SZLGK v Minister for Immigration - [2008] FMCA 377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 377

MIGRATION – Review of decision of RRT – illogicality – where applicant alleged he was not provided with tape of Tribunal hearing.

NATC v Minister for Immigration [2004] FCAFC 52
VWST v Minister for Immigration [2004] FCAFC 286
VTAG v Minister for Immigration [2004] FCA 447
Applicant 276 of 2002 v Minister for Immigration [2004] FCA 330
NACB v Minister for Immigration [2004] FCAFC 235

Applicant:

SZLGK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2721 of 2007

Judgment of:

Raphael FM

Hearing date:

12 March 2008

Date of Last Submission:

12 March 2008

Delivered at:

Sydney

Delivered on:

12 March 2008

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr H Bevan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant pay the First Respondent's costs assessed in the sum of $3,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2721 of 2007

SZLGK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 28 February 2007. On 26 March 2007 he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 12 April 2006 a delegate of the Minister refused to grant a protection visa. On 15 May 2007 the applicant applied to the Refugee Review Tribunal for review of that decision. The Tribunal wrote to the applicant offering him a hearing which he attended on 27 June 2007 with the aid of a Mandarin interpreter. On 6 July 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 31 July 2007.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were originally expressed by him in an annexure to his protection visa application form [CB 19]. The applicant claimed that he had become a member of Falun Gong in 1998 before it had been banned by the Chinese government. He practised it for his health and not for any reason of belief. He later became a believer and could not live without the system. He claims that he became a senior member of the Falun Gong before it was banned at the end of 1999. His adherence to the sect was discovered and he was required to attend what he described as ‘brain washing classes’ where he agreed to recant of his association with the sect. However, he did not do that. He claimed to continue to act as a senior Falun Gong member. He first visited Australia in 2006 where he made contact with some Falun Gong practitioners. When he returned to China he believed that his activities in Australia had been monitored and he was detained by the police and questioned. He bribed an official to secure his release. He made arrangements to come to Australia again and after his arrival claimed protection.
The Tribunal questioned the applicant upon his travel arrangements and upon the statement that he had given. He questioned him concerning his activities once he arrived in Australia where he said that he had taken part in two events associated with Falun Gong practitioners. The Tribunal questioned the applicant about the Falun Gong beliefs and exercises and about the detention and beatings up that he claimed had occurred to him at the end of 1999. The Tribunal also asked him about what had occurred after his return to Australia in 2006.
In its findings and reasons the Tribunal indicated that the applicant showed some knowledge of Falun Gong but had made some elementary mistakes in response to simple questions. It indicated at [CB 77]:
“After careful consideration of the evidence cumulatively, the Tribunal does not accept that the applicant is a Falun Gong practitioner; or that he has any association with the Falun Gong movement; or that he will be perceived as such by anyone. The Tribunal finds that he has fabricated this claim to establish a basis for refugee status”.
The Tribunal based this statement on the responses which it had received from the applicant, which it described as indicating a lack of confidence when discussing Falun Gong, the unsatisfactory nature of his description of his practice and experiences in China and the descriptions given of his practice in Australia. The Tribunal pointed out a number of inconsistencies in his evidence. Particularly at [CB 78] the Tribunal registered its concern that the applicant was able to return to China after his visit to this country in 2006 where he had indicated that he had taken up with Falun Gong practitioners and concluded that he did not have a genuine fear of persecution in China in 2006 for any reason. It did not accept that the applicant was detained upon his return which was a claim that was at odds with other claims that he had made that the PSB had merely kept an eye on him.
The Tribunal made it clear to the applicant that it did not find him to be a credible witness [CB 79] but it ensured that it considered the possibility of him being persecuted upon his return. It found:
“His attendances at the 2 events was for the purpose of gathering evidence for his application and places no weight on his conduct as evidence of a commitment to Falun Gong or a political opinion. The Tribunal does not accept that he would come to the attention of Chinese authorities for reasons of his religion, membership of a particular social group or political opinion or imputed political opinion.”
In his application to this court the applicant sets out seven grounds. The first is a statement that if he returns to China he will suffer persecution within the meaning of the Refugees Convention. The second indicates that the Tribunal failed to understand his claims and then gives a quotation from part of the Tribunal's reasons after saying that further particulars will be provided of this ground. No such particulars have been provided and I am unaware of what additional material might be in the applicant's possession. If it was the photographs which he attempted to tender to the court today then this is just additional evidence, not before the Tribunal, with which the court is unable to deal.
The third ground states that the Tribunal failed to comply with its obligations under s424A without advising the court what the information was with which he should have been provided. The fourth ground repeats that the Tribunal failed to understand his claims and consider relevant matters and that further particulars were to be provided. Once again these have not been given to the court. The fifth ground indicates that the Tribunal failed to grant the protection visa without any proper grounds or proper investigation. It seems to me that the Tribunal's decision indicates that it went into considerable detail with the applicant about his claims and investigated them thoroughly. The sixth ground constitutes a hope that the applicant will be protected. It is not an indication of any jurisdictional error. Finally, the applicant says that the decision made by the Tribunal is illogical. No particulars of this ground are provided and it is to be recalled that in NATC v Minister for Immigration [2004] FCAFC 52 at [27] the Full Bench said:
“Opinions can vary about what is inherently improbable or unacceptable as evidence of a fact or of what evidence "makes sense" that is whether evidence is probative in relation to a particular fact. In the absence of perversity or some manifest error sufficient to give rise to some jurisdictional error, the Court cannot intervene.”
In VWST v Minister for Immigration [2004] FCAFC 286 the Full Bench said at [18]:
“...Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review.”
Again, Weinberg J in VTAG v Minister for Immigration [2004] FCA 447 at [58] said:
“Even if the Tribunal's reasons contain conclusions that were illogical that would, not of itself, amount to jurisdictional error.”
This view was supported by Jacobson J in Applicant 276 of 2002 v Minister for Immigration [2004] FCA 330 at [32] and in NACB v Minister for Immigration [2004] FCAFC 235 at [29].”
Faced with this weight of authority and the lack of any particulars of such illogicality the court is unable to assist the applicant in regard to this ground.
When the applicant appeared before me today he stated that he had not been provided with a copy of the recording tape of the hearing before the Tribunal. There is no statutory requirement for this tape to be provided to him although I acknowledge that it is generally done when requested and sometimes when not requested. I am of the view that the applicant is too late in the day to raise this as a ground for adjourning the application (it could not possibly constitute a jurisdictional error) because he has had over nine months since the decision was handed down to make requests for the tape and does not appear to have done so.
The applicant also had the benefit of advice from a panel advisor under the Minister's scheme. Mr Bevan who appears on behalf of the Minister tells me that pursuant to a request from the panel advisor the tapes were provided and that he has correspondence to that effect, which I have not requested him to tender as I do not think that it really takes the matter very much further. In any event there was no request from the applicant that was not responded to so far as he is aware.
In all the circumstances I am unable to find any ground upon which this Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the first respondent's costs assessed in the sum of $3,750.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: