SZLEF v Minister for Immigration
[2008] FMCA 400
•18 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLEF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 400 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal. |
| Migration Act 1958, ss.91R, 424A, 425, 426, 427, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLEF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2459 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 March 2008 |
| Date of Last Submission: | 18 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2459 of 2007
| SZLEF |
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, he claims, he was a Falun Gong practitioner. He alleges that while in China he was forced to practise Falun Gong secretly. The applicant arrived in Australia on
26 February 2007.
The applicant claims to fear persecution in China because of his Falun Gong practice.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
24 March 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 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 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 67 – 73). Relevantly, they are in summary:
Protection visa application
In his protection visa application, the applicant made the following claims:
a)he was introduced to Falun Gong by Ms Y at the end of 1997 and has been practising since then;
b)in September 2002 he was arrested by the police and detained for two months. During this time he was tortured and forced to sign documents which were against Falun Gong;
c)after his release the applicant was kept under close surveillance;
d)after his detention the applicant found out that he had been arrested because the police thought he was going to appeal in front of the Dalian City government building; and
e)following his release taxation officers asked him to pay more taxes using various excuses.
Tribunal hearing
At the hearing before the Tribunal, the applicant made the following additional claims:
a)he had difficulties obtaining his passport because the local police were aware that he had a record of Falun Gong activities;
b)he became a Falun Gong practitioner in the 1990s, sometime between 1997 and 1998, however, anomalously said that he did not know or join Falun Gong at that stage. The applicant saw from the television and the newspapers that practitioners were being persecuted and he felt sympathy for them;
c)later on he met Mr S when he was at a restaurant with friends. They talked about Falun Gong, exchanged telephone numbers and became closer. Mr S was later dismissed from his work because of his Falun Gong faith;
d)the applicant formally joined Falun Gong in around May 2002 after he started to have contact with Mr S. He and other practitioners would meet secretly to read books, watch tapes, have discussions and exercise together. They also distributed leaflets and CDs which were given to them by Mr S;
e)at this time anyone who reported a Falun Gong practitioner received 5000RMB so they had to keep things secret;
f)the applicant wondered why so many people adhered to Falun Gong even though they were being persecuted. He decided to try Falun Gong for himself and became a practitioner after realising that it was good;
g)in the summer of 2004, Mr S was questioned by security guards. The applicant was present at this time and told the security guards that they had no right to question Mr S. When the security guards asked the applicant for his identity card, Mr S told him not to show them and asked the applicant to leave. He left because he realised it was serious;
h)on another occasion in 2004 he was discovered distributing leaflets but ran away before he could be caught. These were the only two occasions he had contact with the government authorities in relation to Falun Gong;
i)at the end of 2006 the applicant obtained a job as a crew member on board a ship and was granted a group visa to enter Australia;
j)since entering Australia, the applicant has
i)read another book on Falun Gong;
ii)continued to practise Falun Gong, sometimes at home or in the park;
iii)attended two Falun Gong discussion groups in Campsie; and
iv)marched in the city to celebrate Master Li’s birthday;
k)his protection visa application was completed with someone’s assistance. The applicant wrote the first part of the original statement but the person who helped him then told him that he needed to put in more details so that person then dictated the rest of the statement to the applicant who wrote it down; and
l)the applicant indicated that his evidence at the hearing was the whole story and that the Tribunal could disregard his written statement.
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)the Tribunal totally disregarded the written statement made by the applicant in his protection visa in light of the applicant’s evidence at the hearing that he no longer wished to rely on that statement as a true account of his circumstances. The Tribunal therefore determined the applicant’s case according to the claims he made at the hearing;
b)the Tribunal found that the applicant’s critical claims lacked credibility, noting that he gave contradictory evidence during the course of the hearing, including that:
i)he had difficulty obtaining his passport which was issued in October 2003 because the local police were aware that he had a record of Falun Gong activities, yet later stated that his only contact with the Chinese authorities was in 2004;
ii)he had no problems leaving China, however, independent country information indicated that the applicant would not have been issued with a passport nor would he have been allowed to leave China if he was indeed known to the police to have a record of Falun Gong activities;
iii)he variously stated that he became a Falun Gong practitioner in 1997 or 1998, and/or in May 2002;
c)the Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that he was introduced to Falun Gong by Mr S or Ms Y, noting that it was highly unlikely that Mr S would have openly discussed Falun Gong in a public place with a group of strangers, particularly after Falun Gong was banned and in light of the financial rewards being offered for information on Falun Gong practitioners;
d)the Tribunal did not accept that the applicant:
i)attended meetings and discussion groups with practitioners in China;
ii)read a book or watched tapes on Falun Gong, or practised Falun Gong exercises in China;
iii)distributed leaflets or CDs in China; or
iv)was genuinely in fear of persecution, noting that he did not attempt to leave China until over three years after he had obtained his passport; and
e)the Tribunal found that the applicant engaged in Falun Gong activities in Australia for the purpose of strengthening his claim to be a refugee and accordingly disregarded that conduct pursuant to s.91R of the Act.
Proceedings in this Court
In his application commencing these proceedings, the grounds pleaded are set out as follows:
As per RRT letter page 11 to 13 [sic].
The applicant also wrote to the Court on 30 July 2007. That letter has been received today as a form of written submission. It raises a number of matters which go to the merits of the applicant’s claim for a protection visa and to the findings of fact made by the Tribunal preliminary to its finding on the merits.
Application
The application does not articulate any particular basis upon which a finding of jurisdictional error might be made. A review of the Tribunal’s decision does not disclose any breaches of s.424A or s.425 of the Act, which are the principal provisions of div.4 of pt.7 of the Act, nor is any other breach of the provisions of that division apparent.
Certainly, the applicant did ask the Tribunal to call Mr S to give evidence as recorded at CB 55, but as Mr S was stated in that request to then be located in China it is hardly surprising that the Tribunal did not attempt to use such powers that it had under s.427 of the Act to have Mr S attend the hearing. The Tribunal’s power of summons does not extend beyond Australia to China and as it had no power to summons Mr S to attend the Tribunal hearing, no jurisdictional error is demonstrated because it did not apparently attempt to do so. Nor is any miscarriage of the Tribunal’s discretion under that section disclosed.
As to any possible breach of s.426(3), which requires the Tribunal to have regard to an applicant’s wishes that a particular person be called to give evidence, there is no evidence one way or the other whether the Tribunal had any regard to the applicant’s wish that Mr S attend to give evidence. However, as the applicant bears the onus of proving that such a consideration was not given and has led no evidence on this point, the absence of evidence on the question can only lead to the conclusion that such an allegation, were it being made, is not made out.
But in any event, even were it to be demonstrated that the Tribunal failed to have regard to the applicant’s wishes as required by s.426(3), any jurisdictional error which that might disclose would not warrant the Tribunal’s decision being quashed as it would be futile to do so. Remitting the matter to the Tribunal to be redetermined would be of no utility because even if the Tribunal gave further consideration to the applicant’s request it could do nothing about it as Mr S was located in China. As any remission of the matter to the Tribunal on this account would be futile, in the exercise of the Court’s discretion an order quashing the Tribunal’s decision would not be made in this connection.
Written submissions
Turning to the written submissions which were filed in Court today, the applicant raises a number of issues, for instance:
a)the Tribunal did not accept that he was a Falun Gong practitioner;
b)when he was asked questions at the hearing his answers were not wrong;
c)there was nothing wrong with his demonstration of Falun Gong exercises at the Tribunal hearing; and
d)he did not have money to leave China in 2003.
Each of these matters raised by the applicant in that written submission addresses findings of fact by the Tribunal and its ultimate findings on the merits of his application.
The role of the Court and the role of the Tribunal are quite different. The role of the Tribunal is to make findings of fact based on the evidence before it and to reach a conclusion on the merits of the applicant’s claim for a protection visa based on the facts which it has found or been unable to find.
In judicial review proceedings such as these, the Court cannot reconsider the Tribunal’s decision on the merits of the claim for a protection visa or the Tribunal’s findings of fact, except in very limited circumstances which do not apply here. The Court’s role is to determine whether the Tribunal applied procedure properly and applied the law properly. The Court’s role is to ensure that there was fair procedure and it cannot be concerned with whether there was a fair outcome. Consequently, the matters which the applicant has raised in his written submissions do not disclose any basis upon which jurisdictional error on the part of the Tribunal might be found.
Oral submissions
Turning to the applicant’s oral submissions today, the applicant made four points in his submissions but each one of those suffers the same defects as the written submissions to which I have just made reference and thus do not disclose jurisdictional error on the part of the Tribunal.
Having made that comment I address specifically one additional matter which the applicant raised today, namely, that the Tribunal relied on material contained in his protection visa application statement when it said that it would not. A consideration of the Tribunal’s decision reveals that the applicant’s concern, that the Tribunal relied on his original statement concerning when he commenced practice of Falun Gong, misunderstands the evidence which the Tribunal records him as having given to it. The evidence recorded at p.7 of the Tribunal’s decision (CB 70) reveals that the applicant said that he became a Falun Gong practitioner in the 1990s, sometime between 1997 and 1998, and that he formally joined Falun Gong in around May 2002.
Consequently, I find on the facts that this allegation is not made out.
The applicant also said that the Tribunal’s recording of the evidence at the hearing is wrong and that, in fact, he had not said that he started to practice Falun Gong in 1997 or 1998, merely that he knew about it. There has been no evidence in support of such a submission such as by way of a transcript of the Tribunal hearing. There is no basis upon which I can conclude that the record of the evidence contained in the Tribunal’s decision is incorrect and thus I find the applicant’s allegations on this issue to be not made out.
The only other potential matter which requires consideration is whether the Tribunal failed to apply s.91R(3) of the Act correctly. I am satisfied that the Tribunal did not have regard to the applicant’s conduct in Australia, having concluded that the applicant engaged in that conduct for the purpose of enhancing his claim for a protection visa. The Tribunal accurately expressed its conclusion in the terms required by the section, namely, that it was not satisfied that the applicant engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Act.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 1 April 2008
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