SZLFV v Minister for Immigration

[2008] FMCA 201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLFV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 201

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 474; pt.8 div.2

Applicant: SZLFV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2644 of 2007

Judgment of: Emmett FM

Hearing date: 14 February 2008

Date of last submission: 14 February 2008

Delivered at: Sydney

Delivered on: 14 February 2008

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent: Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2644 of 2007

SZLFV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 June 2007 and handed down on 24 July 2007. 

2. The Applicant claims to be from the People's Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).  The Applicant arrived in Australia on 19 March 2006, having departed from Hong Kong on a subclass 676 tourist visa issued on 8 March 2006. 

3. On 12 February 2007, the Applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”).  In support of his protection visa application, the Applicant provided a statement in which he claimed to have been a Falun Gong practitioner “for a long time”.  In his statement, the Applicant asserted that he was attacked by a policeman; hospitalised with serious injuries, subsequently arrested and detained for a month. The Applicant stated that during the detention he was beaten and was released only because he “pretended to repent and never practice Falunfong (sic) again”.  The Applicant claimed to have a fear of persecution of authorities in China by reason of his Falun Gong activities. 

4. On 24 February 2007, a Delegate of the First Respondent refused the Applicant's application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations. 

5. The Delegate found that several aspects of the Applicant's claims lacked credibility and found that his claims had been fabricated insofar as he claimed to be a person targeted by the Chinese government by reason of any imputed political opinion or by reason of Falun Gong activities.  The Delegate found that the Applicant's profile indicated that he was not a person of interest to the Chinese authorities and found that the Applicant did not have a genuine fear of harm. 

6. On 26 March 2007, the Applicant lodged an application for review of the Delegate's decision with the Refugee Review Tribunal.  The Applicant provided no further information in support of his review application. 

7. On 9 May 2007, the Applicant appeared before the Tribunal where he expanded upon his claims and made further claims for the first time.  In particular, the Applicant claimed for the first time not to be the person named in the passport and that he had obtained that passport illegally in Shanghai. 

8. The Tribunal noted in its decision various exchanges it had with the Applicant about his evidence and noted, in particular, concerns it put to the Applicant about various aspects of his evidence and noted the Applicant's responses. 

9. The Tribunal found the Applicant not to be a credible witness.  In reaching that conclusion, the Tribunal had regard to the fact that the Applicant had arrived in Australia on 19 March 2006 and yet had not made an application for a protection visa until 12 February 2007; and, that it was not until the hearing before the Tribunal that the Applicant asserted for the first time that he was not the person named in the passport. 

10. The Tribunal also noted exchanges it had with the Applicant about the basic principles of Falun Gong and noted that the Applicant told the Tribunal he was not a very serious Falun Gong practitioner and, other than visiting the Parramatta Falun Gong site a few days before the hearing, the Applicant had not practiced Falun Gong in Australia.  The Tribunal found the Applicant's knowledge of Falun Gong to be insufficient to satisfy the Tribunal that the Applicant is a Falun Gong practitioner or had ever been a Falun Gong practitioner in China.  The Tribunal rejected the Applicant's claims comprehensively.  The Tribunal's decision is accurately summarised the First Respondent's written submissions in paragraphs 8 to 12.

    “8 Although the Tribunal accepted the applicant's more detailed claims as put forward at the hearing,[1] the Tribunal was unable to make any findings as to the identity of the applicant. However, the Tribunal did accept that the applicant was a national of the People's Republic of China (PRC)[2]:

    8.1 At the hearing, the applicant claimed that his true identity was Wei Wu, and that he was issued a passport in that name before acquiring the passport used to enter Australia. Notwithstanding requests made by the Tribunal, the applicant did not produce this passport. Indeed, no other documentation was provided to demonstrate his claimed true identity.

    [1] CB 77.7

    [2] CB 77.5

    9 The Tribunal held that the applicant was not a truthful or credible witness:

    9.1 The applicant did not make the PVA until 15 February 2007, and it was not until 9 May 2007 that he submitted that he was not Xiao Lin Zeng. The Tribunal raised concerns with the applicant's failure to heed requests for his 'true' passport and the fourteen months it took the applicant to reveal his 'true' identity.[3]

    [3] CB 78.5

    9.2 The Tribunal did not accept that the applicant would have experienced difficulty in leaving China under his own name if he was able to successfully obtain a passport under that name.[4] The Tribunal rejected the applicant's response to this issue.

