SZMOB v Minister for Immigration
[2008] FMCA 1597
•11 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMOB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1597 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s findings of fact not reviewable in judicial review proceedings – no breach of s.424A of the Migration Act 1958 proved – Tribunal’s conclusion on the merits of the review application before it not reviewable in judicial review proceedings. |
| Migration Act 1958, ss.424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZMOB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1899 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 November 2008 |
| Date of Last Submission: | 11 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1899 of 2008
| SZMOB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where he claims he was a Falun Gong practitioner. He claims to fear persecution in China because of his belief in Falun Gong. He arrived in Australia on 15 December 2007.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 6 March 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 6 of the Tribunal’s decision (Court Book (“CB”) pages 67 – 69). Relevantly, they are in summary:
In a statement attached to his protection visa application, the applicant claimed he was introduced to Falun Gong through a friend in 2000, that the practice improved his health problems and that subsequently he became a devoted believer and often practised at home. He claimed he was arrested by the police and detained for two months and tortured because of his Falun Gong practice. After he was released he was supervised by police who often came to check on him and he could not enjoy a normal life. He obtained his passport and travelled to Australia with the help of a friend. Later, in his evidence at the Tribunal hearing, the applicant said that his friend prepared this statement for him and he did not know what was contained in it.
The applicant appeared before the Tribunal to give oral evidence and made the following additional claims:
a)he claimed that because of his Falun Gong practice, he had to leave his hometown and family and go to Shandong. He lived and worked with a friend there for four years and secretly returned to his hometown about four to five times;
b)he could not remember the date he went to Shandong but thought it was in 2003 or 2004. He said initially he went to Shandong because the local police asked him to go, but later clarified that he went because he secretly practised Falun Gong at home;
c)he could not remember when he commenced practising Falun Gong but it was roughly before he went to Shandong in 2003 or 2004. He practised by himself and in secret in his hometown;
d)the local police came to him while he was living in his hometown to talk to him about his Falun Gong practice. He did not know why they came to see him and thought someone may have reported him;
e)the applicant could not remember when this event occurred, and after being asked several times by the Tribunal he said he thought it was roughly in 2004;
f)when he was in Shandong he heard that the PSB came to his house on two further occasions;
g)while in Shandong, he practised Falun Gong sometimes but mainly worked and did not have time to practise Falun Gong. He claimed that he did not practise regularly, only once each month, or every 10 to 15 days;
h)he claimed he left China because the PSB came when he was not at home. His family told him and he ran away to Shandong;
i)he was never detained by the police; and
j)he did not know much about Falun Gong as he practised in secret and is scared the government in China will give him trouble.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept on the evidence available to it that the applicant was, or had been, a genuine Falun Gong practitioner either in China or Australia, or that he feared harm and left China for the reasons he claimed. The Tribunal made these findings as it did not find the applicant to be a witness of truth, noting that:
i)although the applicant named the five main Falun Gong exercises, he only did so after the Tribunal asked him a number of times what he knew about Falun Gong. The Tribunal was of the view that a genuine practitioner would have been able to describe more readily what he did to practise Falun Gong ;
ii)the applicant did not name the exercises in the manner of someone who had practised Falun Gong for the time he claimed and the Tribunal found he had not learned the names because he was or had been a genuine Falun Gong practitioner; and
iii)the applicant told the Tribunal he does not know much about Falun Gong and only practised when he was not working and not busy;
b)the Tribunal found that the applicant’s claim that he left China without difficulty, using a passport in his name obtained from his home area, was not consistent with his claims of persecution by the authorities. It was not satisfied with his explanation that he paid money to his friend to obtain his passport;
c)the Tribunal noted that the applicant claimed he fled his home and family in Hebei to live and work in Shandong as he feared harm as the PSB were looking for him, however he could not remember when that event took place. At this point I should observe that the Tribunal actually refers "PRC" rather than "PSB" and this must be accepted to be a typographical error. After some prompting from the Tribunal he said he thought it happened in 2004. Considering the seriousness of the applicant’s claims the Tribunal found that if this was a truthful claim he would have had a clearer recollection of when this occurred; and
d)the Tribunal found the applicant’s evidence that his family were not experiencing difficulties was inconsistent with this claims that he is of interest to the authorities and will be persecuted if he returns to China. Further, the Tribunal found that it was implausible that he could work and live and visit his family over four years in China in secret as he claimed.
Proceedings in this Court
The grounds of the amended application commencing these proceedings were pleaded as follows:
(1)The Tribunal made the decision to refuse my application based assumption that I was not a genuine Falun Gong practitioner. The decision was wrong. The Tribunal failed to consider the fact that I have participated in Falun Gong activities in Australia.
(2)The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. I lost the opportunity to comment upon it.
Today in his submissions the applicant also submitted that the Tribunal’s decision was not fair and that the Tribunal did not ask him questions about Falun Gong.
Failure to consider conduct in Australia
The first ground alleged in the amended application challenges the Tribunal’s finding of fact concerning the applicant’s adherence to and knowledge of Falun Gong. These findings, particularly as they were based on an assessment of the applicant’s credibility, are matters which the Court cannot review in judicial review proceedings.
As to the allegation that the Tribunal failed to consider the applicant’s Falun Gong activity in Australia, it is clear that the Tribunal did not ignore it. It makes reference to this evidence in its recitation of the facts and in its decision. However, this ground does not address the fact that the Tribunal’s decision was not based in whole or in part on the applicant’s conduct in Australia. Rather, the decision was based on the applicant’s ignorance of important Falun Gong practices and beliefs, his ability to leave China freely, the fact that his family’s life in Hebei province was unaffected by his alleged Falun Gong practices and the implausibility of his allegations concerning his own conduct in China.
For these reasons, the first ground pleaded in the amended application does not disclose jurisdictional error on the part of the Tribunal.
Breach of s.424A
The applicant has not identified what information should have been given to him for his comment and as an unparticularised allegation it therefore lacks substance. More importantly, however, a consideration of the Tribunal’s decision reveals that the information on which the Tribunal reached its decision was information which the applicant himself provided to the Tribunal during the course of its hearing.
Such information falls within the exception to the operation of s.424A(1) found in s.424A(3)(b). Consequently, the Tribunal was not in breach of the requirements of s.424A and the second ground pleaded in the application does not disclose jurisdictional error.
Merits Review
The applicant’s submission today, that the Tribunal’s decision was not fair, amounts to an impermissible invitation to this Court to review the Tribunal’s finding on the merits of the application before it. As has already been stated in these reasons, the Court cannot undertake a rehearing of the applicant’s application for a protection visa. Consequently, the claim which the applicant made today concerning the unfairness of the result does not amount to a basis upon which the Tribunal’s decision might be set aside.
Failure to apply correct test
In his submissions today the applicant also stated that the Tribunal did not ask any questions about Falun Gong. This submission must be taken to be an allegation that the Tribunal did not address itself to the basis of the applicant's claim to fear persecution. As the summary of the facts set out earlier in these reasons discloses, the Tribunal did address itself to the question of the applicant’s Falun Gong practice and adherence, and addressed these issues during the course of the hearing it afforded the applicant.
The applicant has made no challenge to the accuracy of the recitation of facts set out in the Tribunal’s decision record nor has he adduced any evidence which would cast doubt on the accuracy of that decision record. For these reasons, the final matter asserted by the applicant during the course of submissions today does not disclose jurisdictional error on the Tribunal’s part.
Conclusion
For all these reasons, the application has been unsuccessful and will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 26 November 2008
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