SZLRY v Minister for Immigration - [2008] FMCA 766

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRY v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 766

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 “SZLRY”.

Migration Act 1958 (Cth), s.91X

NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235

Applicant:

SZLRY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3697 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

22 May 2008

Delivered at:

Sydney

Delivered on:

22 May 2008

REPRESENTATION

Applicant:

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

Solicitors for the Respondent:

Ms M Mafessanti of Clayton Utz

ORDERS

The application filed on 29 November 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements fixed in the sum of $2,050.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3697 of 2007

SZLRY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(Settled from ex tempore reasons)

The applicant is a married man born in 1966 from Shandong Province, the People’s Republic of China. His wife remains in China. The applicant claims in his original application that he has a son studying in Australia.
The applicant claims that he was persecuted because of his adherence to Falun Gong, which he has been practising for a period of 10 years. He claims he was detained in September 2003 for a month. He claims that during the detention, he suffered a head injury and was hospitalised. The Court Book (“CB”) contains a document dated 12 June 2004 and translated into English in respect of the applicant's release from detention. This document contradicts the information given by the applicant at the Refugee Review Tribunal (“the Tribunal”) hearing, that he was detained in September 2003.
The applicant arrived in Australia on 5 July 2007 and applied for a Protection (Class XA) visa on 27 July 2007. A delegate of the Minister for Immigration subsequently refused the application on 24 August 2007 and the applicant applied to the Tribunal for review of that decision. On 5 November 2007 Tribunal member, Hugh Wyndham, handed down a decision dismissing the review application (reference number 071743688). It is that decision that is the subject of judicial review before this Court.
A Court Book, prepared by the first respondent's solicitors and marked Exhibit “A” is the only evidence before the Court.
At the first Court date, the applicant was offered the opportunity to participate in the Court-sponsored panel advice scheme but he declined. At the same directions hearing, he was ordered to file an amended application fully particularising his claims but nothing has been filed. Orders were also made requiring the applicant to file written submissions outlining any supporting material and argument in support of the application. This order was also not complied with.
The Tribunal’s “Findings and Reasons” affirmed the delegate's decision not to grant the applicant a protection visa because it did not accept that he was a Falun Gong practitioner. This finding was based on the applicant's total lack of knowledge on any aspect of the practice of Falun Gong or its associated philosophy. The Tribunal made the following findings:
a)It did not accept that the applicant had been detained as a result of his practice of Falun Gong (CB 91.2);
b)Since the applicant was in possession of a passport two years before leaving China, it was not satisfied that the applicant had a genuine fear of persecution in China (CB 91.4);
c)It did not accept that the applicant was detained as a result of his practice of Falun Gong (CB 91.5);
d)It did not accept that there was a real chance that he would suffer any harm amounting to persecution if he returned to China (CB 91.6).
On 29 November 2007 the applicant filed an application for judicial review in this Court which contained three grounds for review. Ground one states:
The Tribunal failed to consider the real chance of risk of being jailed if the applicant return to his original country.
Ground two states:
It is not reasonable for the Tribunal to deny my claims for a protection visa.
Ground three states:
The Tribunal made the finding which is illogical.
The applicant was invited to provide the Court with oral submissions in support of his application but this was limited to repeating the claims as previously stated. There was no attempt to elaborate on those basic claims and there has been no further development of the issues contained in the original statement attached to the protection visa application, those made at the Tribunal hearing or contained in the grounds of review.
The Court acknowledges the difficulty the applicant faces in not speaking the language or understanding the legal system. However, he has been able to file a protection visa application in the form necessary to satisfy the Department’s requirements. He subsequently completed an application for review to the Tribunal, again in the appropriate form, and an application to this Court. There is no doubt that the applicant is receiving assistance because there is a typed document setting out his claims together with photocopies of translated documents as required by the Tribunal. I also note that the applicant's contact address is a post office box located at 226 Elizabeth Street, Surry Hills, which is an address commonly seen in this Court and associated with numerous other protection visa applications.
The other anomaly is that Surry Hills is a considerable distance from the applicant's residential address at Campsie.
Consequently, while the Court sympathises with the applicant's difficulties, it does recognise that the applicant has obtained assistance. This is despite the fact that in all of the applications the applicant said he received no assistance in their preparation.
Turning to the grounds of review, ground one is a claim that the Tribunal did not fully consider the consequences of the applicant returning to China and the possibility of him being persecuted again because of his adherence to Falun Gong. A fair reading of the decision clearly states that the Tribunal pursued this issue with the applicant and the “Findings and Reasons” state that the applicant was asked a series of questions about Falun Gong in a number of different ways. The experienced Tribunal member spent a great amount of time asking more questions than usual on aspects of the practice of Falun Gong. The Tribunal member noted:
The applicant not merely could not answer my questions, but seemed to be quite unfamiliar with the Mandarin Falun Gong terminology I was using. I do not accept that the applicant is a Falun Gong practitioner. (CB 91)
In the circumstances I am satisfied that ground one cannot be sustained and should be dismissed.
Ground two claims that it was not reasonable for the Tribunal to deny the applicant's claim. This ground contains no particularisation, nor is there evidence to support the allegation. As I said above, the Tribunal member made a more thorough than normal examination of the applicant's only claim of fear of persecution because of Falun Gong. In the circumstances I am satisfied that the Tribunal member has complied with his obligations and this ground cannot be sustained and should be rejected.
The third ground of review claims that the Tribunal’s finding was illogical. I believe the decision is a true statement of the Tribunal’s consideration of the applicant's evidence and submissions. That process and the reasons for its rejection of the application are clearly expressed, albeit simply and briefly. There is no evidence of illogical reasoning by the Tribunal which supports the applicant’s claim.
The first respondent referred me to NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235. That decision addresses Tribunal decisions which have been alleged to be illogical and discusses whether irrational or illogical reasoning is a legitimate ground of judicial review. Justices Tamberlin, Emmett and Weinberg make the following comment at [29]:
In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.
I am satisfied that the three pleaded grounds of review cannot be sustained and should be dismissed. I have independently reviewed the contents of the Court Book and Tribunal decision, and it is not apparent that any jurisdictional error is contained in the reasoning of the Tribunal. In the circumstances the application filed on 29 November 2007 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:

Date: 11 June 2008