SZLGZ v Minister for Immigration - [2008] FMCA 677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGZ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 677

MIGRATION – Application for review of decision of Refugee Review Tribunal – application dismissed.

Migration Act 1958 (Cth) s.91R

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129

Applicant:

SZLGZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2740 of 2007

Judgment of:

Barnes FM

Hearing date:

21 May 2008

Delivered at:

Sydney

Delivered on:

21 May 2008

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $2,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2740 of 2007

SZLGZ

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 31 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 and applied for a protection visa in January 2007. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
The applicant's written claims made in connection with his protection visa application and his oral claims made at the Tribunal hearing (conducted with the assistance of an interpreter in Mandarin) were summarised by the Tribunal in its findings and reasons.
The applicant claimed in essence to fear persecution in China by reason of having been a Falun Gong practitioner. He claimed that he had commenced practising Falun Gong in 1996 and that in 2002 he had been detained by the authorities and sentenced to six months labour education, during which time he was beaten and tortured. He claimed that after he was released he was required to report weekly to the local police station.
In its findings and reasons the Tribunal referred to country information in relation to the practise of Falun Gong and Falun Gong exercises. It found that the applicant did not know how many Falun Gong exercises there were and was unable to name any. More importantly he was unable to demonstrate any of the Falun Gong exercises. It stated:
The only exercise he claimed to know at the hearing was confined to sitting cross legged. The applicant explained his inability to demonstrate any of Falun Gong exercises by stating that he was only a beginner. The Tribunal finds this explanation unsatisfactory. The Tribunal considers it reasonable to expect the applicant to have at least some knowledge of Falun Gong exercises if he was a practitioner in China since 1996 as he claimed at the hearing. The applicant's near complete ignorance of Falun Gong exercises leads the Tribunal to find that he was not a Falun Gong practitioner in China as he claims. As the Tribunal has found that the applicant was not a Falun Gong practitioner in China, the Tribunal does not accept that he was detained, mistreated and required to report regularly to the authorities following his release for the reasons he has provided.
The Tribunal also addressed the applicant's claims in relation to his activities in Australia. It observed that when asked if he practised in Australia he had said: "not very long", because he “practised by himself everyday mornings and evening” and that while he did know other people who practised “they lived far away and he could not practise with them”.
The Tribunal found that having regard to the applicant's oral evidence and the impression it had formed of his overall credibility it was not satisfied he had been practising Falun Gong privately in Australia as claimed at the hearing. However it went on to address this claim on the basis that if it were to accept that the applicant had shown interest in Falun Gong in Australia or had practised by himself it was of the view that his conduct had been designed to assist him in his endeavour to remain in Australia by strengthening his claims for his protection visa application. It found that such conduct must be disregarded pursuant to s.91R(3) of the Migration Act 1958 (Cth).
The Tribunal summarised its conclusions that it did not accept that the applicant practised Falun Gong in China, that he was detained, mistreated or that he was of any interest to the Chinese authorities for the reasons he had provided. It disregarded his Falun Gong related conduct, if any, in Australia and did not accept that he would be of any adverse interest to the Chinese authorities for reason of his religion, political opinion or membership of a particular social group. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in China.
The applicant sought review by application filed in this Court on 5 September 2007. He did not file written submissions. He confirmed in the hearing today that he relies on the grounds in that application. He was given the opportunity to make oral submissions.
The first ground in the application is that “The decision involved an error of law in that: There was no evidence or other material to justify the making of the decision”. The applicant did not take the opportunity to elaborate on this ground. It has not been established that there was a jurisdictional error in the manner contended for in ground one.
It cannot be said that there was no evidence or no probative evidence before the Tribunal to justify the making of the decision. The Tribunal rejected the applicant's claims, in particular in to have practised Falun Gong for some nine years, based on his lack of knowledge and his inability to demonstrate knowledge of Falun Gong exercises. It did not accept his explanation that he was only a beginner, considering it reasonable to expect him to have at least some knowledge of Falun Gong exercises if he had been a practitioner in China since 1996.
