SZLQQ v Minister for Immigration

[2008] FMCA 703

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQQ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 703

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 “SZLQQ”.

Migration Act 1958 (Cth), s.91X, 424A, 425

Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1

Applicant: SZLQQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3578 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 12 May 2008

Delivered at: Sydney

Delivered on: 12 May 2008

REPRESENTATION

Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Mr Johnson of DLA Phillips Fox

ORDERS

1. The application filed on 19 November 2007 is dismissed

2. The applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3578 of 2007

SZLQQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from ex tempore reasons)

The proceedings

1. The applicant is from Shanghai in the People’s Republic of China and was born in 1966.  He is married and his wife and son remain in China.  He claims to be a genuine Falun Gong practitioner and to have commenced practice in 1997.  However, the Chinese Communist Party outlawed Falun Gong on 22 July 1999.  The applicant claims he was arrested in 2002 and sent to prison and tortured.  He claims that in the evenings he was removed from his cell and beaten.

2. The applicant states that he had injuries to his back, legs and face, and that the police “worked hard” to make him give up Falun Gong.  He was released after three months in detention and he sold his belongings to raise money to bribe officials so that he could obtain a passport and leave China.  He seeks protection in Australia to avoid persecution in China.

3. The applicant arrived in Australia on 8 April 2007 and applied for a protection visa on 11 April 2007.  A delegate of the Minister refused the application on 23 June 2007 and the applicant sought a review of the decision before the Refugee Review Tribunal (“the Tribunal”) on 23 July 2007.  A hearing was held before the Tribunal on 20 September 2007 and a decision handed down on 25 September 2007.  An application to this Court was made on 19 November 2007 for review of the Tribunal decision.

4. A Court Book prepared and filed by the first respondent's solicitor is marked Exhibit “A” and is the only evidence before this Court.  At first Court date directions the applicant indicated that he wished to participate in a scheme to give unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal.  The Court file indicates that the applicant was allocated a panel advisor but he informs the Court today that he received correspondence but decided not to take that advice.

5. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied on by 26 February 2008.  Nothing has been filed and the applicant confirmed this morning that nothing had been prepared.

6. There are two grounds of review in the original application which state:

   1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   2. The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.

   3. Costs.

   Neither of these grounds have been particularised and there has been no attempt to make further submissions to support them.

7. The Tribunal found that the applicant did not have knowledge that would be expected of a Falun Gong practitioner with the level of experience that the applicant claimed to have.  The Tribunal made the following comment:

   The Tribunal acknowledged that it may be difficult for an applicant to articulate the principles and meanings behind the practice of Falun Gong during a hearing situation and that they may be nervous to demonstrate the exercises.  However, the Tribunal does not accept that the nervousness explains the applicant's lack of knowledge or understanding of Falun Gong.  The Tribunal is satisfied the applicant had full opportunity during the Tribunal hearing to explain his knowledge of Falun Gong and its importance to him.  The Tribunal does not accept that he was able to do so in anything other than an extremely limited manner.  The Tribunal would expect a Falun Gong practitioner with the applicant's claimed period of practice, even one who claims not to have practised for at least two years, to be able to articulate and understand the principles and meanings of Falun Gong. (CB 67.3)

8. The Tribunal found that, in the light of the serious deficiencies in the applicant's evidence, he was not a Falun Gong practitioner in China.  The Tribunal did not accept that the applicant was currently a Falun Gong practitioner nor that he had been arrested and detained in China.  It stated in its “Findings and Reasons”:

   In light of the serious deficiencies in the applicant's evidence in relation to his knowledge of Falun Gong the Tribunal does not accept that he was a Falun Gong practitioner in China.  The Tribunal does not accept that the applicant is currently a Falun Gong practitioner.  It follows that the Tribunal does not accept that the applicant was arrested and detained in China for the period that he claims for practising Falun Gong.  The Tribunal does not accept that the applicant suffered serious harm in China nor that he would continue to practice Falun Gong if he were returned to China, or that there would be a real chance that he would be persecuted on the basis of his claimed involvement in Falun Gong.(CB 67.7)

9. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to China.

Consideration

1. I note Mr Johnson's written submission that there was no error in the Tribunal decision.  The Tribunal’s finding of fact was open to it on the evidence and cannot be disturbed by judicial review: Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J.

