SZMIV v Minister for Immigration - [2008] FMCA 1438

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIV v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1438

MIGRATION – Review of RRT decision – where Tribunal disregarded applicant’s conduct pursuant to s.91R(3) Migration Act 1958 (Cth) – whether decision evidences bias – whether s.424AA Migration Act 1958 (Cth) complied with.

Migration Act 1958 (Cth) ss.91R(3), 424AA

Applicant:

SZMIV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1426 of 2008

Judgment of:

Raphael FM

Hearing date:

13 October 2008

Date of Last Submission:

13 October 2008

Delivered at:

Sydney

Delivered on:

13 October 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Ms Nolan

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1426 of 2008

SZMIV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 8 September 2007 and applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 20 September 2007. On 17 December 2007 a delegate of the Minister refused to grant a protection visa and on 17 January 2008 the applicant applied for a review of the delegate's decision from the Refugee Review Tribunal. The Tribunal wrote to the applicant advising him that it was not able to make a favourable decision on the information alone and invited him to a hearing. The applicant attended the hearing on 17 March 2008. On 28 April 2008 the Tribunal determined to affirm the decision not to grant a protection visa and that decision was handed down on 8 May 2008.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was that he was an adherent of Falun Gong. He claimed that on 19 June 2006 he was celebrating his birthday at his home. A friend gave him a CD and told him to look at it. The CD turned out to be a disk about Falun Gong practice. The friend suggested to the applicant that he take up this practice, which he did. He found it very beneficial for his health. He began to read books on Falun Gong.
The applicant said that on 20 April 2007 the local police came to his home and accused him of being associated with other Falun Gong practitioners. They searched his house and found the CD. He told them that he had obtained the CD before July 1999. He was taken to the local police station and beaten. His wife borrowed RMB 5000 and gave it to the local police chief and he was released. The applicant claimed that thereafter he lost his job and was unemployed. He decided that he should leave the country and arranged with a travel agent to join a group that was travelling to Australia on 8 September 2007. He said that whilst in the country he left the group and made his claim for protection. Since his arrival in Australia the applicant has taken part in Falun Gong activities and produced to the Tribunal some photographs of him protesting on behalf of Falun Gong practitioners.
Whilst the Tribunal found the applicant to have a reasonably good knowledge of the philosophy and practise of Falun Gong it did not believe that he was a genuine practitioner. The Tribunal was particularly concerned by the applicant's ability to leave China with such ease after he had been arrested and held for his Falun Gong activities. The Tribunal provided the applicant with independent country information concerning the emigration policies of the Peoples Republic of China and suggested that if he had been a person of interest to the authorities he would not have been allowed to leave so easily.
The Tribunal also put to the applicant the following [CB 109]:
“I put it to him that the tour operators who had arranged his tour had written to the Department and apologised to the applicant and 3 other persons leaving the tour group and not complying with their visit visa conditions. The tour group advised the Department that the applicant and three of his tour group colleagues had all worked in a real estate company in Shenyang and left the tour group together.
He told me that his papers were arranged by his friend and he had not worked for a real estate company in Shenyang because he had been unemployed when he left China ...”
The Tribunal took up with the applicant his practise of Falun Gong in Australia and explained to him the provisions of s.91R(3) of the Migration Act1958 (Cth) (“the Act”). The Tribunal also expressed concern that the applicant had left his wife and teenage child in China [CB 113]:
“At [the] hearing he expressed concern for the safety of his wife and child, then when it was put to him that the public practice of Falun Gong may have put them at some risk told me that Falun Gong practice was more important to him than their welfare. I do not accept this evidence and I consider that it has been given so that the applicant is able to justify his public practice in Australia despite his family remaining in China.”
The Tribunal in its findings and reasons did not accept that the applicant became involved in Falun Gong in June 2006 or that he had practised in China. It concluded that he was not of any adverse interest to the Chinese authorities because he was able to obtain his passport and leave the country. The Tribunal noted that the wife and child appeared to have a stable lifestyle unaffected by any inquiries or adverse treatment by state authorities and that was consistent with its finding that the applicant was not of any adverse interest to those authorities. The Tribunal found that the applicant came to Australia with a tour group with a clear intention of remaining in this country and that his account of how he left the tour group and arranged a job and accommodation in Sydney was implausible. The applicant had told the Tribunal that he had met a man at Circular Quay who just happened to be a Falun Gong practitioner from his home town and who gave him the name and address of another Falun Gong practitioner who would look after him. It was this evidence that the Tribunal found implausible.
The Tribunal also did not accept the applicant's claim that his position in China was such that he had no need to come to this country for economic reasons. The Tribunal found that those responses were at odds with the applicant's claim that he had lost his job as a result of his Falun Gong activities. The Tribunal applied s.91R(3) of the Act in regard to the applicant's activities in Australia, having come to the conclusion that these activities were indulged in solely for the purpose of enhancing his claim to be a refugee.
In his application the applicant cited three grounds. The first was that he was a genuine Falun Gong practitioner and had been practising for many years and was warned that he would be put in prison if he continued this activity. This ground is, of course, no more than a rehearsal of his claims to the Tribunal and is not a matter which goes to the jurisdiction of the Tribunal. The second claim was that he could not stop practising Falun Gong because it had helped with his health and he could not return to China because he was very scared of being sentenced. Once again this is an assertion of facts that the court cannot take into account. The third claim is that the applicant had been practising Falun Gong since his arrival in Australia and that the Chinese government will look for him if he returns because of that activity. The Tribunal did consider this matter but for the reasons given and set out in its decision determined that it could not take that activity into account.
Before me today the applicant said that he believed that the Tribunal was biased and made it difficult for him to succeed. He made reference to the question as to the choice between his family and Falun Gong. He felt that this question was unfair and would be difficult for any person to answer who had a genuine religious persuasion.
Although I sympathise with the applicant in regard to his complaints about this particular question which I think might not, with mature reflection, be entirely appropriate to put to a person whose knowledge of the English language is limited, I do not think that it evidences bias on the part of the Tribunal as that term is understood. I do not think that it is clear from the question that the Tribunal came to this hearing with a closed mind, nor do I consider that a member of the public sitting in the Tribunal with a reasonable understanding of the Tribunal's processes would come to the view that the question indicated that the Tribunal had a closed mind in relation to this particular applicant. Whilst the response that the applicant gave to the question was one of the grounds upon which the Tribunal disbelieved him it was not the only ground and it would not appear to be one of the principal ones.
Another matter upon which I had some concern was the questioning with regard to the other members of the tour group. It seems clear to me that the Tribunal must have had some information in its hand about this which it most certainly did not put to the applicant in writing, but it does appear from the statement made by the Tribunal at paragraph [32] of its decision [CB 106] that it gave the applicant the warnings contained in s.424AA of the Act and in the absence of production of a transcript by the applicant or any allegation that that subsection was not complied with, I am prepared to accept that it was.
In the end the Tribunal’s conclusion in this matter was that it could not come to the state of satisfaction that was required by the Act. None of the matters raised by the applicant in his application or in his statements to me today impugn that view. They went to the merits of his application and were a request that the court re-determine the application in a manner favourable to him.
In all the circumstances I am satisfied that there are no reviewable grounds of error in relation to this decision and I must therefore dismiss the application. I order that the applicant pay the respondent’s costs which, in view of the fact that this case has been before me twice now, I am prepared to assess in the sum of $5000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 17 October 2008