SZLWJ v Minister for Immigration - [2008] FMCA 992

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLWJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 992

MIGRATION – Review of decision of RRT – infelicity of expression is not a jurisdictional error.

Migration Act 1958, s.422B

Applicant:

SZLWJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 44 of 2008

Judgment of:

Raphael FM

Hearing date:

3 July 2008

Date of last submission:

3 July 2008

Delivered at:

Sydney

Delivered on:

3 July 2008

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Ms V McWilliam

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 44 of 2008

SZLWJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in Australia on 4 December 2001. On 4 January 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 21 February 2002 a delegate of the Minister refused to grant a protection visa and on 20 March 2002 the applicant applied for review of that decision. The Tribunal invited the applicant to attend a hearing, which she did, together with her migration agent. After the hearing the applicant provided the Tribunal with a further statement and some documents. On 31 March 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 22 April 2003. The applicant claimed that she had not received this decision and on 18 December 2007 wrote to the Refugee Review Tribunal seeking a copy. A copy was provided to her. The applicant then lodged an application with this court on 9 January 2008. The respondent has not taken any point in relation to the lengthy delay and the matter has proceeded on the basis that I should review the decision on its merits, as that word is understood for the purpose of these reviews.
The grounds upon which the applicant claimed that she was a person to whom Australia owed protection obligations were that she was a Falun Gong practitioner who had commenced her adherence to that sect in approximately November 1997. Following the crackdown on Falun Gong practitioners in November 1999 she claimed that she was forced to give up her practice and her home was searched and material was confiscated. The applicant did not give up practice of Falun Gong. She went to a neighbour's home and practised with her. This action was discovered and she was warned off by the PSB. She says that she did not heed the warning of the PSB. So four police officers came to her home and detained her. She was detained for about five days until her parents paid a large sum of money for her release. She was required to attend re-education classes which were critical of the Falun Gong movement. She feared that she would be further imprisoned and made arrangements to travel to Australia.
These matters were raised by the applicant in her initial protection visa application [CB 25] and in a letter to the Minister [CB 41]. When she attended a hearing the Tribunal questioned her on these matters and some of the dates that she had originally given were clarified.

