicates that it has no substance. In the circumstances, the first possible asserted ground of review does not support a finding of jurisdictional error on the part of the Tribunal.

Failure to conduct a proper hearing

1. The “RRT Hearing Record” reproduced at pp.44 and 45 of the Court Book shows that the Tribunal hearing started at 9:50am on 12 July 2007 and concluded at 10:35am with a twenty minute adjournment between 10:10am – 10:30am. Undoubtedly it was a brief hearing and one can understand the applicant being concerned that it was not as long as those of other applicants to whom he referred in his submissions today.  However, it must also be observed that this was not a complex case.

2. The applicant has presented no evidence, such as a transcript of the Tribunal hearing, to show that the Tribunal was too quick in the circumstances or that he wished the Tribunal hearing to continue or that he was prevented from presenting his case. The applicant bears the onus of showing that he was denied a fair hearing or that the invitation he received to attend the hearing was not a real or meaningful invitation. In the absence of any evidence other than the Tribunal’s decision record which, it must be observed, contains nothing to support a finding that the applicant had been denied a proper hearing, the applicant has failed to discharge his onus of proof.

Breach of s.424A

1. The Tribunal’s finding was based on its assessment of the applicant’s credibility. It did not rely on information which had to be notified to the applicant by reason of s.424A(1) because the information upon which it relied in reaching its conclusion was information which the applicant had supplied to the Tribunal himself. Such information falls within the exception found in s.424A(3)(b) of the Act.

2. Moreover, conclusions such as those reached by the Tribunal are not information as that term is understood by s.424A(1). Consequently, this ground discloses no jurisdictional error on the part of the Tribunal.

Tribunal capricious and arbitrary

1. A consideration of the Tribunal’s decision reveals that it dealt with the facts admittedly in a brief way, but nevertheless with sufficient particularity and clarity that it can be concluded that the Tribunal’s decision was a reasoned one. For instance, the Tribunal recorded the way the hearing before it progressed, in part, in the following terms:

   In response to a question, he said he had started to practice Falun Gong in 1999 but not in the year it was banned. When I pointed out to him that that was the year it was banned, he stated that he could not remember. 

   I asked him what was the falun and he did not know. He answered correctly what colour it was but could answer no other questions about Falun Gong beliefs. When I commented that he seemed to know nothing about Falun Gong, he said that he had not read the book and just practiced the exercises to get fit. (CB 59)

2. This passage demonstrates that the Tribunal’s conclusion was based on the inadequacy of the applicant’s evidence and his inability to demonstrate the sort of knowledge a Falun Gong practitioner might be expected to know. The Tribunal’s conclusion was a logical one which was open to it. It was not capricious or arbitrary.

Generally

1. In his final comments today the applicant suggested that the Tribunal asked him wrong questions. Presumably the applicant submits that the Tribunal should have asked him questions which would have elicited the sort of information which would have satisfied the Tribunal that he met the criteria for a protection visa. The Tribunal has no obligation to ask any particular questions of the applicant, it being for an applicant to put evidence and arguments before the Tribunal such that it might reach the satisfaction required by the Act. In the circumstances, the final submissions by the applicant today do not disclose jurisdictional error on the part of the Tribunal.  

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  19 March 2008