SZLYK v Minister for Immigration
[2008] FMCA 1143
•6 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1143 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZLYK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 274 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $2,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 274 of 2008
| SZLYK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 8 January 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in July 2007 and applied for a protection visa. She claimed to fear harm from the PRC authorities as a Falun Gong practitioner. She claimed that she had experienced persecution from the Chinese government and that she had come to Australia via Singapore having not been allowed to stay in Singapore.
The applicant claimed that she began practising Falun Gong in 2000 or 2001 and that she had been detained in the People's Republic of China on two occasions. She claimed she was first detained less than six months after she commenced practising Falun Gong, although she could not remember the date. She claimed that she had been detained on a second occasion for about a month around the end of 2001. The applicant also claimed that her husband and his family were Christian.
In its reasons for decision the Tribunal detailed the evidence the applicant gave at the hearing, in particular her responses to questioning in relation to her knowledge and practice of Falun Gong, its observations when the applicant was asked to perform various exercises and her explanations for her difficulty in performing aspects of those exercises notwithstanding that she claimed to have practised every day for the last seven years.
The Tribunal recorded the applicant’s evidence as to her practice of Falun Gong in Singapore where she lived for about two years between 2004 and 2007. She told the Tribunal that she had returned to China while living in Singapore on two or three occasions, including to participate in a marriage ceremony. She claimed that she had usually practised Falun Gong at home in secret. The Tribunal addressed her lack of knowledge as to any public Falun Gong activities in Singapore during the time when she was there and recorded that the applicant also claimed she practised at home with her sister in Australia.
The Tribunal recorded that it put a number of matters to the applicant in the course of the hearing about her knowledge of Falun Gong principles and the text ‘Zhuan Falun’ and set out her responses.
The Tribunal referred to independent country information in relation to the situation of Falun Gong practitioners and Falun Gong belief and practices. It accepted that the applicant was a citizen of the People's Republic of China, however it found that it did not otherwise believe the applicant was a “credible witness”. It believed that she had “fabricated her claimed association with falun gong in the PRC and subsequently” to support her claim for a protection visa.
While the Tribunal acknowledged that the applicant did possess some knowledge of Falun Gong practice and belief, it found that it was “not consistent” with her claimed practice of Falun Gong over a period of seven years. In particular it had regard to the fact that the applicant was unable to name the book ‘Zhuan Falun’, which was regarded as the core text of Falun Gong belief, and also that her knowledge of its contents was “very scant”, notwithstanding that she later claimed to have read it with her mother.
The Tribunal found that this text was so obviously central to Falun Gong beliefs that the name of it could be expected to stay with the applicant when she claimed to be able to selectively and spontaneously recall other elements of practice, such as the first exercise. It did not accept her claim of a loss of memory because of mistreatment at the hands of the Chinese authorities or trauma, finding this to be “simply an implausible attempt to explain obvious gaps in her knowledge of falun gong belief and practice”. It also found this to be evident in her presentation of exercises, which she claimed to have undertaken very regularly over seven years. It had regard to the fact that while she exhibited some knowledge of the exercises this was “very selectively demonstrated”, that when asked to demonstrate one exercise she asked to perform another and that while initially failing to recall the elements of one exercise she later recalled some of it.
The Tribunal concluded overall that the applicant had knowledge of Falun Gong practice which could be gained by gathering information from publicly available sources. It found the “selectivity of her knowledge” and “the evident gaps in her knowledge” were not consistent with one who had the “practice history and commitment” she claimed.
The Tribunal considered the applicant's claimed practice of Falun Gong in Singapore. It had regard to the fact she was completely unaware of public Falun Gong practice and events during her period of residence there, despite her claimed commitment. It did not accept her explanation that her practice in Singapore was restricted by her husband. It had regard to the fact that the events described were major events and campaigns for Falun Gong practitioners, such that she should have been aware of them. It found her claim that she would not be aware of them to be implausible.
The Tribunal also found that the applicant's travel pattern between Singapore to China between 2004 and 2006 indicated that her claims of fearing harm in China were “fanciful”. It had regard to her evidence that she returned to China on at least two, and probably three, occasions. It addressed that fact that her husband was with her in Singapore and her marriage registered there and yet she had returned to China in October 2006 for the purpose of holding a marriage ceremony. She did so notwithstanding that she claimed that she had been advised she should report to police, had failed to do so and the police had telephoned her parents to tell her to report and despite her claim to have experienced past detention and abuse at the hands of authorities.
The Tribunal found the applicant’s decision to return to China on at least two occasions, without any real necessity to do so, indicated that her claims of fear of police interest were not true. It found her explanation that she wished to see her parents and for them to witness her marriage was not a plausible reason for her to repeatedly risk her safety if she had genuinely believed she would be the subject of police interest on her return. It had regard to country information that the Chinese authorities regard Falun Gong practice as a significant threat to the country and would act harshly to discourage followers.
The Tribunal concluded that the applicant being aware that association with Falun Gong “could found a successful application for a protection visa, has simply fabricated a claimed association with falun gong in the PRC and Singapore for the purpose of seeking such a visa”. The Tribunal did not accept that the applicant had ever practised Falun Gong, subscribed to its beliefs or been of any interest to authorities in the PRC in this regard, that she had ever been harmed by the authorities, or that she genuinely held any such fear at the time of the decision or in the reasonably foreseeable future.
The Tribunal also addressed the claim that the applicant’s husband and his family were of the Christian faith. It noted that she had not advanced any case of harm arising from this, that she did not have any continuing association with him and that he was not presently living in China.
The Tribunal found that while there was some evidence that practitioners of Christian faiths in some circumstances in China could be of interest to the authorities, it found nothing in the applicant's claims which indicated she would suffer any harm arising from this on return to China in the foreseeable future. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations.
The applicant sought review by application filed in this Court on 7 February 2008. The application contains two general and unparticularised grounds. Despite being given the opportunity to do so after a directions hearing, the applicant did not file any amended application with particulars. Nor was she able to provide particulars of the grounds relied upon in the hearing today.
The first ground is merely a statement that: “The decision involved an important exercise of the power conferred by the Migration Act and Regulations”. It neither raises, nor establishes, jurisdictional error.
The second ground is that: “The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent”. The only issue raised by the applicant in oral submissions was the fact that the Tribunal had concluded that what she said was false. She asked rhetorically what kind of evidence did the Tribunal have to say that she was not a genuine Falun Gong practitioner or not telling the truth.
In so far as this may be taken as a contention that the Tribunal was under an obligation to accept the applicant’s claims or as a suggestion that the proceedings before the Tribunal were adversarial, as pointed out by Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]: “Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.” The Tribunal must then decide whether that claim is made out (also see Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78], indicating that: “The function of the Tribunal … is to respond to the case that the applicant advances”). As Beaumont J stated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 the Tribunal is not required to engage in an uncritical acceptance of any and all allegations made by an applicant and it is not required to accept a claim merely because positive evidence to the contrary is absent.
The applicant's contentions in this respect do not establish jurisdictional error on the part of the Tribunal. The Tribunal was not obliged to accept the applicant's claims at face value. As submitted for the first respondent, no jurisdictional error is revealed in its approach or findings because the facts that the applicant put forward did not cause the Tribunal to be satisfied that she met the applicable criteria (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] – [16]).
The Tribunal’s findings in relation to credibility are matters for the Tribunal. The Tribunal's conclusion that the applicant was not a credible witness was open to it on the material before it for the reasons which it gave.
No error of law, let alone an incorrect application of the law to the facts, is apparent on the material before the Court. I note that in the affidavit the applicant filed annexing the decision of the Refugee Review Tribunal, she claimed that she did not want to go back to China. In so far as this and what she said to the Court today seeks merits review, merits review is not available in this Court.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful application should meet the costs of the respondent. The amount sought in this case is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 August 2008
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