2. Mr Johnson also submits that the applicant's ground that the Tribunal decision involved an error of law is based on an assertion of jurisdictional error without particulars.  He submits that the Tribunal complied with its obligations under the Migration Act 1958 (Cth) (“the Act”) and, in particular, it complied with s.425 of the Act by inviting the applicant to attend a hearing. The invitation was for the applicant to give evidence and present arguments on the issues which arose in relation to the review.

3. That invitation was issued on 21 August 2007, indicating that the Tribunal hearing would be held on 20 September 2007.  It contained information explaining how the hearing would take place and the applicant’s right to give oral evidence and have other person or persons give evidence in his support.  The applicant, or someone who assisted the applicant, responded by completing the return form indicating that he would attend the hearing and would need the assistance of a Mandarin interpreter.  The form also stated that he did not wish to bring any witnesses.

4. In the circumstances, I am satisfied that the requirements of s.425 of the Act have been complied with.

5. During the hearing, the applicant was invited to comment on the concerns the Tribunal had about his credibility, which he declined.  I refer to the following passage from the Tribunal’s “Claims and Evidence” which states:

   The Tribunal indicated to the applicant the lack of knowledge of Falun Gong as demonstrated evidence at the hearing would lead the Tribunal to conclude that he was not a Falun Gong practitioner since 1997, that he is not a genuine Falun Gong practitioner, and it follows that it would not accept that he had been detained for being a Falun Gong practitioner, and that it would not accept that he had ever been a genuine Falun Gong practitioner. (CB 64.3)

6. This means that the Tribunal would not accept his claims.  The Tribunal asked the applicant whether he understood the information and its relevance, and the applicant indicated that he did.  The Tribunal invited the applicant to comment or respond.  The applicant said he would do so the Tribunal in the future.  When asked when that would be, the applicant said in two or three months.  The Tribunal said it was not prepared to grant an adjournment and gave the applicant a further opportunity to comment or respond.  The applicant then replied that he did not need more time and provided no further comment or response.

7. The first respondent also submits that the Tribunal did not breach s.424A of the Act in making its decision. The Tribunal, although not required to do so, put to the applicant at the hearing information that would be part of the reason for its decision and invited his comments. It is submitted that there was no obligation to do so as this was not information but rather a subjective appraisal or thought process of the Tribunal. Notwithstanding, the “information” would in any event fall within the exception in s.424A(3)(b), as it was information given by the applicant for the purposes of the application.

8. In support of this view, I refer to the Tribunal decision under the sub-heading "Hearing on 20 September 2007" where the member made the following statement explaining to the applicant the way that the Tribunal hearing would be held:

   The Tribunal was assisted by an interpreter in the Mandarin language. In addition explained the relevant law as set out above, the Tribunal advised that in the hearing it may discuss information that would be a reason for affirming the decision under review and that it would explain the information carefully so that the applicant could understand it and could understand why it is relevant to the Tribunal's decision.  The Tribunal advised the applicant that it would ask the applicant to comment on the information and to let the Tribunal know if he did not understand the information or if he did not understand why it is relevant.  The Tribunal advised that if the applicant wanted more time to respond or to comment on the information the Tribunal would consider whether to adjourn the review to give him more time. (CB 62)

9. In light of that background I am satisfied that the Tribunal has complied with its obligations under s.424A of the Act.

Conclusion

1. The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Mandarin interpreter.  The Court provided the applicant with a panel advisor, but the applicant failed to attend the conference. He also did not file an amended application.  He appeared to have no clear understanding of the function of this hearing and was under the misapprehension that it was a further merits review of his protection visa application.

2. The applicant was invited to make oral submissions but unfortunately did not respond with any meaningful submissions.  This places on the Court an obligation to independently consider whether any argument based on the material contained in the Court Book and in particular the Tribunal decision may support a claim of jurisdictional error.  The solicitors for the first respondent assisted with written submissions in response to the application.  I am satisfied that the issues identified in the application have been satisfactorily addressed.  I agree with those submissions that on a fair reading of the material available to the Court the applicant's claims should be rejected.

3. It is not apparent that any other grounds of review exist which suggest that the Tribunal made a jurisdictional error in its decision making process.  Consequently the applicant's claims should be dismissed.

4. I am satisfied that an order for costs should be made in this matter.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date:  29 May 2008