SZLWF v Minister for Immigration - [2008] FMCA 949

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLWF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 949

MIGRATION – Review of decision of RRT – no reviewable error.

Migration Act 1958, ss.65, 422B, 424A

Minister for Immigration & Multicultural & Indigenous Affairs vSGLB (2004) 78 ALJR 992

Applicant:

SZLWF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 31 of 2008

Judgment of:

Raphael FM

Hearing date:

2 July 2008

Date of Last Submission:

2 July 2008

Delivered at:

Sydney

Delivered on:

2 July 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 31 of 2008

SZLWF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 25 July 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 20 August 2007. On 3 September 2007 a delegate of the Minister declined to grant a protection visa.

On 3 October 2007 the applicant applied for review of the delegate's decision from the Refugee Review Tribunal. On 15 October 2007 the Tribunal wrote to the applicant inviting him to appear before it on 12 November. On the same day another letter was sent to the applicant inviting him to comment upon certain information that would, subject to those comments, have been the reason or part of the reason for affirming the decision that was under review. The applicant did not respond to that letter other than to send to the Tribunal two documents in the Chinese script. But he did attend the hearing. On 16 November 2007 the Tribunal determined to affirm the decision and handed that decision down on 6 December.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were originally contained in a statement annexed to his protection visa application [CB 27].

It indicated that the applicant was a Falun Gong practitioner who had been detained by the police for six months and tortured. He feared that this would happen to him again should he, as he wished, participate in further activities of the Falun Gong movement demonstrating publicly and persuading other persons to become part of the movement.
The delegate did not accept that the applicant was a genuine Falun Gong practitioner for a number of reasons including the fact that the applicant was able to depart China without any difficulty even though he claimed to be a person who was of interest to the Chinese authorities. The delegate was concerned that the applicant had not contacted any Falun Gong practitioners in Australia or claimed to have practiced since his arrival in this country. It noted that the applicant had been employed by the same employer for the last ten years and showed a stable residential and work history so that if he was indeed wanted by the authorities it would have been easy for them to have tracked him down. The Tribunal noted that the applicant had visited Japan and had returned to China which indicated that his fear of persecution might not be genuine.
The letter written by the Tribunal to the applicant on 15 October 2007 canvassed many of these matters and they were also taken up with the applicant at the hearing. During the course of the hearing the applicant made an additional claim that he had been involved in the Tiananmen Square activities in 1989 and he was a democracy advocate.

The Tribunal questioned him on these matters and in particular upon why this information had only just been provided to it and had not been part of his original application or any subsequent documentation.
The Tribunal questioned the applicant about his activities as a Falun Gong adherent and his knowledge of the movement and its exercises. He questioned him about the claims that he has been arrested and his ability to leave the country. And also about his practise of Falun Gong since he had arrived.
The Tribunal put to the applicant certain independent country information both about the 1989 events and about Falun Gong and the ability of persons to leave China when they were considered to be of interest.
In its findings and reasons the Tribunal came to the conclusion that the applicant was not a credible witness:
“The applicant appeared to have memorised aspects of his claims and some information about Falun Gong and gave confused and evasive answers with respect to other aspects of his claims. On many occasions the Tribunal had to repeat its questions several times to elicit a response from the applicant. The Tribunal is also concerned that some of the applicant's claims were raised for the first time at the hearing. The Tribunal is not satisfied that these matters arise as a result of the applicant's mental condition, of which he gave no details and no medical evidence and which he appeared to have mentioned only as a result of his difficulties in responding to the Tribunal's questioning.” [CB 78]
The Tribunal then went on to deal with the 1989 democracy movement claims, which it dismissed because of their late emergence and the confused and inconsistent evidence, before turning to the Falun Gong claims. These were rejected comprehensively by the Tribunal at [CB 79 - 81] in eleven dot marked paragraphs. I am satisfied that these paragraphs, set out in a manner consistent with the Migration Act 1958 (the “Act”) were grounds for failing to come to the state of satisfaction required under s.65 and there does not appear to me to be any necessity to repeat them in these reasons for decision. They are consistent with the passage already extracted and show up the inconsistencies in the applicant's evidence and his lack of knowledge of matters which the Tribunal believed he would be aware of had he been a genuine

Falun Gong adherent.
On 8 January 2008 the applicant filed in this court an application for review of the decision of the Tribunal. There were three grounds for that application. The first was that he was denied procedural fairness in connection with the making of the decision. No particulars of the denial are provided. The review was one which was heard pursuant to the provisions of s.422B of the Act and as pointed out already the s.424A letter was sent to the applicant prior to the hearing. The two documents which the applicant provided in response to that letter were accepted as being what he said them to be, namely notices about demotion from his company.
The Tribunal acted in accordance with its obligations in inviting the applicant to attend a hearing and it is clear from the record that all the applicant's claims were dealt with. I am unable to see in what way it could be suggested that procedural fairness was denied.
The second matter was that it was not reasonable for the Tribunal to point out that the applicant was not a Falun Gong practitioner. This is a direct attack on the Tribunal's fact finding. It is in effect a request for a merits review of the Tribunal decision. This court is unable to provide that assistance to the applicant.
The third claim was that the Tribunal member did not ask proper questions in relation to the applicant's claims for a protection visa. Again, we have no particulars of what questions were alleged to be improper or how this constitutes a jurisdictional error. Ms Watson, as ever helpful, suggests that the applicant is effectively asking the Tribunal to make its own inquiries which she points out the Tribunal is under no obligation to do; Minister for Immigration & Multicultural & Indigenous Affairs vSGLB (2004) 78 ALJR 992. This might be what the applicant was saying but I do not think the court should be guessing at his meaning. He told the court that a friend had written this document for him because he did not speak English. We do not have the benefit of a friend at court today. I have looked at the questions that the Tribunal did ask and they seem, as reported in the decision, to be perfectly reasonable indeed a proper, response.
The applicant told me that before the hearing one of his eyes had been injured. It took a week for it to improve. He was in some doubt as to whether he should attend the hearing or not but eventually decided to come. He said that it was because of his eyes that he could not explain the issues to the Tribunal. There is some suggestion that the applicant mentioned a medical problem to the Tribunal but it did not appear to have anything to do with his eyes.
The applicant said that it was very difficult to decide if a person practised Falun Gong or not. What I think he meant was that it was very difficult to provide the evidence that he was a Falun Gong practitioner because he then said that after his arrival in Australia he did not have many friends and he had problems at work so that he could not provide evidence, photographs etc.
I accept that this is possibly what happened to the applicant but it is not a matter that I can take into account in coming to a decision as to whether or not the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The applicant said to me that he had only submitted documents from his company because it was difficult to obtain documents from the government and he did not know what additional evidence was required to prove his claims.
I note that the address the applicant gave in his protection visa application to receive documents was an address in Surry Hills that was not the address in Burwood at which he lived. I note that the applicant does not speak English but that the statement was typed in English and I note that the applicant used the same postal address in his application to the Tribunal. The applicant also told me that a friend had prepared the application to this court. The inference I draw from all of these facts is that whilst the applicant may not have known himself what was required, he appears to have been in contact with people who almost certainly did.
I am unable to find any grounds upon which the Tribunal fell into jurisdictional error from my reading of the decision and the other papers in the Green Book. I dismiss the application. I order that the Applicant pay the First Respondent’s costs assessed in the sum of $3,200.00

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: