SZMKO v Minister for Immigration - [2008] FMCA 1573

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1573

MIGRATION – Review of decision of RRT – where applicant failed to satisfy the Tribunal.

Migration Act 1958, s.65

SZGZQ v Minister for Immigration [2007] FCA 62
SZIFB v Minister for Immigration [2007] FCA 1727

Applicant:

SZMKO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1558 of 2008

Judgment of:

Raphael FM

Hearing date:

12 November 2008

Date of Last Submission:

12 November 2008

Delivered at:

Sydney

Delivered on:

12 November 2008

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondent:

Ms A Mitchelmore

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1558 of 2008

SZMKO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 18 December 2007. On 21 December 2007 he applied to the Department of Immigration and Citizenship for a protection class (XA) visa. On 31 January 2008 a delegate of the Minister refused to grant him a protection visa. On 29 February 2008 the applicant applied for a review of that decision by the Refugee Review Tribunal. He attended a hearing before the Tribunal which, on 14 May 2008, determined to affirm the decision under review. It handed that decision down on 22 May 2008.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was based upon him being an adherent of the Falun Gong movement. He claims that he learnt about Falun Gong from his mother, who in 1997, was suffering from an illness and had received a considerable amount of medical treatment in hospital.
She began to practise Falun Gong on the advice of the applicant's sister's mother-in-law and the applicant's mother received substantial health benefits from doing so. In 2005 the applicant himself began to practise Falun Gong at the instigation of his mother. At the time he had problems with gambling and drinking and the practise of Falun Gong assisted him to overcome these temptations.
The applicant claimed that on 6 July 2007 he was reported by a neighbour practising Falun Gong at home. He was visited by the police. He said that the police forced him to give up his job because of his practice of Falun Gong. He did not wish to give up Falun Gong, he wished to continue to practise, so arranged to come to Australia where he believed that he would be allowed to do so.
At the hearing before the Tribunal he was questioned about his concerns as to the harm that would befall him should he return to China. He said that he feared for his personal safety and that because he was a Falun Gong follower he would be attacked by others. The Tribunal questioned the applicant upon his practise of Falun Gong in Australia, he told the Tribunal that he had done so once or twice with other disciples and had practised at home.
The Tribunal asked him some questions to ascertain his knowledge of the Falun Gong movement and its practices. He was able to answer some of the questions asked by the Tribunal but was unable to answer others, he was unable to explain the concept of the Falun. He said he only performed one of the exercises of the five nominated by the Master which was sitting meditation. He claimed that this was the first exercise but the Tribunal noted that it was the fifth. He said that he had been taken to a detention centre and beaten after his arrest. The Tribunal has asked the applicant some other questions about his situation:
“He said he had many problems in China and these could not be controlled. The Australia government accepted refugees and had to accept people like him. Regardless of doubts about him, he would be a good citizen if he was allowed to stay in Australia. I explained to him that the role of the Tribunal was restricted to assessing his claim to be a refugee. Asked if there were any other comment he wished to make the applicant said he was heavily in debt. He confirmed that his debt was owed to a people smuggler, (or snakehead) and said he owed this person nearly one million RMB.”
The Tribunal considered some Independent Country Information concerning the Falun Gong movement and in his findings and reasons at [CB 79] said:
“In the present case the Applicant's claim to fear harm in China rests solely on his claim to be a Falun Gong practitioner. … His claim is unsubstantiated from any source in China or in Australia and amounts to no more than a set of simple assertions. His written account of his involvement with Falun Gong, in his protection visa application and the statement accompanying his review application, is brief and vague. His oral evidence at the hearing was no more helpful and revealed an ignorance of fundamental aspects of Falun Gong practice, such as the nature of the Falun and the importance of the five fundamental exercises. If, as he claims, the Applicant had been a Falun Gong practitioner who had been punished for this reason and who had fled China so that he could practise his Falun Gong faith in freedom, it could reasonably be expected that he would be able to speak about the faith in some detail and that he would know at least basic facts about his practice. Instead, his evidence gave no indication of any detail or first hand knowledge of Falun Gong and no indication that he has ever practised it, either in China or in Australia.
On the basis of all the information before the Tribunal I am not satisfied that the Applicant is a Falun Gong practitioner or ‘disciple’ or that he has ever had any first-hand experience of the Falun Gong faith.”
In his application to this court filed on 18 June 2008 the applicant claims that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. He says in his grounds of application:
“(1)I am practising Falun and China government is trying to arrest me, I cannot go back to China.
(2)The RRT decision refused my protection visa and I have hardship to go back to China. Therefore, I lodge appeal to Federal Magistrates Court.”
Before me today the applicant said that he applied for refugee status but he could not understand what the RRT had said to him. He was newly arrived and he did not know anything about the RRT, he did not know how to express his opinions. He said he was telling the truth and he did not understand how his case could have been rejected by the Tribunal. He thought the Tribunal was unfair to him in rejecting him.
The two grounds of application are not matters which raise any question of jurisdictional error and a consideration of the Tribunal's decision indicates that it is based upon a failure to be satisfied, as required by s.65 of the (the “Act”) that the applicant was a person to whom Australia owed protection obligations.
The approach adopted by the Tribunal seems to me to be consistent with that described by Greenwood J in SZGZQ v Minister for Immigration [2007] FCA 62 at [13-14]:
[13] It is clear from a consideration of the facts and the approach adopted by the Tribunal in reaching its conclusions on those facts that the Tribunal has approached the exercise of the review on the footing that the legislation (s 65(1)) requires the Tribunal to refuse the Appellant’s application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established. The Tribunal has correctly approached its task by determining that if it is unable to be satisfied of those matters, the Tribunal must ‘refuse to grant the visa’ (s 65(1)(b)).
[14] The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 255 at [15], per Ryan, Jacobson and Lander JJ; Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], per Black CJ, Sundberg and Bennett JJ.
In SZIFB v Minister for Immigration [2007] FCA 1727 Jacobson J opined at [10]:
“As the learned Federal Magistrate observed, the Tribunal was unable, upon the material before it, to reach the necessary state of satisfaction. It was therefore bound to refuse to grant the visa.”
The Tribunal in the instant case has followed appropriate procedures in conducting its review, the applicant was provided with the opportunity to attend a hearing and did so, he was provided with an opportunity to put forward his case for being a person to whom the protection obligations could be extended and he did that. As I understand it he does not complain about the quality of the interpretation but more about his failure to understand the import of the questions being asked of him. But he did have the advantage of a migration consultant, although that consultant was not present at the hearing so far as I understand, and if he felt that he had been misunderstood or misrepresented at the enquiry he could have reported the matter to his consultant and that consultant could have written to the Tribunal prior to the decision being handed down. None of this occurred. In all the circumstances I am unable to see that the decision of the Tribunal was made in error let alone in jurisdictional error.
I dismiss the application. I order that the Applicant pay the First Respondent’s costs assessed in the sum of $3,500.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: