SZLEO v Minister for Immigration - [2008] FMCA 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 193

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth)

Applicant:

SZLEO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2496 of 2007

Judgment of:

Barnes FM

Hearing date:

18 February 2008

Delivered at:

Sydney

Delivered on:

18 February 2008

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Mitchell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2496 of 2007

SZLEO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 10 July 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in February 2007 and applied for a protection visa. In his protection visa application he claimed that he was a Falun Gong practitioner who would face discrimination and persecution should he return to China. He claimed that he began to learn about and then practice Falun Gong in 1997. He claimed a lot of practitioners had been sent to gaol or interviewed by local government and that he had “the same experiences like that”. He claimed that he had received warnings from the local police and local government many times and that he was beaten by police when he “appealed” in front of government buildings. The applicant claimed that with a friend's help he obtained a passport and visa to come to Australia by bribing government officials.
The application was refused and the applicant sought review by the Tribunal. Among other things the delegate had regard to the vagueness and lack of substantiation of the applicant's claims.
The applicant attended a Tribunal a hearing. The only account of what occurred in the hearing is the Tribunal reasons for decision. The Tribunal summarised the evidence given by the applicant, in particular his evidence that he had practised Falun Gong in private every day since 1997, that he had not received any training in Falun Gong and had just watched a CD, had not read Master Li's book, “Zhuan Falun”, and could not remember the number of Falun Gong exercises.
The applicant was recorded as having initially told the Tribunal that he had participated in a protest and was beaten in 2001. He subsequently stated that he had protested with other Falun Gong practitioners and was attacked in 1999. The applicant was also recorded as having told the Tribunal that he lived happily in China thereafter, until he departed from China in 2007. He also told the Tribunal that Falun Gong had not been banned in China. The Tribunal recorded that it put to the applicant its concerns about his lack of knowledge of Falun Gong and inconsistencies in his evidence and that he had nothing to say in reply.
After referring to independent evidence in relation to Falun Gong and exit control in the People's Republic of China the Tribunal summarised the applicant's claims. It had regard to the fact that although the applicant claimed that he started practising Falun Gong in 1997 (that is before the 1999 crackdown) and that he continued to practise in Australia, when asked specific questions by the Tribunal he could not answer them and said that he was “only interested in exercises”.
The Tribunal recorded that the applicant could not identify the main text or give any evidence about its contents, that he was not able to say how many Falun Gong exercises there were and was not able to name one, that he showed no knowledge of the history and philosophy of Falun Gong and was not able to espouse the principles of Falun Gong and demonstrated no knowledge of Falun. The Tribunal had regard to the applicant’s explanation that he was only interested in the exercises and had practised them every day for ten years. However, the Tribunal found that the applicant's evidence at the hearing was inconsistent and displayed a complete lack of knowledge of Falun Gong. It had regard to the fact when asked to elaborate on the circumstances surrounding his claimed treatment by police the applicant was not able to give any detail and the evidence he gave about the year of such event was inconsistent. The Tribunal stated that it would have anticipated that such an event would have evoked strong emotions and memories. It also had regard to the applicant's evidence that thereafter he lived happily in China and that he did not know that Falun Gong was banned in China.
The Tribunal acknowledged that it may be difficult for applicants to articulate the principles and meaning behind the practice of Falun Gong in a hearing, but found that it would expect a Falun Gong practitioner of some 10 years' standing, as the applicant claimed to be, “to be able to articulate at least a basic understanding of the principles and theory of Falun Gong”, to know that there were five Falun Gong exercises and to be able to name or describe them. It found the applicant's lack of knowledge of the principles and meaning of the Falun Gong and his inability to even name the exercises to be highly inconsistent with his claim that he practised Falun Gong over a 10 year period, even if periods of that practice were done alone or in secret.
In light of the deficiencies in the applicant's evidence the Tribunal did not accept that he was a Falun Gong practitioner in China or that he practised in Australia. Hence it did not accept that he was beaten as claimed for protesting against the treatment of Falun Gong or for any other reason.
The Tribunal also addressed the applicant's claim that he was at risk from the authorities if he were to return to China. It noted that he left China legally and on valid travel documents, that his oral evidence at the hearing was that he was of no interest to the authorities and that he could not articulate why he would be at risk if he returned. Having regard to independent country information and the applicant's evidence, the Tribunal found that the applicant was of no interest to the authorities in China.
As indicated, the Tribunal did not accept that the applicant had or would have been perceived as having any past association with Falun Gong or that he suffered harm in China as a result. Nor did it accept that if he returned to China there was a real chance that he would be perceived to be a Falun Gong practitioner or persecuted for reasons of any real or imputed religious beliefs or membership of a particular social group on the basis of his claimed involvement with Falun Gong. As he had not claimed any other reason for fearing to return to China the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he returned to China.
The applicant sought review by application filed in this Court on 14 August 2007. He has not filed any written submissions. The first two grounds in the application are as follows:
We really fear returning to China because I was a Falun Gong practitioner. We had terrible experience when I was in China.
In the accompanying affidavit he also claimed he faced a risk of being gaoled if he went back to China. However, as I explained to the applicant, the Court cannot review the merits of his Tribunal decision.
The third ground in the application is that the decision of the Tribunal was not fair. Insofar as the applicant takes issue with fairness in the sense of accuracy of the factual findings, merits review is not available in this Court. There is nothing in the material before the Court to indicate that the findings that the Tribunal made were not open to it on the material before it for the reasons that it gave. As submitted for the first respondent there is nothing to indicate any error of law, unreasonableness or perversity or that the Tribunal otherwise erred in its decision or procedures in a manner constituting jurisdictional error.
In oral submissions the applicant stated that he would like to prove to the Court that he was a genuine Falun Gong practitioner. He took issue with the Tribunal's approach to his claims on the basis that different people had different levels of knowledge and involvement in Falun Gong. These contentions seek merits review and do not establish jurisdictional error.
Insofar as the applicant intends by these claims to take issue with the Tribunal's reliance on independent evidence in relation to Falun Gong, the weight to be given to items of independent evidence is a matter for the Tribunal. There is nothing in the material before the Court to establish that the Tribunal's findings, which were based on the applicant's own evidence at the hearing, or the conduct of the hearing itself gives rise to any suggestion of jurisdictional error. As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful. The Minister seeks that he pay the Minister's costs of these proceedings in the sum of $4,800. The applicant took issue with this on two bases. First he claimed that no one raised this issue with him, despite the fact that it appears that he attended a directions hearing with the assistance of a Mandarin interpreter. The first respondent tendered a copy of a letter sent by the first respondent's solicitors to the applicant dated 23 August 2007 enclosing a notice of appearance and advising the applicant of a number of issues, including the fact that if his application failed the respondent would ask the Court for orders that he pay the costs incurred by him in relation to these proceedings. In light of material that is before the Court the applicant's claim that no one raised the issue of costs with him is not such as to warrant a departure from the normal rule in relation to costs in this instance.
The applicant also claimed that he had lost his job. However, such a claimed lack of funds is not a reason for departing from the general principle that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 February 2008