SZLFE v Minister for Immigration

[2008] FMCA 244

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLFE v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 244

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLFE”.

Migration Act 1958 (Cth), s.91X

Applicant: SZLFE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2564 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 20 February 2008

Delivered at: Sydney

Delivered on: 20 March 2008

REPRESENTATION

Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter.

Counsel for the Respondents: Mr HPT Bevan

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 20 August 2007 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2564 of 2007

SZLFE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant claims she is from Yang Pu District, Shanghai, the People’s Republic of China.  She claims that she was born in 1957, is married and has one daughter.  She completed school in 1975 and worked as an office worker in an organisation called Baoshan Jiao Yuju in Shanghai until 2007.

2. She claims to be a genuine Falun Gong practitioner and she joined Falun Dafa in 1996.  At the time she was in poor health, suffering from lumbago which was so bad that she could not walk or sleep.  After practising Falun Dafa for a year and a half, she was suddenly able to walk and the pain in her legs had gone.  She states that she appreciates what Falun Gong has done for her.

3. When the applicant worked for a government agency, she could only practice Falun Dafa secretly.  However, someone reported her to the police and she was arrested in February 2002 and detained and tortured for two months.  She realised that she would be gaoled again if she stayed in China.  She claims she was assisted by a police officer friend in obtaining a passport and visa to travel to Australia.  She states that in Australia she is free to practice Falun Gong.

4. The applicant arrived in Australia on 14 February 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 8 March 2007.  A delegate of the Minister refused to grant the visa on 24 March 2007 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision.  On 28 June 2007, the Tribunal affirmed the delegate’s decision and it is this Tribunal decision (reference 071366000) that is the decision under review by this Court.

5. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”.  This document was read into evidence.

6. The original application filed on 20 August 2007 contains two un-particularised grounds of review:

   1.  The Tribunal has not fully addressed my claim that I [was] tortured by Chinese government.

   2.  There was no evidence or the other materials to justify the making of the decision.

   At the first Court date, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 9 November 2007.  She filed an amended application on 31 October 2007 which does not contain any grounds of review but substantially repeats the statement attached to her visa application (CB 27-28).

7. The applicant also declined the opportunity to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. 

Consideration

1. The Tribunal found that the applicant was neither truthful nor a credible witness because her evidence was “internally inconsistent and unconvincing”.  The Tribunal provided the following examples in support of this finding:

   a)The Tribunal cited that the applicant’s inability to paraphrase or independently discuss the principles of Falun Gong, which were contained in her written statement (CB 67.7-9).

   b)The Tribunal was concerned about the applicant’s evidence about her practice of Falun Gong, in particular that:

   i)she did not practice after 1997 (CB 61.5-7);

   ii)she was detained in 1996 and did not practice after her release in July 1996 (CB 61.9-62.4);

   iii)she was not detained or locked up until July 1996 (CB 62.5);

   iv)she was detained and beaten between February and April 2004 (CB 64.556).

   The Tribunal did not accept that these “major inconsistencies” could be explained by nervousness or poor memory (CB 68.3).

   c)The applicant’s inability to name or demonstrate any of the movements in Falun Gong’s exercise regime (CB 68.3-5).

2. The Tribunal found that the applicant was not a genuine Falun Gong practitioner in 1996 as claimed, and, therefore, did not accept that she was detained and mistreated because of Falun Gong in 1996 or 2004.  It also found that she has not practiced Falun Gong in Australia or sought to locate a practise site because she had no interest in Falun Gong.  The Tribunal found that the applicant would practise Falun Gong if she returned to China for the same reason (CB 68.5-6).  It noted that at the hearing the applicant claimed to be Christian.  However, no claim of harm or suffering was made by her in connection with her religious belief (CB 68.7). 

Amended application

1. The applicant’s amended application repeat the written statement attached to her protection visa application.  The Tribunal decision refers to the statement and sets out the gist of its contents.  It also notes that the applicant did not provide additional information when she filed her Tribunal application.  At the hearing held on 6 June 2007, the Tribunal asked the applicant about her statement and how it was prepared.  It sought elaboration on the issues the statement referred to.  As this course was pursued, a number of internally “inconsistent and unconvincing” aspects of the evidence became apparent.   The number of items within the statement was contradicted by the applicant in her evidence.

2. The amended application indicates that the applicant and whoever was assisting her had no comprehension of its purpose or how to identify issues in the review.  Considered together with the Tribunal’s decision, the applicant’s statement and the amended application, it is not apparent that any jurisdictional error was made by the Tribunal in the comparison between the original statement and the evidence given at the hearing. However, I believe it is appropriate to consider the grounds of review of the application filed on 20 August 2007. 

Ground one

The Tribunal has not fully addressed my claim that I [was] tortured by Chinese government.

1. Mr Bevan, for the first respondent, submits that the applicant made two claims concerning mistreatment by the Chinese authorities:

   a)In her written statement in which she claimed she was detained and tortured in 2004 (CB 28.1).

   b)During the Tribunal hearing when she claimed she was also detained and beaten in 1996 (CB 61.9-62).

   It is submitted that the Tribunal questioned the applicant concerning both these alleged incidents and did not accept the applicant’s claim.

2. I agree with Mr Bevan’s submission that the Tribunal decision clearly shows that it addressed the totality of the claim in respect of both the alleged periods of detention and associated torture.  Further, the Tribunal considered and assessed all of the claims before it, either in the form of the original statement or raised at the hearing.  I accept that there is nothing to suggest the applicant made further or additional claims concerning mistreatment by Chinese authorities.  I am satisfied that this ground of review cannot be sustained and should be dismissed.

Ground two

There was no evidence or the other materials to justify the making of the decision.

1. Mr Bevan submits that the Tribunal did not accept the applicant’s claims because it did not believe the applicant’s evidence.  This ground is made in the absence of any particulars and is unsupported by oral or written submissions.

2. I accept Mr Bevan’s submission that the Tribunal’s finding was open to it on the evidence before it and that no refutable error arises.  I am satisfied that this ground cannot be sustained and should be dismissed.

Conclusion

1. The applicant is a self represented litigant who appeared with the assistance of a Mandarin interpreter.  She declined to participate in the Court sponsored legal advice scheme preferring to rely on the services of a Mr Liu who a friend introduced her to.  She said that she attended Mr Liu’s office in Chinatown on several occasions to prepare her review before the Tribunal and this Court.  As indicated by the applicant in her evidence before the Tribunal, Mr Liu is the person associated with the post boxes located in the convenience store at 226 Elizabeth Street, Surry Hills, being an address that regularly appears in applications to this Court.  This individual has been of absolutely no assistance to the applicant in her review application.  The amended application is of no assistance in identifying jurisdictional error.

2. Mr Bevan, appearing for the respondents, assisted with written and oral submissions in response to the original and amended applications.  I am satisfied that the issues identified in those documents have been satisfactorily addressed by those submissions.  The Court has a further obligation to independently consider whether any argument based on the material contained in the Court Book or the Tribunal decision can support a claim of jurisdictional error.  It is not apparent that any other ground of review exists which would suggest that the Tribunal has made a jurisdictional error in its decision-making process.  Consequently, the applicant’s claim should be dismissed.

3. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date: