SZOTJ v Minister for Immigration - [2011] FMCA 292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTJ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 292

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 425

Applicant:

SZOTJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2402 of 2010

Judgment of:

Barnes FM

Hearing date:

6 April 2011

Delivered at:

Sydney

Delivered on:

6 April 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

THE COURT ORDERS THAT:

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2402 of 2010

SZOTJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 8 October 2010. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in February 2010 and applied for a protection visa in March 2010. In essence, he claimed to fear persecution because he was a Falun Gong practitioner. His application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
In its findings and reasons the Tribunal set out in detail the written claims made in connection with the protection visa application, the evidence of the applicant at the Tribunal hearing and the issues that the Tribunal raised with the applicant.
It also referred to independent country information about the situation of Falun Gong practitioners in China and Chinese passports and exit procedures. The Tribunal summarised the applicant’s claim to fear persecution from the Chinese authorities because he was a Falun Gong practitioner, including his claim that he was arrested, questioned and detained for four months in 2008 for reasons of having Falun Gong materials at home and being involved in Falun Gong practice. It referred to his claim that he was released in June 2008 and thereafter required to report to the local police station each week and came to Australia because he could not tolerate the continued reporting and wished to practise Falun Gong in Australia.
It recorded that he claimed he had occasionally practised Falun Gong at public practice sites in Australia and feared that if he returned to China he may be detained again by the authorities.
However, the Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that he first became involved in Falun Gong practice in 1998, as he had claimed.
In addressing the applicant’s credibility the Tribunal found first that the evidence given by him was lacking in the type of detail the Tribunal would have expected he should be able to give about his claims of working as a process worker in a chemical factory for 17 years; about his claimed diagnosis in 1998 and 2007 of high levels of toxic chemicals in his blood; his hospital treatment for three months; and also about his involvement in Falun Gong practice and how he spent his time in detention for four months.
The Tribunal found that there was generally a rehearsed quality to the applicant’s evidence and that he had emphasised and repeated particular factual matters without context or depth. This is clearly a reference to his evidence at the Tribunal hearing. The Tribunal found, in contrast, that the evidence of the applicant relating to his concern for the economic burden he placed on his wife and daughter and how much he owed them was plausible and authentic.
The Tribunal referred to particular concerns relating to the inadequacy of the applicant’s evidence about his claims regarding his past employment and exposure to toxic chemicals and the fact that he was not able to provide a detailed description of the work he did; how he came into contact with chemical substances; or an account of his specific diagnosis or the medical treatment suggested in 1998, notwithstanding that he was a reasonably well-educated man who had completed an evening course in business and accounting in 1999.
While it acknowledged that the employment situation in China may be difficult at certain times and in certain industries, the Tribunal did not accept that if the applicant had been diagnosed with high toxic chemical levels in 1998 he would have remained in that job until 2007 without taking protective measures.
The Tribunal did not accept that the applicant’s evening course teacher had introduced him to Falun Gong in 1998 to improve his health as claimed. Nor did it accept that he practised at a public practice site a few times before the government cracked down on Falun Gong in 1999. The Tribunal referred to country information in relation to restrictions on the practice of Falun Gong in China, finding that the government action had a significant impact on Falun Gong practitioners with some giving up completely, and others hiding their practice at home. It had regard to the fact that at the hearing the applicant did not address this significant period or how it affected him, but had stated that after practising the exercises a number of times, his wife became pregnant and then he gave up after the crackdown.
The Tribunal also explained why it found the applicant’s account of his hospital treatment and his claims that he was sacked not to be realistic or plausible. It did not accept that the applicant, if he did lose his employment, lost it for the reason claimed by him.
The Tribunal did not accept that the applicant returned to Falun Gong practice after July 2007 having regard to a number of factors including: that he could not explain how he was able to acquire the knowledge or expertise to resume exercise or study the beliefs after such a long period from his last experience (some eight years earlier); and that while he claimed he had used a book called “Xin De”, which was only available in China, he had not explained where he obtained the book or how it assisted him in his practice. In that context the Tribunal referred to country information indicating that the public practice of Falun Gong and distribution of materials had been and continued to be, strongly suppressed by the Chinese authorities.
The Tribunal also had regard to the fact that the applicant had no mentor or teacher, stated that his attendance in 1998 and 1999 had been minimal, and that when questioned at hearing only had a superficial knowledge of Falun Gong practices and beliefs. The Tribunal gave examples of the limits on the applicant’s knowledge of Falun Gong practices and beliefs and went on to find that as it did not accept that the applicant resumed the practice of Falun Gong after July 2007, it did not accept that he was arrested, questioned and then detained in administrative detention for four months because he had been found with Falun Gong materials at home. It was of the view that had the applicant been detained for four months, he would have been able to give a more direct and detailed account of his time in the detention centre and not the vague overall account he had given. The Tribunal was of the view that the applicant was not able to give more detailed and direct evidence because he had not experienced the period of detention as claimed.
It followed from this that the Tribunal also did not accept that the applicant was required to report each week to the local police station and provide gifts to them. In this respect it also had regard to the fact that the applicant could not satisfactorily explain the basis of the claimed reporting requirements, whether it was to take place for a specified period of time and what happened when he did attend the police station. It found his evidence was lacking because he was not able to give a detailed and direct account on these matters and also that if he had been required to report formally, he did not satisfactorily explain how he was able to have his passport replaced in July 2009 and able to leave China without restriction or questioning in 2010.
The Tribunal addressed the applicant’s explanation that he paid money to a friend to obtain a passport, however, while accepting corruption was common in China and that low level officials may sometimes be bribed, the Tribunal considered it unlikely that if the police had required the applicant to attend for weekly reporting and demanded gifts that they would then have approved an application for a replacement passport. It also had regard to the fact that persons wanted by the authorities would probably be detected by the border police, as the authorities had access to a database connected to all border crossing points in Chinese international airports.
The Tribunal then addressed the applicant’s evidence, which it accepted, that he had attended public Falun Gong practice sites at Eastwood in Sydney from time to time. It had regard to his evidence that he did not know anyone at the public practice sites and that his attendance had not been regular. The Tribunal found that as it did not accept that the applicant had been a Falun Gong practitioner in China, it also did not accept that he had attended the practice sites in Australia out of genuine interest in the practice of Falun Gong. Rather it was satisfied he had done so for the purpose of strengthening his claims to be a refugee and disregarded this conduct.
The Tribunal did not accept that the applicant had left his “much loved family” in China because he feared detention or so that he could practise Falun Gong, which on his own evidence, was said to be mainly important to him because of its health benefits. It was of the view he had come to Australia to work and to improve his family’s economic situation and did not accept that he would practice Falun Gong if he returned to China now or in the foreseeable future. For all these reasons the Tribunal did not accept that the applicant faced a real chance of persecution for reason of his Falun Gong practice if he were to return to China now, or in the foreseeable future. It was not satisfied he had a well-founded fear of persecution for a Convention reason and affirmed the decision not to grant him a protection visa.
The applicant sought review by application filed in this court on 8 November 2010. There are three generally expressed and unparticularised grounds in the application. They are that the Tribunal applied the wrong test, that its decision was affected by jurisdictional error and that it acted in breach of the rules of procedural fairness and natural justice. The applicant did not file written submissions. When given the opportunity to expand on or explain these grounds in oral submissions today, he said that the Tribunal did not know the situation in China for him. He also claimed generally that he did not agree with the decision and that the Tribunal did not know how dangerous it was for him to return to China, and that if he went back to China his life would be threatened.
Insofar as the applicant takes issue with the factual findings of the Tribunal, he seeks merits review. As I endeavoured to explain to him, merits review is not available in this court. I have, however, considered the material before the court and the respondent’s submissions. I accept that, as the solicitor for the first respondent submitted, there is nothing in the material before the court to establish any jurisdictional error on the part of the Tribunal.
Specifically in relation to the applicant’s grounds, there is nothing in the material before the court to establish that the Tribunal applied the wrong test. On the contrary, in its reason for decision the Tribunal set out the relevant law and went on to apply it on the basis of its findings. Nor, insofar as that would constitute jurisdictional error, is there anything to establish that the Tribunal acted in breach of the rules of procedural fairness and natural justice. In particular, there is nothing in the material before the court to support any allegation of actual or apprehended bias insofar as the applicant’s disagreement with the Tribunal findings may be said to raise such a claim.
The Tribunal made findings based on its rejection of the applicant’s credibility in relation to his claims about events in China and also having regard to his lack of knowledge concerning matters fundamental to Falun Gong practice, as well as the absence of detail in his evidence and the rehearsed quality to his evidence. Such findings were open to it on the material before it for the reasons that it gave. I note that the Tribunal did accept that the applicant had attended Falun Gong practice sites in Australia, as he claimed, but in accordance with s.91R(3) of the Migration Act1958 (Cth) (the Act) disregarded the applicant’s conduct in Australia in determining his refugee claims.
There is nothing in the material before the court to suggest that the Tribunal failed to comply with its procedural obligations under Division 4 of Part 7 of the Act. No lack of procedural fairness or denial of natural justice is apparent on the material before the court. Nor is there anything in the material to suggest that any issue arose in relation to any obligation to comply with s.424A of the Act. The decision turned on the Tribunal’s assessment of the applicant’s oral evidence and independent country information.
Insofar as the applicant took issue with the Tribunal’s approach to the situation in China, I note first that independent country information is within the exception to the s.424A obligation (see s.424A(3)(a) of the Act). Moreover the Tribunal recorded that in the hearing it raised issues of concern with the applicant relevant to the situation in China, including country information in relation to his ability to depart China as well as other dispositive issues and discussed the possible application of s.91R(3) of the Act.
Although the delegate had accepted that the applicant had engaged in a limited period of Falun Gong practice, the delegate had also found that the applicant was not a genuine or committed Falun Gong practitioner, that he had no spiritual connection with the Falun Gong movement and would not practise Falun Gong in China and had a superficial knowledge of its principles. In those circumstances, having regard to the Tribunal account of the issues raised at the hearing, there is nothing to suggest that the Tribunal failed to comply with its obligations under s.425 of the Act to put dispositive issues to the applicant and nothing to suggest that the Tribunal failed to comply with any obligation under s.424A of the Act.
As no jurisdictional error has been established on any of the bases contended for by the applicant and nor is any jurisdictional error apparent on the material before the court, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The Minister seeks costs in the sum of $3,600. The applicant does not agree that an order should be made of this nature. However there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 28 April 2011