SZLJQ v Minister for Immigration
[2008] FMCA 484
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 484 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLJQ”. |
| Migration Act 1958 (Cth), ss.91X, 414 |
| Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Re Minister for Immigration and Multicultural Affairs, Re: Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLJQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2983 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr MP Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 26 September 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2983 of 2007
| SZLJQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The female applicant is from Nei Mongol in the People’s Republic of China. She claims she was born in 1982 and speaks, reads and writes Mandarin and reads English. Prior to coming to Australia, she was a human resources assistant.
In the applicant’s evidence and submissions to the Tribunal, she claims she and her mother suffered serious harm as a result of her mother’s practice of Falun Gong. The applicant states that she is not a Falun Gong practitioner but is a believer. The applicant also claims she was sexually assaulted by a police officer over a two year period as a result of her mother’s affiliation with Falun Gong.
The applicant arrived in Australia on 3 December 2006 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 21 December 2006. A delegate of the Minister refused to grant the visa on 9 February 2007. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 1 March 2007 for a review of the delegate’s decision. On 24 August 2007 the Tribunal affirmed the delegate’s decision (reference number: 071217392), which is the decision subject to judicial review before this Court.
A Court Book (“CB”) prepared by the first respondent’s solicitors and marked Exhibit “A” is the only evidence before this court.
At the first Court date the first respondent mentioned the matter on behalf of the applicant. Orders were made setting out a timetable for the conduct of the matter. On 21 February 2008 the applicant’s solicitor filed a Notice of Withdrawal in accordance with the Federal Magistrates Court Rules 2001 (Cth). Consequently, the applicant appeared at the final hearing as a self-represented litigant assisted by a Mandarin interpreter. The applicant confirmed that she had not filed written submissions or a list of authorities in support of her application. She relied upon the original application filed by her then solicitor on 26 September 2007, which contained a single ground of review supported by two particulars.
Tribunal’s Findings and Reasons
The Tribunal invited the applicant to attend a hearing on 20 August 2007. At that hearing the applicant and her mother gave oral evidence with the assistance of an interpreter and a migration agent (CB 106). She claims she suffered harm because of her mother’s Falun Gong practice but that she was not a practitioner, only a believer. The Tribunal asked the applicant if she could do Falun Gong exercises. The applicant replied that she had observed her mother but had never learnt any as she was too busy with her studies to participate or to read any Falun Gong literature. The applicant also claims that she was sexually assaulted by a police officer over a two year period as a result of her mother’s affiliation with Falun Gong (CB 104-110). On 4 September 2007 the Tribunal handed down its decision affirming the delegate’s decision to refuse to grant the applicant a protection visa.
The Tribunal rejected the applicant’s claim that she and her mother suffered serious harm as a result of the mother’s practice of Falun Gong. While appreciating that the applicant was not claiming to be a Falun Gong practitioner, the Tribunal rejected her claim to be a Falun Gong believer. First, because of her fundamental lack of knowledge and understanding of basic Falun Gong facts. Secondly, because such a lack of knowledge was incommensurate with her claim that her mother had been an active practitioner since 2000 and that she was a believer in the Falun Gong philosophy.
The Tribunal analysed the evidence of the applicant and her mother (CB 113-116). Specifically, the Tribunal did not accept that:
a)The applicant’s mother ever practiced Falun Gong.
b)The applicant was a believer of Falun Gong philosophy.
c)The applicant’s mother had ever come to the attention of the authorities.
d)The applicant’s mother had ever been detained or questioned by the authorities.
e)The applicant was ever physically or sexually assaulted by any police officer.
f)The applicant had been blacklisted by the authorities.
Based on the credibility concerns of both the applicant and her mother, the Tribunal found neither had suffered any of the claimed harm nor that there was a real chance of such harm occurring in the reasonably foreseeable future.
Consideration
Ground one
1. The decision was made without jurisdiction or is affected by an error of jurisdiction.
Particulars
(i) The Tribunal failed to take relevant considerations into account in that it failed to determine the claim of the applicant; not that her mother was a member of Falun Gong but rather that her mother was wrongly perceived by the authorities to be such a member and that the applicant’s suffering was the direct result of the authorities persecuting her because she was a member of the family of her mother who was adversely regarded by the authorities because they wrongly perceived the mother to be politically and /or religiously active in a manner they were not prepared to tolerate.
(ii) The Tribunal took irrelevant considerations into account in that it determined the applicant’s claim not on the basis that her mother was wrongly perceived by the authorities to be a member of Falun Gong but on the basis that the claims was that she was such a member. The Tribunal then went on to use its misunderstanding of the claim as a basis for fact findings adverse to the applicant.
As indicated above, when the applicant was invited to make oral submissions she did not address the ground of review in the original application but instead repeated her physical and sexual abuse claims.
The particulars listed in ground one suggest that the Tribunal misunderstood the applicant’s claims in relation to her mother’s association with Falun Gong. The applicant here asserts that her mother was not a member of Falun Gong but rather that she was wrongly perceived to be a member by the authorities. Mr Cleary, for the first respondent, submits that this assertion is contrary to the evidence given by both the applicant and her mother at the Tribunal hearing. At the hearing the applicant gave evidence that her mother was a Falun Gong practitioner but not a member. The applicant gave evidence that her mother started practising Falun Gong in 2000 after being introduced to the practice by the applicant’s aunt.
In the written submissions prepared by the applicant’s agent, and provided to the Tribunal dated 14 August 2007, the applicant asserts that while her mother was not a Falun Gong member in any real sense, she adopted the exercise regime to improve her health and for welfare reasons (CB 105). Mr. Cleary submits that at the Tribunal hearing the applicant gave evidence that her mother practised Falun Gong and answered certain questions relating to that practice. The applicant made a claim based on the assertion her mother was a Falun Gong practitioner, and the Tribunal made findings based upon that claim. The Tribunal did not believe that the applicant’s mother had ever been a practitioner of Falun Gong. Conversely, the Tribunal did not make any finding about the applicant’s mother being a member of Falun Gong because no such claim was ever made.
I agree with Mr Cleary’s submission that the finding in respect of the applicant’s mother’s practitioner status was open to it on the material before it and the absence of any finding about her being a member was because this claim was not raised. Contrary to the applicant’s assertion, the Tribunal did not misunderstand the claim made by the applicant as the decision clearly referred to and dealt with it. It is submitted that the decision does not contain an error of the type identified by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244. Nor was there any constructive failure to exercise jurisdiction.
Mr Cleary submits that the Tribunal decision was based on the applicant’s credibility which is a factual finding open to the Tribunal and not reviewable in this Court: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407. In Durairajasingham at [67], McHugh J states:
In any event, the reason for disbelief is apparent in this case from the use of the word ‘implausible’. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
In the matter before this Court, the Tribunal identified nine separate issues in its Findings and Reasons as plausibility or credibility issues. The Tribunal notes:
Whilst the Tribunal appreciates some of the matters noted above might appear to be minor, when considered cumulatively, they are legitimate matters to be taken into account in assessing the applicant’s claims (CB 115.5).
Although the applicant appeared as a self-represented litigant at the hearing the application in this matter was prepared by a legally qualified practitioner who had a copy of the Tribunal’s decision. Subsequent to the application being filed, a Court Book was prepared and provided to that practitioner for review. The applicant was given leave to file an amended application if she elected to do so. I note that the solicitor only withdrew from this matter shortly before the final hearing. Up to that stage, the applicant did not file an amended application after considering the contents of the Court Book.
I am also satisfied that the Tribunal has acted in accordance with its obligation under s.414 of the Migration Act 1958 (Cth) and considered the claims made by the applicant and placed before it. The single ground of review identified in the application does not identify any jurisdictional error and the application cannot be sustained. Consequently, the application should be dismissed with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
24 April 2008
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