SZNVM v Minister for Immigration - [2009] FMCA 1267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNVM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1267

MIGRATION – Review of RRT decision – applicant a citizen of China – where applicant’s grounds of review not particularised and essentially seeking merits review.

Migration Act1958 (Cth) ss.91R(3), 422B, 424A

Applicant:

SZNVM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1967 of 2009

Judgment of:

Raphael FM

Hearing date:

14 December 2009

Date of Last Submission:

14 December 2009

Delivered at:

Sydney

Delivered on:

14 December 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1967 of 2009

SZNVM

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

2 February 2009 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 16 March 2009. On

12 May 2009, after an interview, the delegate refused to grant a protection visa and, on 4 June 2009, the applicant applied for review of that decision from the Refugee Review Tribunal.
On 19 June 2009 the Tribunal wrote to the applicant a letter inviting her to comment on or respond to information that the Tribunal considered would, subject to any comments she may make, be the reason or part of the reason for affirming the decision that was under review. The applicant responded to that letter on 14 July 2009. The applicant attended a hearing before the Tribunal which, on 17 July 2009, determined to affirm the decision not to grant a protection visa.
The applicant’s ground for claiming that she was a person to whom Australia owed protection obligations arose out of her practice of and adherence to Falun Gong. The applicant told that she had come to this movement after 2005. In that year her father who had been in poor health had taken up the practice and had improved to the extent that his disease was cured. The applicant and her father practised Falun Gong in their home town but in December 2005 they were arrested by the PSB. She was detained and questioned for about 24 hours. She was not given any coat or food. Her father was beaten and transferred to a detention centre where he stayed for a few days during which time he could not be visited. The applicant herself was fined 3,000.00 RMB. Her father was released on the payment of a bribe.
The applicant and her family moved from her original home to Guangzhou and then to Shenzhen. She appears to have travelled around the region. In 2008 the applicant learned about Australia and the freedom to worship that existed in this country. She and her husband saved up money and obtained a ticket and a visa for her. Her father was unable to go because there was only enough money for one person and his health was poor. The applicant told that whilst in Australia she practised Falun Gong regularly.
In its findings and reasons, which commence at [CB 126], the Tribunal explains why it came to the view that the applicant’s evidence lacked credibility. The Tribunal felt that the applicant was often evasive and that it had been required to repeat its questions several times to elicit her responses. It found some of her evidence implausible. The Tribunal felt that the applicant failed to provide details of her residences and of her employment and gave various explanations why this had not been done in the various forms she had completed and in the interviews she had attended.
The Tribunal noted that the applicant had originally said that Falun Gong had been banned in 1996 but had got the day and the month right being 10 June. The Tribunal was not impressed by the applicant’s response that she was nervous and thus had forgotten the correct date of 1999. The Tribunal thought it was implausible that the local authorities in her area would take no notice of Falun Gong practitioners over five years after the banning of the sect which is what her evidence that she and her father had taken it up with local people in 2005 would appear to suggest.
The Tribunal had other concerns about her evidence relating to the finding of a Falun Gong practitioner in her local area and the arrest and detention of her father. It thought that her evidence about her practising Falun Gong at home was confused and pointed out inconsistencies between various statements that she had made regarding this. It had the same views about her evidence concerning her arrest. Whilst the Tribunal was not concerned about the fact that the applicant had not applied for asylum in any of the countries she had visited, it did express concern that she did not even consider seeking protection and gave as a reason that the practice of Falun Gong was not widespread in these countries. The Tribunal found it difficult to understand why she would prefer to return to China where she dare not practise at all.
The Tribunal made reference to the late production of a document which appeared to verify the fact that she had been the subject of administrative detention and a fine. The Tribunal said in regard to this:
“The Tribunal is of the view that if the document did exist at the time when the applicant applied for her protection visa and if the applicant was aware of its existence the applicant would have presented the document at an earlier time. The fact that she did not together with the fact that the Tribunal found the applicant to have been untruthful in her evidence and having regard to the information cited above concerning the widespread availability of fraudulent documents caused the Tribunal to find that this document is not a genuine document.”
The Tribunal gave some consideration to the applicant’s practice of Falun Gong in Sydney. It accepted that she had some knowledge of Falun Gong, was able to perform one of the exercises correctly, but, having concluded that she had no involvement with and no interest in Falun Gong in China, determined that any practice by her of Falun Gong within Australia was only for the purpose of strengthening her claim to be a refugee. Thus the effect of the practice within Australia was disregarded pursuant to s.91R(3) of the Migration Act1958 (Cth) (the “Act”).
On 17 August 2009 the applicant filed an application with this Court seeking review of the decision of the Tribunal. She had three grounds of application. The first was:
“I cannot go back to China. I will be persecuted by the Chinese Government.”
This is not a ground which indicates any jurisdictional error on the part of the Tribunal and it is thus not a matter which this Court can consider.
The second ground is:
“RRT considered my case unfairly. They doubt my claim without substantive evidence.”
The applicant does not particularise the unfair manner in which the Tribunal considered her case. The Tribunal has considerable discretion in the manner in which it deals with applicants and is bound by the code set out in s.422B of the Act and the following subsections. I have read the Tribunal’s decision carefully. It is a very detailed one. It seems to reproduce the debate between the Tribunal and the applicant and it comes to a logically expressed view based upon available evidence.
The applicant’s responsibility in matters of this nature is to satisfy the Tribunal that she is a person to whom Australia owes protection obligations and only if that occurs can the Tribunal grant a visa. It is the strength of the applicant’s evidence that is important because the Tribunal is not in the position of a contradictor and so it does not have to produce substantive evidence to rebut the applicant’s claims. It is for the applicant to provide the substantive evidence that those claims are genuine and bring her within the Convention. I am satisfied that the Tribunal gave proper consideration to the applicant’s claims and thus this ground cannot be sustained.
The third ground that the applicant asserted was:
“Procedural fairness has been denied by RRT.”
Once again there are no particulars. I have already said that the Tribunal’s requirement to provide the applicant with procedural fairness is that set out in the Act. I have noted that the Tribunal wrote to the applicant pursuant to s.424A of the Act prior to the hearing and that the applicant responded. There was no obligation to write under s.424A. If the applicant is complaining about the Tribunal’s rejection of her documentary corroborative evidence, I am satisfied that this was considered appropriately in the light of independent country information and the conclusion reached about it by the Tribunal was available to it.
The applicant appeared before me today. She told me that she did not think that the Tribunal had considered her case in a fair manner and that she was very upset because all the documents that she had submitted were true documents but that the Tribunal thought that they were fake and she was very upset about this. I understand that the applicant may feel aggrieved that her submissions and her evidence were not accepted but this is a task that falls to the Tribunal and it is not open to this Court to substitute its views of the applicant’s claims for those of the Tribunal.
The applicant told me that she would like the Australian Government to give her a chance and allow her to stay here because Falun Gong practitioners are not protected or respected in China and that if she stayed here she could practise Falun Gong freely. I understand that request but it is one that only the Minister can grant and I am therefore unable to provide the applicant with the review she seeks. The application is dismissed. I order that the applicant pay the first respondent’s costs, which I assess in the sum of $3,800.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 17 December 2009