    [4] CB 80.4

    10 The Tribunal found that the applicant was never a FG practitioner. Accordingly, the Tribunal rejected the applicant's claims of being a victim of searches, seizures and harm. Consequently, the Tribunal concluded that the applicant did not face a real chance of persecution for reasons of his practice of FG:

    10.1 The applicant incorrectly submitted that the 'crackdown' on the practice of FG occurred in 1997.

    10.2 The applicant correctly named the three primary principles of FG. In addition, he claimed to have read the primary text of FG. However, the applicant was unable to recall what he had read and was unable to adequately describe or demonstrate the exercises. Moreover, he was unable to provide information on FG philosophies.

    10.3 The applicant had only once been to a FG practice site in Australia, and only a few days before the hearing.

    10.4 The applicant submitted that authorities found a CD with the Nine Commentaries on the Communist Party after searching the applicant's house in 2001. The Tribunal rejected this submission, relying on the foreword of the English book of Commentaries to demonstrate that the first publication was not until 2004.

    11. The Tribunal concluded that the applicant did not lead the workers strike. Accordingly, the Tribunal found that the applicant was not detained and did not face a real chance of persecution for reasons of his anti-government political opinion:

    11.1 There was no credible evidence supporting the applicant's assertions relating to the strike. The Tribunal maintained that this would have received some media coverage. In addition, the Tribunal found that the applicant's claims that he was arrested six months after the event were implausible.

    12 The Tribunal did not make any findings about the death of the applicant's mother because it was not necessary to do so.”

11. The Applicant appeared unrepresented before this Court although had the assistance of an interpreter.  The Applicant confirmed that he relied on the grounds identified in the initiating application filed by him on 27 August 2007.  Those grounds are as follows:

    “1. The Refugee Review Tribunal failed to consider the whole of my case.

    2. The decisions made by the Refugee Review Tribunal is illogical.

    3. In making the decision, the Tribunal’s finding of a number of jurisdictional facts was not reasonable.”

    None of the grounds are supported by particulars and, in the circumstances, do not disclose any error capable of review by this Court. 

12. The Applicant was directed by this Court on 11 October 2007 to file an amended application giving complete particulars of each ground relied upon, any further evidence in support of his application and written submissions prior to today's hearing.  The Applicant confirmed that he has not filed any further document in accordance with those directions or in support of his application generally. 

13. Each of the grounds was interpreted for the Applicant this morning, and he was invited to make submissions in support of each of the grounds and in support of his application generally.  The Applicant made no meaningful submission in support of his application other than expressing disagreement with the findings and conclusions of the Tribunal. 

14. It was explained to the Applicant that it was not for this Court to reconsider his factual claims and make different findings or reach different conclusions.  It was explained to the Applicant that it was the role of this Court to consider whether or not the decision of the Tribunal is affected by a legal mistake that goes to its jurisdiction.  It was explained to the Applicant that disagreement with the findings and conclusions of the Tribunal is rarely such a mistake.

15. In relation to ground 1, the Applicant was unable to identify any aspect of his case that he alleged the Tribunal failed to consider.

16. In relation to ground 2, the Applicant was not able to identify any illogicality or unreasonableness in the Tribunal's decision other than his own disagreement with the Tribunal's decision. 

17. The findings of fact made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons, including the adverse credibility findings. 

18. In reaching its conclusion that the applicant does not face a real chance of persecution for reasons of Falun Gong practice and belief or anti‑government political opinion should he return to China now or in the foreseeable future, the Tribunal applied the correct law to the facts as it found them to be.

19. It is for the Applicant to satisfy the Tribunal that he meets the criteria required for being a refugee. In the event, the Applicant is unable to satisfy the Tribunal, s.65 of the Act states that the decision maker, in this case, the Tribunal, is to refuse the grant of a protection visa.

20. The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. The Tribunal's decision is not affected by jurisdictional error, and is, therefore, a privative clause decision. Accordingly, pursuant to s.474 of the Migration Act, this Court has no jurisdiction to interfere.

21. The Applicant’s proceeding before this Court is dismissed with costs. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  19 February 2008