SZLTZ v Minister for Immigration
[2008] FMCA 836
•4 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 836 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLTZ”. |
| Migration Act 1958 (Cth) s.91X |
| Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] 86 FCR 547 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 |
| Applicant: | SZLTZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3870 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 19 December 2007 is dismissed.
The applicant is to pay the first respondent its costs and disbursements fixed in the sum of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3870 of 2007
| SZLTZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Settled from ex tempore reasons)
The female applicant is from the Hongkou District in Shanghai in the People’s Republic in China. She was born in September 1961 and is of Han ethnicity. The applicant claims she is divorced and has one daughter born in 1987 that remains in China with the applicant's parents. The applicant claims she was educated for eleven years, including high school in 1980, and was employed as an accountant for two different companies between the periods of March 1981 to May 2005.
The applicant left China and seeks a Protection (Class XA) visa in Australia because she claims that she is a practitioner of Falun Gong activities and philosophies. The applicant is afraid to stay in China and claims that she is prohibited from working because of her Falun Gong adherence. She claims that she will not give up her faith and that if she returns she will be arrested by the police because she is listed as an identified Falun Gong practitioner and Falun Gong has been banned since July 1999.
The applicant claims that she was dismissed from work because she was a Falun Gong practitioner. The employer suspected that the applicant was practising Falun Gong because of her ill health and she quite often went out to participate in activities like martial arts. The applicant said that she began practising Falun Gong around 2003 in order to improve her health.
She was introduced to Falun Gong by a friend in Shanghai when she commenced martial arts. The friend said that Falun Gong is beneficial to one’s health. She practised Falun Gong in Hongkou Park with other people and at home alone. She claims she participated in the activities in the park once or twice a month but not every day. The applicant claims that the people that she practised with in the public park were there on an irregular basis.
The applicant arrived in Australia on 3 May 2007 and applied to the Department of Immigration & Citizenship for a Protection visa on 10 May 2007. The delegate refused to grant the visa on 23 July 2007, and the applicant applied to the Refugee Review Tribunal on 23 August 2007 for a review of the delegate's decision. It is the Tribunal decision of Jennifer Ciantar, reference number 071667987, signed on 20 November 2007, which is the subject of review in this Court.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A” and is the only evidence that is before the Court.
At the first court date directions hearing the applicant indicated to the Court that she wished to participate in the scheme that provides unrepresented applicants in refugee matters with independent legal advice on the prospects of success of their appeals. The Court file indicates that the applicant was allocated a panel advisor but she advised the Court today that she forgot to attend her appointment.
The applicant was granted leave to file an amended application giving complete particulars of each ground of review to be relied on by 2 April 2008 but nothing has been filed.
The Court also requested that the applicant file short written submissions, with a list of authorities. However, nothing has been received.
The applicant appeared before the Tribunal on 27 September 2007 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hun Tian Wu. The Tribunal hearing was conducted with the assistance of an interpreter in Mandarin and English languages. The applicant was represented by her registered migration agent.
The witness, Mr Wu told the Tribunal that he had known the applicant from China and was aware of her case before the Tribunal. He indicated that he was not a Falun Gong practitioner but he was interested in the philosophy and sympathised with practitioners after reading reports on Falun Gong.
Mr Wu believed that the applicant practised in Australia but he was not certain as he had not been in written contact with the applicant due to work commitments. He informed the Tribunal that he met with the applicant once a fortnight and they discussed past events and any updates regarding Falun Gong. The witness indicated to the Tribunal that he had been in Australia for nearly 18 years.
The Tribunal put to the applicant that the witness indicated that friends of his in Australia practised Falun Gong with her. However, she told the Tribunal that she does not practise Falun Gong in Australia. The applicant stated that she does not want others to know too much about her.
The Tribunal noted that in her Protection visa application, the applicant stated that she would later provide further documentation about her practice of Falun Gong. However, she indicated that she had abandoned this material as she feared that Customs would discover the material. The Tribunal considered independent country information when it reviewed the application.
The Tribunal's “Finding and Reasons” indicates that it was not satisfied that the applicant was a Falun Gong practitioner. At the hearing she displayed almost no knowledge of Falun Gong practice as indicated by her lack of ability to answer questions or ability to demonstrate Falun Gong exercises. The Tribunal was of the view that an experienced Falun Gong practitioner with three to four years standing would be able to perform the five Falun Gong exercises and have some understanding of the philosophies of Falun Gong.
The Tribunal was not satisfied that the applicant had more than a minimal understanding of the attitude of the Chinese authorities towards Falun Gong. The applicant stated that Falun Gong had become illegal in 1996 where country information indicated that it was not made illegal until July 1999.
The Tribunal also considered the evidence given by Mr Wu, the witness at the Tribunal hearing. It was not satisfied that the evidence added anything to the applicant's claim; therefore, it was disregarded.
The Tribunal did not accept that the applicant had met regularly in the public park with other Falun Gong practitioners in 2003 due to the applicant's limited knowledge of the philosophy and exercises of the Falun Gong. Furthermore, the fact that Falun Gong has been illegal in China since July 1999 undermines the credibility of the applicant’s claims.
In the original application filed on 19 December 2007 for these proceedings, the applicant listed two grounds of review. Ground one:
RRT refused me just because RRT doesn’t believe what I said. This is subjective, this is only personal opinion. RRT did not apply the Act properly.
And ground two:
Decision maker should use legislation, Act and shouldn’t use personal opinion to make decision.
Neither of these grounds are particularised, nor has the applicant taken the opportunity to file an amended application giving complete particulars to develop the arguments in respect of these two claims.
The applicant has not made any written submissions, nor has the application been supported by any substantial oral submissions. I note the first respondent's submissions in respect of ground one provides that the application appears to cavil.
It is noted that the Tribunal is an inquisitorial review body whose task is to ask questions, weigh evidence and make findings of fact. The Tribunal did exactly this and found that the applicant was not a credible witness due to the applicant’s lack of knowledge of Falun Gong at the hearing.
As indicated earlier in this decision, the only material before this Court is a copy of the Court Book (“CB”) and the only material reflecting what occurred at the Tribunal hearing is the material contained on the face of the decision record.
The Tribunal's adverse credibility finding and the consequent rejection of the applicant's claims is a matter for the Tribunal par excellence and I refer to the decision in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, and the particular passage is that of his Honour McHugh J at [67] where his Honour states:
… - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible"….
I am satisfied that the Tribunal’s finding in this respect is open to it based on the rational grounds of the material. This does not disclose an error in the treatment of the applicant's credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] 86 FCR 547.
The Tribunal's “Findings and Reasons” indicates its concern it had with the applicant's evidence which it raised with the applicant during the hearing. The applicant was unsuccessful because the Tribunal found that her claim was not credible.
Ground two is also un-particularised and contains a bald assertion of jurisdictional error although it is not identified. The applicant alleges that the Tribunal erred in using personal opinion in making the decision.
There is a long line of authority, which indicates that a Tribunal member can accumulate, over a period of time, sufficient knowledge in respect of an issue to be in a position to be able to express a personal opinion on evidence given by an applicant in a hearing. This is particularly so in the case of claims of adherence to the philosophy of Falun Gong as there are many applications before the Tribunal and the Court by applicants that claim that Falun Gong is a sole ground of their application for a Protection visa.
The understanding and existence of a substantial body of information concerning Falun Gong is now readily available to Tribunal members. Brief references have been made to it in the Tribunal’s decision. The claims were inconsistent and implausible and therefore the Tribunal member did not accept that the applicant was a Falun Gong practitioner.
The applicant is a self represented litigant in this Court and placed minimal material before the Court. This imposes and an obligation on the Court to consider the content of the Court Book and the Tribunal’s decision to determine whether there is any ground of judicial error that has not been raised by the applicant in her original application. After reviewing the document in its entirety, I am satisfied that there is no jurisdictional error that can be identified in the Tribunal's reasoning.
In the circumstances, I believe that the application should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 24 June 2008
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