SZLFI v Minister for Immigration
[2008] FMCA 122
•31 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLFI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 122 |
| MIGRATION – Review of RRT decision – where Tribunal did not accept that applicant was a Falun Gong practitioner – no point of principle. |
| Migration Act 1958, s.422B |
| SZDFO v Minister for Immigration [2004] FCA 1192 |
| Applicant: | SZLFI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2580 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 31 January 2008 |
| Date of last submission: | 31 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2580 of 2007
| SZLFI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China, who arrived in Australia on 19 February 2007 and applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 21 February 2007. Her application was considered by a delegate of the Minister, who refused to grant her a protection visa on 24 March 2007. On 26 April 2007, the applicant applied for a review of the delegate's decision from the Refugee Review Tribunal. On 8 May 2007, the Tribunal wrote to the applicant advising her that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 28 June 2007, at which she could present evidence and call witnesses, if required. The applicant attended before the Tribunal. On 29 June 2007, the Tribunal determined to affirm the decision under review, and it handed that decision down on 19 July 2007.
The applicant had received a copy of the decision of the delegate [CB36‑39]. If she had read that document, she would have seen that one of the main reasons why the delegate did not grant her the visa she requested was the vagueness of her statement and the lack of detail in it. The applicant had told her story [CB13] of being a Falun Gong practitioner and leader of the Falun Gong organisation in Shanghai and of being detained for three months in a Shanghai detention centre and tortured because of her practice of Falun Gong. However, she had not given any dates or any description of the arrest and incarceration, nor had she given very much in the way of information concerning exactly what she did within the organisation so as to be considered a leader. Armed with this document and with the letter from the Tribunal informing her that the written information alone was not sufficient, she might have been expected to attend the hearing and have been prepared at the hearing to provide the Tribunal with the sort of particulars that might make her story more convincing. Unfortunately, the record of the Tribunal hearing contained in the statement of reasons and decision [CB62‑63] indicates that she was unable to provide very much further in the way of particularisation. In fact, although she had described herself originally as a Falun Gong practitioner, she told the Tribunal that she was not really a practitioner at all, more a promoter.
It is not surprising, therefore, that the Tribunal concluded, after hearing the applicant and questioning her that it did not accept her claims that she was persecuted for her Falun Gong beliefs and practices or other Falun Gong activity. This is a logical conclusion that the Tribunal was capable of coming to on the evidence (or, rather, lack of it) [CB 65]:
“Since the Tribunal does not accept that the applicant is a genuine Falungong practitioner or promoter, the Tribunal does not accept that there is a real chance that she will practice or promote Falun Gong if she returns to China, nor is there a real chance that she will be persecuted for reasons of her claimed Falungong beliefs, practices and/or related activities if she returns to China now or in the reasonably foreseeable future.”
When the applicant appeared before me today, I asked her to explain to me in her own words why she believed the Tribunal had made an error of law in the manner in which it reached the decision that I have referred to. The applicant told me that she did not know how to answer that question. After some further questioning by me, she told me that she believed that she had told the Tribunal the truth and she wanted me to give her another chance to convince another Tribunal of this fact. An allegation of this type does not point to any particular jurisdictional error in the findings of the Tribunal and would normally be considered to be a request for impermissible merits review.
On 21 August 2007, in her application to this Court, the applicant put forward three reasons why she believed the Tribunal had erred. The first was:
“It is not reasonable for the Tribunal not to accept that I am a Falun Gong practitioner.”
Although the Tribunal comes to a conclusion about an applicant's claims based upon available evidence, that conclusion does not need to be right in order for it to be lacking in jurisdictional error. As Allsop J said in SZDFO v Minister for Immigration [2004] FCA 1192 at [11]:
“The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error.”
In this particular case, the reason that the Tribunal came to the view that the applicant was not a Falun Gong practitioner was, firstly, probably because she said she was not, and, secondly, because she was totally unable to respond to any reasonable question put by the Tribunal about the Falun Gong philosophy. Thus, there was evidence upon which the Tribunal could come to a finding, and, having done so, there is no scope for the court to move to change it.
The second ground raised by the applicant is:
“I was denied procedural fairness in connection with the making of the decision.”
The applicant does not define or particularise the procedural fairness which she was denied. Mr Reynolds, who appears for the Minister, rightly points out that the procedural fairness obligations of the Tribunal are those circumscribed by s. 422B of the Migration Act 1958 (“the Act”). The applicant received an invitation to a hearing, she attended a hearing, she was given an opportunity to give evidence and to call witnesses, and the issues relating to the decision were clearly put to her. She had received a copy of the delegate's decision and, as previously mentioned, she would have known from that where the weaknesses lay in her claims. I am unable to agree with the applicant that she was denied procedural fairness.
The third ground raised was:
“The Tribunal failed to assess the possibility of the risk of being prosecuted for the applicant if the applicant returns to China.”
This is an allegation which cannot be sustained in the light of the Tribunal's decision. The Tribunal came to the view that the applicant is not a genuine Falun Gong practitioner and has not been placed into detention. Once that finding had been made, it would be very difficult indeed for the Tribunal to be logically consistent and find that she would be persecuted if she returned for association with an organisation that the Tribunal did not believe she was associated with. I cannot accept that the Tribunal fell into jurisdictional error in this manner either.
Given the findings I have made, it must follow that the application should be dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 February 2008
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