SZLWX v Minister for Immigration
[2008] FMCA 286
•10 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 286 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| NAAX v Minister for Immigration (2002) 119 FCR 312 |
| Applicant: | SZLWX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 89 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 10 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms D Attard Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 89 of 2008
| SZLWX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 18 December 2007.
The applicant is from China and had made claims for persecution based upon his practice of Falun Gong. Background facts relating to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's outline of legal submissions filed on 5 March 2008. I adopt as background for the purposes of this judgment paragraphs 3 through to 7 of those written submissions:
On 14 June 2007 the applicant, a citizen of China, arrived in Australia on a subclass UC-456 Business (Short Stay) visa on a passport in his own name. He applied for a protection (Class XA) visa on 6 July 2007.[1]
[1] Relevant Documents (“RD”) at 1-26
A delegate of the first respondent refused the application on 24 July 2007,[2] and the applicant applied for review on 24 August 2007.[3] The applicant attended a hearing before the Tribunal on 10 October 2007.
[2] RD at 34-45
[3] RD at 46-49
The applicant claimed to have a well-founded fear of persecution in China on the basis that he was a Falun Gong practitioner. In his written statement[4] he claimed that in 2000 his friend was sentenced to two years’ imprisonment and died in prison after six months. The applicant was questioned for two days and forced to guarantee that he would no longer practice. When he was released he took over his friend’s role as the branch leader and organised Falun Gong activities. In April 2007 he learned that the police were interested in him and were going to charge him for organising illegal Falun Gong activities. At the hearing the applicant claimed that he was detained for more than two months because of his connection with his friend.[5]
Tribunal decision
The Tribunal affirmed the delegate’s decision that the applicant did not have a well-founded fear of persecution. The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner for the following reasons:[6]
(a)on the basis of independent country information stating that the Zhaun Falun is the most important text for practitioners, it was not plausible that a key member would not have read this book over a 10 year period;
(b)the applicant demonstrated that he knew very little about Falun Gong and if he was a genuine practitioner for many years as claimed, he would have been able to provide more meaningful responses to the Tribunal’s questions (the Tribunal did not draw any adverse conclusions from the applicant’s inability to perform the exercises at the hearing because of his claim that he recently had an injury);
(c)the applicant knew very little about significant events in the history of Falun Gong, which the Tribunal found implausible in light of his claim to have started practising in 1997;
(d)the applicant claimed that he only practiced Falun Gong twice since arriving in Australia, and the Tribunal did not accept that a committed practitioner would not make time to practice between 15 July and 24 September 2007.
In view of its finding that the applicant was not a genuine practitioner, it followed that the Tribunal found that the applicant was not a credible witness. It followed from these two findings that the Tribunal found that the applicant was not taken away by police, questioned or detained, was not of interest to the Chinese authorities and did not practice in Australia.
[4] RD at 29
[5] RD at 73
[6] RD at 79-80
These proceedings began with a show cause application filed on 14 January 2008. The applicant now relies upon an amended application filed on 7 March 2008. The only substantive difference between the two applications appears to be the abandonment of the third ground in the original application, which was an asserted failure to take into account relevant material. The applicant continues to rely on an affidavit filed with his original application which asserts a failure to consider his claims and a breach of statutory duty.
In my view, none of the asserted grounds are arguable. The Minister's submissions deal with the grounds as set out in the original show cause application. I agree with those submissions and adopt paragraphs 8 through to 13 for the purposes of this judgment with minor amendments:
Ground 1
The Tribunal did not believe my claims based on the officer assumption. The Tribunal had bias against me and could not consider my application according to law.
The applicant has not put before the Court any evidence in support of this ground, without which it cannot succeed. There is nothing on the face of the reasons for decision to indicate bias on the part of the Tribunal.
Ground 2
The Tribunal failed to carry out its statutory duty. The Tribunal failed to consider my application in accordance with s.424A of the Migration Act 1958. The Tribunal had not notified me in writing the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment on it.
Section 424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”) contains an obligation to give the applicant “particulars of any information” that would be the reason for affirming the decision, rather than an obligation to notify the applicant of the reasons for the decision in advance of handing down the decision.
As the Tribunal's findings show, in reaching its decision the Tribunal relied upon general information about Falun Gong and evidence given by the applicant to the Tribunal at hearing. Accordingly, this information falls within the exceptions set out at ss.424A(3)(a) and (b). Therefore this ground cannot be sustained.
Ground 3
The Tribunal failed to refer to relevant independent information for the consideration of my application.
The Tribunal referred to country information relevant to the practice, philosophy and history of Falun Gong in China.[7] The applicant does not particularise what independent information he considered was relevant and was not referred to by the Tribunal, and it is noted that he did not submit any country information to the Tribunal. In any event, it is submitted that any such failure would not amount to a jurisdictional error, as the Tribunal was not required to consider any, or any particular, country information (NAAX v Minister for Immigration (2002) 119 FCR 312 at 333).
Additional ground
The applicant raises a further ground in his affidavit accompanying the application, asserting that the Tribunal failed to consider the claims in his application. No particulars are given as to the claims the Tribunal is alleged to have failed to consider and the reasons for decision speak to the contrary. Without more, this ground cannot succeed
[7] RD at 77-78
In terms of the amended application, the applicant asserts bias, but there is nothing to support that allegation. The applicant asserts a breach of s.424A of the Migration Act, but acknowledges that the only information before the Tribunal was that contained in the Minister's file and the information given to the Tribunal by the applicant. There was no requirement under s.424A for the Tribunal to disclose to the applicant the information he himself gave to the Tribunal for the purposes of the review. Neither in the circumstances of this case was there any obligation on the Tribunal to disclose to the applicant the information he had provided to the Minister's Department. There was no inconsistency between the information given to the Department and that given to the Tribunal that was material to the outcome of the review application. The applicant was simply not believed. I see no arguable case of jurisdictional error in the Tribunal decision.
I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,100. Scale costs in this instance would be $2,500. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the amount of $2,100.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 March 2008
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