She spoke for the first time about her dismissal from her workplace. The applicant also told the Tribunal about her activities in Australia where she regularly practised Falun Gong exercises at Darling Harbour and had demonstrated outside the Chinese Embassy.
On 14 March 2003 the applicant wrote a detailed letter to the Tribunal which gave further details about her claims both relating to what happened in China and also what she had done in Australia. She submitted some documents which on their face indicated that she had been disciplined by her employer and eventually dismissed because of her Falun Gong activities. These documents have been reproduced [CB 58-62].
The Tribunal summarised its views about the applicant at [CB 85]:
“The Applicant was not an impressive witness. Even making allowances for possible nervousness at the hearing the Applicant's recollection of dates was very poor. She also displayed a tendency to introduce additional claims at the hearing whenever she perceived that it might assist her case. Examples were her[e] being questioned, beaten and required to sign documents [and] detained in late December 1999. None of these claims were ever mentioned by the applicant prior to the hearing.
There were a number of serious omissions or inconsistencies in the claims of the applicant as originally presented and her evidence at the hearing.”
The Tribunal then sets out five examples of omissions or inconsistencies before referring to the letters that were submitted post-hearing.
“I would have expected that if genuine, either the Applicant or her adviser (who was present at the hearing) would have tendered the letters even if unaccompanied by a translation. They were never mentioned at the hearing. Further, the originals have not been produced, only photocopies. No official translations have been made available. I am not prepared to attach any weight to these documents.”
It is to be remembered that the hearing took place on 6 March and the documents were provided to the Tribunal on 14 March. The Tribunal expressed the view that it considered it implausible that the applicant had continued to practice Falun Gong after her release from detention.
“I do not consider it at all plausible that a frail and nervous person such as the applicant who had been detained, held and mistreated by the PSB, as she claimed at the hearing, would have dared to continue to practice Falun Gong in her room at the home of her parents for some 11 months after her release and prior to coming to Australia.”
The Tribunal accepts that the applicant had some knowledge of Falun Gong and did practice Falun Gong in China and in Australia. It came to the view that there was no evidence before it of any activities within Australia that would lift the profile of the applicant with respect to Falun Gong to the point that she would be of any adverse interest to the Chinese authorities upon her return to China.
“There is nothing to suggest that the Applicant was ever more than an ordinary practitioner of the Falun Gong exercise regime. On her own admission she was not a high profile member of Falun Gong. Despite her claims that she left China “sneakily”, I am satisfied that she had no difficulty obtaining an exit visa to leave China and departed China with a passport issued in her own name and without any interference from the Chinese authorities. I am satisfied the applicant was not considered to be of any adverse interest to the Chinese authorities at the time she left China.”
The Tribunal then expressed similar sentiments about the implausibility of the applicant's story concerning the docking of her pay and her dismissal that it raised in relation to her continued practice after her release from detention before saying:
Because of her failure to mention her claims of difficulties with her employer until the hearing and the different dates given by the applicant for her dismissal at the hearing, I do not accept that the Applicant was ever dismissed from her employment for practising Falun Gong. In short, I am not satisfied that the Applicant suffered any mistreatment from the Chinese authorities between December 1999 and 3 December 2001 when she left China.”
The applicant makes a number of complaints about the Tribunal decision and I accept that to a person who does not have a good command of English the manner in which some of the conclusions have been reached might be confusing. Particularly, I refer to the paragraphs relating to the plausibility of claims from a "frail and nervous person", and the implausibility about her continuing to adhere to the Falun Gong after warnings from her employer. Whilst it would seem unnecessary to have made these remarks, in view of the fact that the Tribunal did not believe that the employer did act in the way suggested or that the applicant was detained, held or mistreated by the PSB in the way suggested, and they may not be readily understood by a person who does not speak the language of the writer, this is not a jurisdictional error.
In her application the applicant says that the Tribunal fell into error by failing to act judicially and failing to afford her procedural fairness by rejecting her claim. The particulars that she gives are:
“(a) It was not open to the Tribunal to reject my claimed fear of persecution without cogent material supporting the conclusion that the applicant's commitment to Falun Gong was not genuine.”
As Ms McWilliam points out in her helpful written submissions:
“It is well established that the Tribunal is not required to uncritically accept all allegations made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 415 per Beaumont J. Similarly, a Tribunal need not possess rebutting material before it finds that an applicant's claims are not made out: Selvadurai v Minister for Immigration (1994) 34 ALD 347 per Heerey J at 348.”
I cannot assist the applicant upon this ground.
“(b) The Tribunal rejected my claim of fear of persecution being
well-founded in circumstances where it accepted that the full facts about PSB spies in Australia are yet to be established.”
I am unable to find that phrase in the Tribunal's reasons for decision.
The applicant raised as a claim that the Tribunal had accepted that she had some knowledge of Falun Gong and did practice Falun Gong in China and in Australia. She refers to producing a picture of herself sitting outside the Chinese Embassy and refers to her activities in Australia. This appears to me to be seeking a merits review from this court pursuant to which I would disagree with the Tribunal as to its views upon the applicant's activities in this country. The court is unable to grant the applicant a merits review.
The applicant then argues that the Tribunal constructively failed to exercise its jurisdiction or to afford her natural justice when it did not consider all the integers of her claim. The particulars are not easy to understand:
“I suffered restrictions in China because of my involvement kept sprats Falun Gong spiritual to others and if I am found to be a practitioner in China the penalty I will get will be even worse because of my record.”
I take this to mean that the applicant is suggesting that the Tribunal did not consider what might happen to her if she returned to China because of her activities in Australia. However, the Tribunal did do that and I have extracted its findings.
Before me today the applicant gave a lengthy submission. Much of it was a complaint that her claims had not been accepted by the Tribunal and was to this extent a request for merits review. Ms McWilliam identified seven matters raised by the applicant. The first was that she had no lawyer. As I explained to the applicant, legal assistance in these matters is a privilege, not a right. But I note that she did have the opportunity to take part in the Minister's scheme and on 6 March 2008 received advice from counsel thereunder. The second matter raised by the applicant related to delay. The Minister has not raised any point in relation to the delay. The third matter was an allegation that the Tribunal had not complied with s.422B of the Migration Act 1958 (the “Act”). Of course s.422B is merely a declaratory section relating to the code for the conduct of the review. The applicant expressed her views about the failure to comply with s.422B by saying that the Tribunal had decided the case according to its own views and it overrode her personal safety. This again seems to me to be doing no more than wishing to find fault with the Tribunal's decision because it did not agree with the claims put forward by the applicant. To the extent that the applicant was requiring rebuttal evidence from the Tribunal I have already referred to the section from Ms McWilliam's submissions with which I agree.
The fourth matter raised by the applicant was that the Falun Gong are worse treated now than they were in 2003. This may well be true, but it does not assist the court in reviewing a decision that was made in 2003. I explained to the applicant that she may well be able to ask the Minister to exercise some discretionary power in the light of the current situation but the court could not make any findings in relation to the decision on that basis. The fifth matter was that the Tribunal proposed to allow her to go back to China and take a chance upon being persecuted. This is the applicant's interpretation of what the Tribunal paid, that she truly is a person who the Chinese authorities would persecute should she return. That is not an assumption or a finding which the Tribunal made.
The sixth matter raised by the applicant was the apparent inconsistency between the Tribunal's acceptance that she was a person who had practised Falun Gong in China and in Australia and its finding that she would not be in danger should she return. The Tribunal explains this on the basis that the applicant's practice of Falun Gong was not of the type to raise the ire of the Chinese authorities. She was not a high profile member. This Tribunal has not extracted, as many Tribunals do, the standard independent country information about the Chinese attitude to Falun Gong practitioners. But one can assume that such information was known to it and formed the basis for its views. In those circumstances there does not appear to be any inconsistency that would amount to a jurisdictional error. Finally, the applicant said that the Tribunal did not consider all of her claims. I am satisfied from my reading of the Tribunal decision that the claims made by the applicant in her initial statement, in her oral submissions and in her written submissions received by the Tribunal on 14 March 2003 were all considered by the Tribunal.
In the circumstances I am unable to see any manner in which the Tribunal fell into jurisdictional error. I dismiss the application.

I should state that on 19 June 2008 the applicant filed an affidavit with the court. This remains in the file. The affidavit exhibits a considerable amount of recent material concerning the situation in China for Falun Gong activists. Whilst there is one piece of information from 2003 this is after the decision. The rest of the information is very recent. It is not open to this court to take into account either the affidavit or the information contained therein.

The applicant shall pay the first respondent's costs which I assess in the sum of $4,500.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: