SZMZY v Minister for Immigration

[2009] FMCA 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZY v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 126

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.91R(3)

Applicant: SZMZY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3167 of 2008

Judgment of: Driver FM

Hearing date: 23 February 2009

Delivered at: Sydney

Delivered on: 23 February 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Crittenden
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3167 of 2008

SZMZY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. 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 Tribunal decision was made on 6 November 2008. 

2. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  The applicant arrived in Australia on 17 April 2008.  He applied to the Minister's Department for a protection visa on 1 May 2008.  The Minister's delegate refused that application on 15 July 2008.  The applicant sought review by the Tribunal on 12 August 2008.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  He accepted that invitation and attended on 5 November 2008.  He was assisted by a migration agent who did not attend the hearing. 

3. The Tribunal decision records that the applicant was questioned at length about his claims.  The applicant was not believed.  In particular, the Tribunal did not accept the applicant's claims in relation to why he was attracted to the practice of Falun Gong for health reasons as opposed to alternative treatments.  The Tribunal found that the applicant changed his evidence as he believed it was convenient to his case.  The Tribunal was also not satisfied that the applicant was detained in China as he had claimed.  It found his explanation for an incident of asserted harm to be not plausible.  The Tribunal did not even accept that the applicant was a Falun Gong practitioner in China or that he had been imputed with such practice in China in the past or that he would be imputed as a Falun Gong practitioner should he return to China. 

4. The Tribunal considered the applicant's claims to have practised Falun Gong in Australia. The Tribunal was not satisfied that the applicant's conduct in Australia, the fact of which the Tribunal appeared to have accepted, was engaged in for a reason other than to enhance his protection visa claims. The Tribunal accordingly disregarded that conduct as required by s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).

5. These proceedings began with a show cause application filed on 1 December 2008.  I incorporate in this judgment two grounds set out in that application:

   1. I was not considered fairly by RRT.  They did not weigh my evidence both here and in China.  RRT did not give me a letter to explain the doubts.

   2. Procedural Fairness has been denied.  RRT did not use favourable cases to my application.  RRT has no evidence to prove that I practised Falun Gong for the purpose of strengthening my claims.

6. The applicant was given the opportunity to file and serve an amended application, but he has not done so.  He relies on a short affidavit filed with his application which I accepted as a submission.  I received as evidence the court book filed on 9 January 2009 and the affidavit of Audrey Lizanne Echevarria which annexes an Australia Post registered post document verifying that the Tribunal's notification letter was despatched to the applicant the day after which it was dated (court book, page 95). 

7. There is no substance to either of the grounds in the show cause application.  The applicant asserts procedural unfairness, but his only complaint pursued in his oral submissions was that the Tribunal did not accept him as a genuine Falun Gong practitioner.  He appears to be of the view that anyone claiming to be a Falun Gong practitioner should be accepted as such.  The Tribunal decision discloses that the Tribunal engaged in an active intellectual process in considering the applicant's claims.  The Tribunal was not required to explain in writing its doubts about the applicant's claims in advance of its decision. 

8. Reference to the Tribunal not using favourable cases is mysterious.  To the extent that it refers to any reliance by the Tribunal on country information, the Tribunal was entitled to have regard to country information relating to the situation of Falun Gong practitioners in China and Australia.  It is not apparent to me whether the Tribunal did have regard to such information.  The Tribunal may not have felt the need to do so, given that the Tribunal did not accept the applicant as a genuine practitioner.

9. The Tribunal's references in its decision to the case law was appropriate to the matter that it had to resolve. The applicant's assertion that the Tribunal had no evidence to prove that he practised Falun Gong for the purpose of strengthening his claims misunderstands the Tribunal's task pursuant to s.91R(3) of the Migration Act. Once the Tribunal has determined that an applicant has engaged in relevant conduct in Australia, which this Tribunal must be assumed to have done, the Tribunal's task is then to consider the motivation for that conduct. The Tribunal is required to disregard that conduct unless satisfied by an applicant that it was engaged in for a purpose other than to enhance his protection visa claims. The Tribunal was not so satisfied and no arguable case of jurisdictional error is disclosed.

10. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Neither is any arguable case of error apparent to me from my own examination of the material. Accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

11. Costs should follow the event in this case. The Minister seeks an order for costs fixed in the scale amount of $2,500. The applicant maintains that the Tribunal decision is unfair and does not consider he should be liable to a costs order. Nevertheless, in consequence of my dismissal order, the Minister should receive a costs order. I see no reason to depart from the Court scale. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1B of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 February 2009