SZLOU v Minister for Immigration
[2008] FMCA 1052
•17 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1052 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of s.424A proved – Tribunal’s conclusions are not information as that term is understood by s.424A – no breach of s.425 proved – under s.425 Tribunal’s doubts were not required to be notified to the applicant – allegation of poor interpreter services at Tribunal hearing not proved. |
| Migration Act 1958, ss.424A, 425 |
| SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 |
| Applicant: | SZLOU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3396 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 July 2008 |
| Date of Last Submission: | 17 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3396 of 2007
| SZLOU |
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 practised Falun Gong and was subsequently arrested and forced to confess.
The applicant arrived in Australia on 16 April 2007.
The applicant claims to fear persecution in China on the basis that she was a Falun Gong practitioner.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 19 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.
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 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 79 – 85). Relevantly, they are in summary:
Protection visa application
In her protection visa application, the applicant claimed that:
a)she first came to know of Falun Gong in 1996. She practised Falun Dafa in a small park and also introduced others to Falun Gong;
b)in October 1999, the applicant and almost every group leader in her region was taken to the police station and questioned. The police asked the applicant to confess and, when she refused, they locked her up. She was released after she wrote a confession;
c)her house was searched and all Falun Gong related documentation was confiscated. She was asked to provide a list of names of Falun Gong members but could not do it and was released after she wrote another confession;
d)in October 2002, she started her own business. When people came to her shop, she would sometimes talk to them about Falun Gong; and
e)a few days after New Year’s Day 2007 a new “regional officer” came to her shop and asked her to provide a list of names of her former group members. She was given a few days to think about it and it was at this point that she decided to flee to Australia.
Application for review
With her review application the applicant submitted a further statement of claims dated 15 June 2007 which contained an additional claim of having practised Falun Gong in Australia. I note in passing that this was subsequently contradicted by her evidence at the Tribunal hearing.
Tribunal hearing
At the hearing on 23 August 2007, the applicant claimed, that:
a)she started practising Falun Gong in December 1996. She sat in the park and studied the materials with other people;
b)she did not learn the exercises and just observed others;
c)she variously stated that she practised Falun Gong:
i)at first every morning, but after her home was searched in October 1999 she was too scared to go;
ii)at first, five to six times a week and later once or twice a week;
iii)sometimes once or twice a year; and
iv)sometimes once or twice a month;
d)between the end of 1997 and the early part of 1998, the police searched her house once but often came to give her warnings;
e)she had in her home a list of Falun Gong practitioners as well as Falun Gong DVDs and videos. The police searched her home for Falun Gong materials but did not find any. She later stated that in 1997/1998, the police found DVDs in her home;
f)she never read any books on Falun Gong but only watched the videos;
g)after the October 1999 incident, the applicant was not approached by the police again until 2006 when she opened her beauty salon;
h)when she opened her salon in 2002, Falun Gong practitioners would get together in the salon and talk about the benefits of Falun Gong. The applicant and two to three of her friends would also meet once or twice a month to speak about Falun Gong but they never practised the exercises. She did this up until she left China in 2007; and
i)although she has been in contact with other Falun Gong practitioners, she has not practised Falun Gong in Australia because she spent a lot of money to come here and wants to use her time to work.
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 found that the applicant was not a credible witness or a genuine Falun Gong practitioner, noting that:
a)her evidence about how frequently she practised Falun Gong changed on a number of occasions and it required much questioning on the part of the Tribunal to determine how frequently she practised at different times. The Tribunal was of the view that if the applicant genuinely practised Falun Gong she would be able to tell the Tribunal, without constantly revising her evidence, how frequently she practised. The Tribunal concluded that the applicant was not sure of her evidence because she was not speaking from personal experience;
b)on a number of occasions, the Tribunal asked the applicant a specific question, yet the applicant provided a response which did not appear to answer the question. The way in which the applicant required constant prompting in order to answer the Tribunal’s questions in a meaningful way led the Tribunal to doubt that the applicant was talking from personal experience;
c)the Tribunal found it implausible that a genuine practitioner would simply observe others over an extended period and never learn the Falun Gong exercises;
d)the applicant told the Tribunal that while she had made contact with Falun Gong practitioners in Australia, she did not practise Falun Gong in Australia because she preferred to work. The Tribunal found that if the applicant was a genuine Falun Gong practitioner, she would have taken the opportunity to practise in Australia where she is free to do so; and
e)she displayed a complete lack of knowledge about even the most basic aspects of Falun Gong and it was not plausible that a genuine practitioner would not have read any books on the teachings of Falun Gong.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
(2)The Tribunal failed to comply with its obligations under s.425 of the Act.
Failure to comply with s.424A
The first ground of review is supported by three particulars which relate to the applicant’s inability to answer the Tribunal’s questions to its satisfaction and its consequential conclusion that her allegations were not credible. The applicant asserts that the Tribunal should have served a s.424A(1) notice on her which dealt with these matters. However, the evidence which the applicant gave the Tribunal is information falling within the exception to s.424A(1) found in s.424A(3)(b) and did not need to be notified to her. To the extent that it is relevant, independent country information which the Tribunal sources is also information which is not required to be notified to the applicant by reason of s.424A(3)(b). Further, the Tribunal’s conclusions drawn from the material before it are not information, as that term is understood by s.424A: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190.
Consequently, the first ground pleaded in the application does not disclose jurisdictional error on the part of the Tribunal.
Failure to comply with s.425
The allegation that the Tribunal breached its obligations under s.425 is particularised in the following terms:
a)The Tribunal failed to provide me a genuine opportunity to present my oral evidence in support of my claims and to present my argument against the issues arising in the review; because the interpreter was unable to translate particular terms of Falun Gong. Significant evidence was that the interpreter cannot translate “xinxing” correctly so that I was unable to understand the Tribunal’s question.
The relevant passage from the Tribunal's decision record is as follows:
Asked whether she knew anything about the third eye the applicant replied that she did not understand and that she had never heard of it. Asked if she had ever heard of “xinxing”, the applicant replied that she had not. Asked if she knew anything about the 5 exercises, the applicant replied that she had never practised the exercises in China and that they were only sitting there. (CB 84–85)
In her submissions today, the applicant expanded on the particulars set out in her application and asserted that there were many occasions when the Tribunal’s interpreter could not translate Falun Gong terms accurately.
The fact that the Tribunal’s interpreter failed to translate xinxing or any other Falun Gong term correctly is, without evidence, only an unsubstantiated assertion. As an allegation made by her, the assertion concerning the Tribunal’s interpreter is a matter for the applicant to prove. However, she has led no evidence on the point, notwithstanding the direction made when the matter was first before the Court on
26 November 2007 that any party wishing to rely on the evidence of a Refugee Review Tribunal hearing was to file and serve a copy of the transcript of that hearing annexed to an affidavit seven days before the hearing.
Without evidence, the applicant has not discharged her burden of proof and I find that her allegation concerning the inadequacy of interpreter services at the Tribunal hearing is not proven.
Additionally, today the applicant said that the Tribunal breached s.425 because it did not notify to her the doubts which it had concerning her case so that she could address them. However, as the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 at 523 [48]:
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.
Consequently, the matter raised by the applicant today in her submissions on this aspect of the Tribunal’s conduct does not disclose jurisdictional error on its part.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated and the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 July 2008
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