SZLKU v Minister for Immigration
[2008] FMCA 403
•25 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLKU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 403 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – Tribunal not obliged to make inquiries. |
| Migration Act 1958, ss.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLKU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3050 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 25 March 2008 |
| Date of Last Submission: | 25 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 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 $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3050 of 2007
| SZLKU |
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, he claims, he was a Falun Gong practitioner. He alleges that while in China he practised Falun Gong and that this subsequently led to him being subject to police violence and not allowed to work. The applicant arrived in Australia on 21 March 2007.
The applicant claims to fear persecution in China because of his practice of Falun Gong.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 16 May 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 2 – 3 and 6 – 9 of the Tribunal’s decision (Court Book (“CB”) pages 97 – 98 and 101 – 104). Relevantly, they are as follows:
Protection visa application
In the applicant’s protection visa application form, he made the following claims:
a)he was a Falun Gong practitioner;
b)Falun Gong was prohibited by the Chinese government and the applicant was forced to give it up;
c)he was subjected to violence by the Chinese police;
d)he was not allowed to work;
e)he was prevented from pursuing his business;
f)if he returned to China, he would:
i)be forced to give up Falun Gong;
ii)suffer a lot of pain; and
iii)be arrested by the Chinese police without any reason; and
g)the Chinese authorities would not protect him as he would be persecuted by the Chinese government.
Tribunal hearing
At the Tribunal hearing, the applicant made the following additional claims:
a)he had practised Falun Gong for about 10 months before he left China but first got involved with Falun Gong in about February 2006;
b)he used to practise at home secretly. He could not practise in public because of the restrictions against Falun Gong practitioners;
c)he read some books on the organisation and later found other practitioners who showed him how to practise Falun Gong; and
d)the person who introduced the applicant to Falun Gong has been arrested.
The Tribunal observed that the applicant was not able to remember the five Falun Gong exercises, claiming to be too stressed to answer the question or remember the names. The Tribunal also recorded that the applicant was unable to explain the significance of the wheel in Falun Gong belief.
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 found that the applicant’s claim that he was a member of the Falun Gong movement was far from credible and had to be rejected, noting that:
i)the applicant did not present any information, such as testimonials from fellow practitioners, to corroborate his claims;
ii)he did not give credible answers to the Tribunal’s questions about the beliefs, principles and practices of the Falun Gong movement;
iii)he was unable to name the five Falun Gong exercises or say what they were;
iv)he was unable to explain the significance of the wheel to the Falun Gong movement;
v)the applicant did not present himself as someone who had joined the organisation since arriving in Australia;
vi)he did not provide the Tribunal with anything except bare claims; and
vii)the applicant himself did not claim that he himself was ever subject to persecution in China.
Proceedings in this Court
The grounds of the application were as follows:
1. I was tortured and prosecuted [sic] by my original government because I belong to a particular group – Falun Gong.
2. I face a risk of being jailed [sic] if I go back to my original country.
3. The Refugee Review Tribunal should consider my application for a protection visa in my favor [sic].
In his oral submissions today the applicant advanced another ground, namely, an assertion that the Tribunal had not assessed his claim fairly.
Dealing with each of these grounds in turn:
I was tortured and prosecuted/persecuted
The matters raised in the first asserted ground of review contained in the application to this Court were not advanced as part of the applicant’s claim to the Minister’s department or the Tribunal. In this regard, I take the word “prosecuted” in this ground to mean either prosecuted in a criminal sense or persecuted in a Convention sense.
What the applicant said is recorded at p.2 of the Tribunal’s decision:
I am suffering a lot of violence by the Chinese police. I am not allowed to work. They stopped me doing my business.
Neither there nor elsewhere did the applicant claim that he was tortured or prosecuted by the Chinese authorities.
To the extent that the applicant asserts that this conduct amounted to persecution, what this asserted ground of review invites the Court to do is to arrive at a conclusion on the facts different to the one which was reached by the Tribunal, namely, whether he had a well founded fear of persecution for a Convention reason or whether he had, in fact, been persecuted while he was in China.
The role of the Court is not to undertake a further review of the applicant’s application for a protection visa. The Court’s role is to determine whether the Tribunal applied the law correctly and whether it applied correct procedures. As long as the Tribunal did so, its findings on the facts cannot be disturbed by this Court. It is only in very rare circumstances, such as errors concerning jurisdictional facts, that the Tribunal’s fact finding can be reviewed by the Court. Consequently, the first ground of review does not disclose any jurisdictional error which might form the basis of an order setting aside the Tribunal’s decision.
I face a risk of being gaoled
The second ground of review contained in the application to this Court also invites the Court to arrive at a factual conclusion different from the Tribunal’s. For the reasons already given in connection with the first asserted ground of review, this ground cannot succeed.
The Tribunal should consider my application for a protection visa in my favour
The third ground of review contained in the application to this Court suggests what the Tribunal ought to do if the application to this Court for judicial review is successful. It is not in itself a ground of judicial review. As such, it does not disclose and cannot disclose jurisdictional error on the part of the Tribunal.
Tribunal did not assess my claim fairly
In his oral submissions today, the applicant gave some substance to his allegation that the Tribunal did not “assess” his claim fairly by saying:
a)all his claims were true and that nothing was untrue;
b)the Tribunal had assessed his review application casually; and
c)his claim warranted careful examination with more careful investigations.
The first of these elements is another attempt at a review of the facts found by the Tribunal and cannot support a finding of jurisdictional error.
The second element, that the Tribunal assessed the review application casually, suggests that the Tribunal failed to exercise its jurisdiction by not considering properly the issues and materials before it. On the facts, this assertion cannot be made out. A review of the Tribunal’s decision record reveals that it accurately identified the issues which the applicant’s review application presented. It identified the facts which the applicant advanced in support of his claim for a protection visa and it also correctly identified and discussed the relevant law. The Tribunal properly and carefully considered all these elements to arrive at a conclusion which was logical and open to it. I cannot conclude that the Tribunal approached its task casually or with anything other than appropriate care.
The third element advanced in support of this ground suggests that the Tribunal should have done more than it did when considering the applicant’s review application. This element implies that the Tribunal should have undertaken particular inquiries or generally set about some careful investigation. However, that is not the role of the Tribunal. Although the Tribunal may seek out evidence, it is under no obligation to do so. The fact that it did not do so in this case, other than in respect of independent country information, does not in the circumstances of this case disclose any error on its part. It was for the applicant to put before the Tribunal such evidence and arguments as may have led the Tribunal to be satisfied in accordance with the tests contained in the Act that the applicant met the criteria for a protection visa. If the applicant did not put evidence and arguments of that weight and substance before the Tribunal, he cannot complain that the Tribunal did not do something which he himself did not do.
Conclusion
For these reasons jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, 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: 10 April 2008
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