SZLIY v Minister for Immigration
[2008] FMCA 499
•14 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 499 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no lack of procedural fairness demonstrated – no s.424A(1) notice required in the circumstances – merits review not available in judicial review proceedings – fact finding is a matter for the Tribunal not the Court. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLIY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2923 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 April 2008 |
| Date of Last Submission: | 14 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $1,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2923 of 2007
| SZLIY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a Falun Gong practitioner. She alleges that while in China she was arrested because of her Falun Gong practices but was subsequently released through her connections. The applicant left China for Australia where, she alleges, she has continued to practise Falun Gong.
The applicant claims to fear persecution in China because of her adherence to Falun Gong.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 24 March 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 46 – 49). Relevantly, they are in summary:
Protection visa application
In a statement attached to the protection visa application which the Tribunal describes as being dated 11 January 2006, the applicant claimed that:
a)she became aware of Falun Gong many years ago and has practised it for a long period;
b)she practised Falun Gong secretly after the organisation was made illegal in 1999. One day while she and others were practising Falun Gong, policemen came to arrest them and many were put into cars and later sent to prison. The applicant escaped with the help of friends;
c)she had a good relationship with the local government and the local police leader was her friend so no one put her in gaol but she was warned not to practise Falun Gong;
d)her husband left her because he could not tolerate living in fear any longer;
e)in October 2006 the local police leader retired and the new leader did not know her. She heard from a friend that the police were collecting information to show that she was a Falun Gong practitioner and she did not know what would happen to her in the future; and
f)she was scared and managed to leave China for Australia.
Tribunal hearing
At the hearing before the Tribunal on 8 June 2007, the applicant made the following additional claims:
a)she commenced practising Falun Gong in 1996 and practised with small groups of 10 to 20 people, sometimes more;
b)in 2000 she was arrested whilst practising Falun Gong privately at home and was released through her connections. She was monitored by the police and was told that they could come at any time;
c)after her arrest she dared not live at home. She moved every 6 or 12 months to avoid being arrested;
d)her husband wanted a divorce because the police went to her home every day or every now and then;
e)she worked in a factory from 1994 to 1999 but she could not work from that point on and just went to other places. She variously stated that the dates she provided at the hearing with respect to her work history at the factory were inconsistent with what was written in her visa application because:
i)the student who helped her complete the application was not told all the details;
ii)the space on the form was small; and
iii)there were translation problems;
f)she paid 30,000RMB to the person who helped her to get her passport; and
g)she practises Falun Gong at Darling Harbour every Saturday and Sunday morning and has done so since she arrived but later stated that she had been practising at Darling Harbour for only the previous two months.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner, noting that:
i)she was unable to demonstrate in full the first, third and fifth exercises;
ii)a genuine Falun Gong practitioner of some 10 years’ standing could be expected to know and be able to demonstrate all five Falun Gong exercises, particularly if they had been practising in Australia for the last two months as the applicant claimed;
iii)she was unable to explain what Falun Gong’s moral code meant to her;
iv)she was unable to explain what it means to practise Falun Gong apart from stating that in the beginning she practised because she just wanted to improve her health;
v)she had only a rudimentary understanding of the concept or meaning of the falun; and
vi)she said that she had a copy of Zhuan Falun but had so little knowledge of this book that her ignorance indicated that she was not a Falun Gong practitioner;
b)the Tribunal found that the applicant’s understanding of Falun Gong was extremely limited and inconsistent with her claim to have practised Falun Gong for some 10 years;
c)the Tribunal concluded that she had learned some basic information about Falun Gong for the purpose of providing evidence at the Tribunal hearing;
d)the Tribunal did not accept that the applicant:
i)was detained or questioned in China as a result of practising Falun Gong;
ii)was unable to live at home after she was detained;
iii)had to move constantly to avoid detection, was constantly monitored and was unable to be employed;
iv)obtained her passport through the payment of 30,000RMB, concluding that there was no reason for her to have done so;
v)suffered harm in China as a result of being a Falun Gong practitioner; or
vi)would practise Falun Gong upon her return to China.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1) Jurisdictional error has bee [sic] made.
(2) Procedural Fairness has been denied.
(3) RRT did not give me letter to explain doubts.
In her oral submissions today the applicant further submitted that the Tribunal had denied her an opportunity to put further material before it and she repeated her claim to be a Falun Gong practitioner. Regarding that latter point, the applicant is in essence seeking to challenge the Tribunal’s conclusion as to the merits of her review application.
None of the grounds which the applicant raised, either in her written application or in oral submissions today, is particularised in any way which gives them any material substance.
First and second pleaded grounds
The first and second pleaded grounds of review are, as the Minister has submitted today, generic in nature and, as has already been noted, are unilluminated by particulars. In relation to the matters which those two grounds might raise it should be observed that the Tribunal concluded that the evidence adduced by the applicant did not substantiate her claims. This was a finding logically open to the Tribunal and does not disclose error on its part. The Tribunal understood the test which it had to apply as pp.2 – 4 of its decision discloses, however, the Tribunal never needed to consider the application of the relevant test because the account given by the applicant was disbelieved.
The Tribunal’s procedures disclose no breach of the natural justice hearing rule codified by s.422B of the Act.
The Tribunal’s decision is expressly based on the applicant’s evidence at the hearing and it is also apparent that the Tribunal took into account country information. Evidence given by an applicant at the hearing and the material contained in country information fall within the exclusions found in s.424A(3), with the consequence that no s.424A(1) obligations arose in this case. There has been no breach by the Tribunal of its obligations under that section.
Further, the conduct of the hearing as disclosed by the Tribunal’s decision record indicates that the Tribunal’s various obligations under s.425 of the Act were satisfied. It is apparent that the applicant was given every opportunity to give the evidence and make the submissions which she wished to make during the course of the Tribunal hearing. Indeed, at p.7 of its decision, the Tribunal says this:
When asked whether there was anything further she would like to add, the applicant indicated that she would like to work and get a job in Australia. (CB 49)
As to whether the applicant was properly put on notice of the issues arising in relation to the decision under review, it should be noted that the delegate rejected the claim on credibility grounds and so did the Tribunal. Clearly, the applicant’s claim in its entirety was in issue from the start and this reality is demonstrated by the various testing questions which were put to the applicant by the Tribunal as recorded in its decision. Consequently, I am of the view that no breach of the Tribunal’s s.425 obligations has been made out or is disclosed.
No other potential breaches of those sections found in div.4 of p.7 of the Act is apparent and I conclude that procedural fairness has not been denied to the applicant and that no jurisdictional error was made by the Tribunal in that connection.
It should also be noted before passing from the first two asserted grounds of review that the applicant has made no suggestion of bias on the part of the Tribunal and that there is nothing in the evidence which would lend support to any such allegation were it to have been made.
Third pleaded ground
As to the third pleaded ground of review on which the applicant expanded in her oral submissions today, she has said that the Tribunal should have put her on notice of the doubts which it had and it should have given her an opportunity to put further material before it by sending her a letter “to explain doubts”. The doubts which the Tribunal might have had in relation to the veracity of the applicant’s claims are not “information” as that term is understood by s.424A. As a result, the Tribunal was under no obligation to send a s.424A(1) notice to the applicant outlining such concerns.
The applicant phrased the next aspect of this ground in terms of being denied an opportunity to put material before the Tribunal. At the outset it appeared that this might have been a reference to the Tribunal’s s.425 obligations but when questioned by the Court the applicant made it clear that what she was really saying was that she had wanted to receive a s.424A(1) notice in order to put before the Tribunal such additional material as such a notice might have invited. However, for the reasons already given, the Tribunal was under no obligation to serve such a notice and thus the applicant was not denied an opportunity to put material before the Tribunal as she asserts.
Oral submissions
The final point, arising out of the applicant’s oral submissions today, is that she genuinely is a Falun Gong practitioner with the implication that the Tribunal arrived at an incorrect conclusion. As has already been noted in these reasons, these proceedings are not a rehearing of the applicant’s application for a protection visa.
The finding of facts in relation to a visa review application is a task reposed in the Tribunal. It is the Court’s role to determine whether the Tribunal has applied proper procedure and has applied the law correctly. As long as it has, the Tribunal is entitled to make findings of fact which are open to it on the evidence. That is what happened in this case. No jurisdictional error on the part of the Tribunal has been identified and the Court cannot make a finding on the merits of the review application at variance with that of the Tribunal.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 April 2008
0
1
1