The Tribunal's findings as to the credibility of the applicant's claims were open to it on the material before it for the reasons that it gave. (See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]). The applicant's lack of knowledge of Falun Gong provided a rational basis for assessing his claims in the sense discussed in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].
The second ground is “In paragraph six of page six of the Refugee Review Tribunal decision record, the Tribunal member does not accept that I practised Falun Gong in China. I do not think that the Tribunal member can make such a judgment without any further investigation”.
It is well established that it is for an applicant to put his case to the Tribunal. There is nothing in the circumstances of this case to indicate the Tribunal was bound to inquire or to make the applicant's case for him. It is not a case in which there is any indication that the Tribunal undertook to make inquiries. Nor is it apparent that there was readily obtainable material available which it would be reasonable for the Tribunal to investigate or obtain.
The Tribunal questioned the applicant at the hearing. It recorded that at the conclusion of the hearing it asked the applicant if there was anything else he wanted to put to it and he said that everything he had said was true. It is apparent from the Tribunal reasons for decision that it considered the applicant's claims. It was not required to investigate the genuineness of his claims beyond this. Insofar as the applicant seeks merits review, merits review is not available in this Court.
The third ground is a statement by the applicant that he believes he will be “prosecuted” if he returns to China. This ground does not establish jurisdictional error, but seeks impermissible merits review.
In oral submissions today the applicant asked, perhaps rhetorically, why his application was refused. He then explained that his contention was that he was misunderstood at the hearing and that he was not given the opportunity to explain further. He later suggested that when asked about the five Falun Gong exercises he had not explained himself clearly and he was not given a further chance to make himself clear.
Such contentions take issue with the conduct of the Tribunal hearing. The evidentiary basis for such claim is not made out in the absence of a transcript of the Tribunal hearing. In any event the applicant's contentions are contrary to the Tribunal account of what occurred in the Tribunal hearing. It is apparent from the Tribunal reasons for decision that, rather than the refusal being based simply on the fact that the applicant did not perform one exercise correctly, the Tribunal fount that the knowledge the applicant demonstrated indicated a “near complete ignorance” of Falun Gong exercises. It had regard to the fact that not only did the applicant not know how many exercises there were, but also that he was unable to name any and was unable to demonstrate any of the Falun Gong exercises.
Insofar as the applicant claims that he was not given an opportunity to explain further this is also contrary to the statement by the Tribunal that in the hearing it asked the applicant if there was anything else he wanted to put to it. In that way the Tribunal gave the applicant an opportunity to clarify in any way his explanations or to explain further his inability to provide a demonstration of the exercises. I also note that the Tribunal recorded that when he was asked to perform the third exercise the applicant had said he could not remember it because he was too nervous. The Tribunal took that into account and asked him to show it one of the exercises. It was at that point that the applicant said that he was just a beginner and said he knew only the basics and that involved sitting cross-legged.
On the material before the Court the contentions raised by the applicant do not establish jurisdictional error on the part of the Tribunal. Insofar as he reiterated that he had told the truth and took issue with the Tribunal's factual conclusions he seeks merits review. As I explained to him, merits review is not available in this Court.
As no jurisdictional error has been establish the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. There is nothing in the circumstances of this case that warrants a departure from the normal rule that an unsuccessful applicant should meet the costs of the respondent. The first respondent seeks costs in the sum of $2,250. That is at the lower end of the scale of costs normally awarded in matters of this nature. I consider it is an appropriate amount. The applicant claimed that he thought that his case was proper, that he had a right to review and indicated that he refused to pay. The fact that an applicant may seek judicial review and that he has what he regards as a proper case does not establish that he should not meet the costs of the other party should he ultimately be unsuccessful. I consider it is appropriate to make the orders sought by the first respondent.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 29 May 2008