SZLVP v Minister for Immigration
[2008] FMCA 965
•17 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 965 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – no denial of procedural fairness proved – no breach of s.424A proved – Court not empowered to review the Tribunal factual findings – credibility-based finding. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 |
| Applicant: | SZLVP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3988 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 July 2008 |
| Date of Last Submission: | 9 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3988 of 2008
| SZLVP |
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 was detained and tortured for as long as ten months because of his Falun Gong practices. The applicant left China and arrived in Australia on 25 July 2007 where he alleges that he continues to practise Falun Gong.
The applicant claims to fear persecution in China because he is a Falun Gong practitioner.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 3 September 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 – 13 of the Tribunal’s decision (Court Book (“CB”) pages 75 – 84). Relevantly, they are in summary:
a)he was a Falun Gong practitioner in China and he applied for a protection visa in order to avoid further “prosecution” and the risk of being gaoled in China;
b)in October 2003 he was arrested by the police and detained at the local police station where he was brutally tortured. He was subsequently sent to Shandong Detention centre for over a month and then transferred to Shandong Forced Labour Camp for nine months where other tortures were inflicted upon him. The applicant was not released until August 2004;
c)he was sacked or was forced to retire in 2005 because he was a Falun Gong practitioner but was kept on the company’s books because he had a good relationship with the leader. After this nobody wanted to employ him and he could not find another job;
d)when asked by the Tribunal why he had he waited until 2006 to apply for his passport, the applicant variously stated that:
i)he consulted many agents and it was difficult for him to get the passport through normal channels because of his practice of Falun Gong;
ii)he bribed somebody to get his passport;
iii)he stated in his protection visa application that he had had no difficulties in obtaining the passport because he did not want to create difficulties for the Chinese officials; and
iv)his wife applied for a passport but was refused because she was a Falun Gong practitioner and he learned from her experience;
e)he travelled to Malaysia and Singapore (or Thailand) in 2006 however these countries were too hot for him so he returned to China despite his fear of persecution;
f)although he did not know that Malaysia and Singapore were not signatories to the United Nations Convention relating to the Status of Refugees and made no such inquiries between August 2004 and 2006, nevertheless he went there because it was easy to get a visa and he heard that it would then be easier to obtain a visa to another country;
g)he practised Falun Gong exercises at home and also read Zhuan Falun at home but in 2003 the materials were confiscated. He could not explain the basic concepts of Falun Gong because he suffered from a bad memory as a result of his persecution;
h)he did not practise Falun Gong at a higher level but was known or perceived by others as a practitioner because he accepted the philosophies of Falun Gong and when his colleagues said something bad about Falun Gong he would refute them. Later on he was reported;
i)since arriving in Australia the applicant has practised meditation every night. Also, on 1 October 2007 he happened to meet Falun Gong practitioners in an area at Central Station and began participating in their activities, including distributing Falun Gong materials. On Sundays he asked for materials from other practitioners to distribute; and
j)he has not been involved in any study of Falun Gong or public performance of the exercises and has not read the Zhuan Falun while in Australia because he did not know where to obtain a copy.
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)the Tribunal found that the applicant was not a credible witness, noting at the outset that:
i)the applicant appeared to have memorised aspects of his claim and some information about Falun Gong;
ii)he gave confused and evasive evidence with respect to other aspects of his claims; and
iii)on many occasions the Tribunal had to repeat its questions several times to elicit a response;
b)the Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that he had adopted the philosophy of Falun Gong, noting that:
i)the meditation performed by him was inconsistent with the performance of any of the Falun Gong exercises and was inadequate to render the applicant a Falun Gong practitioner;
ii)he was not able to explain to the satisfaction of the Tribunal why he adopted the philosophy of Falun Gong but not its exercises;
iii)he deliberately changed his evidence in response to the Tribunal’s concerns about his apparent lack of practise of Falun Gong, initially claiming that he suffered persecution because he was a Falun Gong practitioner but later claiming that he was reported to the authorities for defending Falun Gong in front of his workers and that he was perceived as a practitioner. The Tribunal did not accept the applicant’s explanation that this new claim was not mentioned earlier because the person who assisted him with the application did not have time;
iv)he was unable to explain the concept of Falun, where the Wheel was located or how many lectures there were in Zhuan Falun and had great difficulty explaining how he applied the principles in his daily life. The Tribunal did not accept that the applicant had a problem with his memory due to his persecution, noting that this claim was only raised in oral evidence in response to his inability to answer the Tribunal’s questions; and
v)he had minimal knowledge about Falun Gong and, apart from memorising the concepts of truthfulness, compassion and forbearance, was unable to provide any other meaningful information;
c)the Tribunal did not accept that the applicant had refuted his colleagues’ comments about Falun Gong or that he publicly expressed his support for Falun Gong, noting that:
i)he stated that he wanted to leave China and so travelled to Malaysia and Thailand in 2006 but subsequently returned to China because the countries were too hot. When the Tribunal indicated its concerns the applicant shifted his evidence as the questioning progressed;
ii)he was unable to explain to the satisfaction of the Tribunal why he obtained his passport in 2006, a year after he claimed he was dismissed from work. Further, it was only after persistent questioning by the Tribunal that the applicant stated he had approached many agents to obtain the passport as he could not obtain it through normal channels, whereas previously he had claimed that he had had no difficulties obtaining the travel document. The Tribunal found implausible the applicant’s explanation that he did not want to get the Chinese officials into trouble;
iii)he was able to obtain his passport in 2006 when, he claims, he was known by the authorities to be a Falun Gong practitioner;
iv)he had no difficulties departing China in 2006 and 2007, indicating that he was of no interest to the Chinese authorities nor perceived by the authorities to be a Falun Gong practitioner; and
v)he made no inquiries and made no attempt to leave China before 2006, a considerable time after his claimed release from detention and his dismissal from work.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)Jurisdictional error has bee made. I claimed that I am Falun Gong practitioners but RRT denied it;
(2)Procedural Fairness has been denied; and
(3)RRT did not give me letter to explain doubts.
At the hearing the applicant also submitted that the Tribunal had reached incorrect factual conclusions.
Dealing with each of these grounds in turn:
Merits review
The allegation that jurisdictional error was made by the Tribunal is particularised as being based on the Tribunal’s “denial” of the applicant’s claim to be a Falun Gong practitioner. This ground invites the Court to reconsider or review the Tribunal’s conclusions on the merits of the applicant’s review application to it. However, it is the Tribunal which is charged with making findings of fact on such applications and to reach decisions on the merits of such applications. The Court’s role is to supervise the exercise of that jurisdiction and to determine whether the Tribunal has followed proper procedure and applied the law; it cannot embark upon a further hearing on the merits of the application. Consequently, the first pleaded ground discloses no basis upon which the Tribunal’s decision might be set aside.
Denial of procedural fairness
This ground too is not particularised. The content of the Tribunal’s duty to afford an applicant procedural fairness is codified by s.422B of the Act in those sections found in div.4 of pt.7 of the Act. In this ground, the applicant makes no reference to any particular provision of that division which was breached or not observed by the Tribunal. Of the sections in that division, the most significant are ss.424A and 425. Section 424A is considered below in relation to the third ground pleaded in the application. However, as for s.425, it is to be noted that the applicant was invited to attend the Tribunal hearing and did attend. He gave evidence and presented arguments. He did not allege that the Tribunal failed to identify to him any issue arising in relation to the decision under review. Indeed, the course of the Tribunal hearing as disclosed in the decision record suggests that every aspect of the applicant’s claims were in issue because the Tribunal made it clear during the course of the hearing that it had difficulty with the veracity of his account. As already noted, the applicant has not identified any other section in pt.4 of div.7 which has been breached or not observed by the Tribunal and it is not apparent that the Tribunal did conduct itself in such a fashion.
For these reasons, the second asserted ground of review is not made out.
Breach of s.424A
The third ground pleaded in the application appears to be an allegation that the Tribunal breached its obligations under s.424A in that it did not serve a s.424(1) notice. The first observation to be made in connection with this ground is that, in fact, the Tribunal did serve a s.424(1) notice and referred to it at p.5 of its decision (CB 76). Secondly, a consideration of the Tribunal’s decision record discloses that the basis of its decision was information which the applicant himself supplied to the Tribunal for the purposes of its review in the form of his evidence at the Tribunal hearing and independent country information which the Tribunal sourced itself. Both such categories of information fall within the exclusions to the operation to s.424A(1) found in s.424A(3). Consequently, no breach of s.424A has been identified by the applicant and the third pleaded ground does not disclose jurisdictional error on the Tribunal’s part.
Errors of fact
In his oral submissions at the hearing in these proceedings the applicant referred to the Tribunal’s treatment of aspects of his evidence, saying that the Tribunal’s finding was based on its misunderstanding of his evidence, did not afford enough importance to what he said concerning his experiences of being persecuted and perhaps did not use the facts of his persecution as the basis of its decision. For the reasons already given, the Court is not empowered to review the Tribunal’s findings on such matters of fact. In any event, the Tribunal’s decision was one based on its assessment of the applicant’s credibility, a matter par excellence for the Tribunal to determine: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407. For these reasons, a challenge to the Tribunal’s appreciation of the evidence placed before it by the applicant and the conclusions it drew from that evidence does not present a basis for setting aside the Tribunal’s decision.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 July 2008
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