SZLPQ v Minister for Immigration
[2008] FMCA 948
•17 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 948 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – jurisdictional error not demonstrated – lack of procedural fairness not demonstrated – merits review not available in judicial review proceedings. |
| Migration Act 1958, ss.422B, 424A, 425, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLPQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3454 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 July 2008 |
| Date of Last Submission: | 7 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3454 of 2007
| SZLPQ |
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 stood guard while others practised Falun Gong and that this subsequently led to him being sent to a labour reform camp for two years. The applicant arrived in Australia on 22 February 2007.
The applicant claims to fear persecution in China because of his practise of and adherence to 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 1 June 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 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 106 – 114). Relevantly, they are in summary:
Protection visa application
In his protection visa application, the applicant made the following claims:
a)he was first introduced to Falun Gong in August 1999 when his uncle and nephew were sent to labour reform because of their Falun Gong beliefs and activities;
b)when his uncle and nephew were released in January 2002, the applicant and his mother visited them. His mother hurt her foot after getting off a bus. It was cured by the nephew within three hours. For curiosity and health the applicant began to follow Falun Gong;
c)gradually he accepted Falun Gong as his belief. Reading Zhaun Falun purified his heart;
d)he spread Falun Gong and taught others to practise it;
e)in February 2003 he and other practitioners went to the rural area of Shenyang to spread Falun Gong. One of the practitioners was always keeping a watch for police;
f)on 20 May 2003 he and another person were surrounded by the local police. They were beaten badly. The applicant was beaten with an electric rod for nearly 1 hour and spent two days in detention;
g)he was sentenced to two years labour reform for spreading cults and disturbing the social order and was tortured for two years at Longshan Labour Reform Centre from 20 May 2003 to 19 May 2005;
h)he kept his relationship with other Falun Gong practitioners;
i)the local police monitored him. They came to his home and harassed and threatened him. Sometimes they detained him for three to ten days without any legal reasons;
j)for the freedom of his Falun Gong beliefs and to protect his family he decided to go overseas;
k)he was granted a visa to visit Australia in February 2007; and
l)if he returns to China he will be put in goal or hospital and his organs will be removed for commercial purposes.
Tribunal hearing
At the hearing before the Tribunal on 3 September 2007, the applicant made the following additional claims:
a)his mother and two sisters are also Falun Gong practitioners;
b)he applied for a visa to visit Australia in Shanghai because he was monitored “everywhere” in his local area;
c)contrary to what was written in his protection visa application, he “never said” that the first time he was introduced to Falun Gong was in 1999;
d)he did not know much about Falun Gong before 2002 because he had been working in a factory. He has only a superficial knowledge of Falun Gong;
e)his uncle and nephew cured his mother’s ankle by performing hand movements;
f)after this incident he assisted his uncle and nephew in the countryside when he had spare time by standing guard for them. Sometimes they taught the exercises in his uncle’s home and sometimes in other peoples’ homes. He assisted them at least two or three times a month;
g)he did not learn the Falun Gong exercises as he was standing guard, however, he would watch others doing the exercises and could not join. He stated that he “didn’t really practise much”. He only knew the superficial movements and did not have an in-depth knowledge of them;
h)he had not read any Falun Gong book;
i)he did not spread Falun Gong and did not teach others. He only stood guard for the people who were practising;
j)he did not learn the exercises because he was not at a high enough level to do so and if he did he could tarnish the exercises. He needed to cultivate his mind for learning the exercises but Falun Gong was banned and he was arrested before he got the chance to do this;
k)the incident on 20 May 2003 occurred while he was standing guard while his uncle, nephew and another person tutored others. The police “broke in” and started to beat everyone up. Eight people including him were arrested;
l)he was mistreated while in prison. He refused to repent and was immersed in water up to his waist and left there for two days and two nights. He was beaten hundreds of times without any reason. He signed a confession eight or nine months after he entered detention following which he was not beaten;
m)his wife did not know where he was when he entered detention. However, after he signed the confession the authorities informed his family of his whereabouts;
n)he was harassed many times after his release. The police came to his home over a hundred times, possibly 150 times, and threatened him. He was held at the police station for 3-10 days on more then 10 occasions;
o)he could not get any employment when he was released because people believed that he was practising Falun Gong;
p)a person called Ms Li, whom he had previously met in 2003 in a street demonstration, helped him get a passport. He paid her 100,000RMB;
q)since arriving in Australia;
i)he knew of Falun Gong groups in Sydney but he dared not join until he is granted permanent residency;
ii)he did not do the exercises at home because, without a teacher to guide him, he would go astray or perhaps tarnish the name of Li Hongzhi; and
iii)he dared not buy any Falun Gong books because he was afraid it would endanger his family; and
r)his family is often harassed by the Chinese government. They visit his family about twice a month asking them to tell the applicant to return to China.
Section 424A notice
Following the hearing the Tribunal sent a letter to the applicant dated 11 September 2007 inviting him to comment on certain information. The applicant responded by facsimile dated 23 September 2007 and claimed that:
a)before 2002 he did not know Falun Gong. In January 2002 he visited his uncle with his mother and since then, they have given him knowledge about Falun Gong;
b)he did spread Falun Gong in the sense that he told others about the goodness of Falun Gong, but he did not teach Falun Gong because he “did not learn it on high level”. When he said that he taught Falun Gong he meant that his friend taught others and he sometimes stood guard; and
c)as he was beaten by police in the labour camp he does not have a good memory.
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)after considering the evidence as a whole, the Tribunal was satisfied that the applicant was not a credible witness. The Tribunal found that his evidence was inconsistent and implausible, noting that:
i)in his protection visa application he claimed to be a Falun Gong practitioner, but at the hearing he said that his role was that of a guard for other people who practised Falun Gong. He later said that he was a Falun Gong practitioner but not at a “high level”;
ii)he lacked basic knowledge of Falun Gong;
iii)his evidence was internally inconsistent and this raised doubts about the veracity of the claims and his credibility;
iv)he was not able to provide a clear response about when he was introduced to Falun Gong or when his uncle and nephew had been sent to labour camp;
v)his description of how his mother’s ankle was cured struck the Tribunal as fanciful and his claim that he become involved after this incident was implausible and unconvincing;
vi)in his protection visa application he claimed that he spread Falun Gong and taught others to practise it. At the hearing he said that this was incorrect but submitted a statement after the hearing that made contradictory claims about whether he taught others;
vii)in his protection visa application he claimed that he had read Zhuan Falun but at the hearing he said that he had never read this book or any other Falun Gong book. He stated at the hearing that he had not read any Falun Gong texts since coming to Australia because he considered it to be “dangerous”. In the statement made after the hearing the applicant made the incorrect claim that at the hearing he said that he had not read the “whole book deeply and got to know it intensely”. He also said that he has a copy of Zhuan Falun and he reads it sometimes. The Tribunal did not accept that the inconsistency in his evidence in this regard is due to a poor memory following a beating by police in a labour camp;
viii)the applicant’s claim that he did not practise Falun Gong exercises because he did not think he was at a high enough level to do so was contrary to independent information which suggests that the practice of Falun Gong is simple and that everyone is encouraged to participate in the exercises;
ix)the applicant has not joined in Falun Gong activities since arriving in Australia and has not contacted the Falun Gong Association or any group, which a genuine practitioner could reasonably have been expected to have done;
x)his explanation for why he had not practised the exercises in the privacy of his own home was implausible. The Tribunal found that he has had the opportunity to practise but has chosen not to do so;
xi)his evidence was that he watched his uncle and nephew teach Falun Gong exercises from January 2002 until May 2003, at least two or three times a month. From this experience, it could reasonably be expected that he would know the exercises reasonably well but this was not the case; and
xii)the applicant claimed to adhere to Falun Gong as a religion, yet he was unable to demonstrate a fundamental, basic knowledge of Falun Gong; and
b)on this basis and in consideration of the evidence as a whole, the Tribunal found that the applicant was not a witness of truth and that he fabricated his material claims in order to support his application for a protection visa.
Given this adverse credibility finding, the Tribunal did not accept any of the applicant’s claims about his involvement in Falun Gong.
In summary, it said:
[The Tribunal] does not accept that the applicant has ever practised Falun Gong or acted as a guard while others practised Falun Gong when he was in China. The Tribunal does not accept that he was arrested or detained, mistreated, or that he ever had to sign any promises, or that he was ever monitored by the authorities, or that he is of any adverse interest to the Chinese authorities. The Tribunal does not accept that his memory is poor because of a police beating. It does not accept that his mother, sisters, uncle or nephew are Falun Gong practitioners. (CB 121)
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.
In his submissions at the hearing in these proceedings the applicant raised the genuineness of his adherence to Falun Gong and the fact that the Tribunal had not accepted him on this point.
Jurisdictional error
The application contains no particulars of this first allegation and without particulars, it is an allegation lacking substance. A review of the Tribunal’s decision record does not disclose that the Tribunal failed either to apply the correct tests, to consider the material that was before it, to arrive at conclusions open to it on the evidence, or to observe and apply those sections of the Act which applied to the application before it, including the obligation under s.430 to give reasons for its decision. Nor does the decision record disclose that the Tribunal considered matters which were irrelevant to its task.
For these reasons, the first asserted ground of review does not disclose a basis upon which the Tribunal’s decision might be set aside.
Denial of procedural fairness
The Tribunal’s obligation to afford the applicant procedural fairness is codified by s.422B of the Act in those sections found in div.4 of pt.7 of the Act. The most significant of those sections are ss.424A and 425.
In respect of the former, the Tribunal served a s.424A(1) notice on the applicant and otherwise relied on his evidence given at its hearing and on independent country information, neither of which categories of information are required by that section to be notified to an applicant.
As for s.425, the applicant was invited to a hearing before the Tribunal which he attended and where he gave evidence and presented arguments. It is not apparent that the Tribunal failed to identify to the applicant any relevant issues arising in relation to the decision under review or to have breached any of its other obligations contained in the remaining sections of the division.
For these reasons, the second asserted ground of review does not disclose a basis upon which the Tribunal’s decision might be set aside.
Merits Review
In his submissions at the hearing the applicant pressed the genuineness of his claim and the incorrectness of the Tribunal’s decision. However, the duty of making findings on the merits of review applications is one which is reposed in the Tribunal. Its task is to make findings of fact and reach conclusions on those facts. The Court’s jurisdiction is to determine whether the Tribunal has applied the law and followed proper procedure. It cannot substitute its own view of the merits of an applicant’s case for that of the Tribunal’s.
Consequently, the matters raised by the applicant in his submissions at the hearing do not amount to a basis upon which the Tribunal’s decision might be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 July 2008
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