SZQKV v Minister for Immigration

[2012] FMCA 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKV v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 126

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal did not accept the applicant’s claims.

Migration Act 1958, s.474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZQKV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1466 of 2011

Judgment of: Cameron FM

Hearing date: 21 February 2012

Date of Last Submission: 21 February 2012

Delivered at: Sydney

Delivered on: 21 February 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1466 of 2011

SZQKV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 22 June 2007 on a student guardian visa. On 1 February 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship alleging that he feared persecution in China because of his Falun Gong affiliations. His daughter, with whom he had arrived in Australia, was included in that application as a member of his family unit.

2. On 21 March 2011 a delegate of the first respondent (“Minister”) refused the applicant’s application for a protection visa. The applicant then applied to the second respondent (“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.

3. 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; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-8 of the Tribunal’s decision.

2. The applicant was interviewed by a departmental officer on 18 March 2011 at which point he made the following claims:

   a)in March 2008 he met some Falun Gong practitioners in a park. One of them, Ms Wang, was willing to help people like him who had recently arrived in Australia and he got to know her as a result;

   b)he saw them practising Falun Gong every morning and knew that it was beneficial for one’s health and personal life. However, he did not practise Falun Gong himself; and

   c)he feared that he would face persecution in China because he had mingled with Falun Gong practitioners.

3. At the Tribunal hearing on 14 June 2011 the applicant also claimed that:

   a)he feared that he would have problems if he returned to China because of his support of Falun Gong;

   b)he did not practise Falun Gong because he could not get up early enough to do the exercises;

   c)he helped distribute Falun Gong newspapers but had not been involved in any other Falun Gong activities; and

   d)people in Australia might gossip about him when they returned to China and the authorities might come to know of his support for Falun Gong.

The Tribunal’s decision and reasons

1. 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”).

2. The Tribunal accepted that the applicant had met and remained acquainted with a Falun Gong practitioner in Australia. It also accepted that he had distributed Faun Gong newspapers. However, the Tribunal found that the chance of him being seriously harmed if he returned to China because of his association with and support of Falun Gong practitioners was no more than a remote possibility. The Tribunal noted the following in this connection:

   a)although he associated with Falun Gong practitioners, the applicant did not claim to be a practitioner himself;

   b)apart from distributing newspapers, he had not been involved in any other activities on behalf of Falun Gong, whether private or public;

   c)although he might have been a supporter of Falun Gong, he was not, in the Tribunal’s view, a committed supporter because he did not seek to practise the exercises or learn more about Falun Gong beliefs. His lack of commitment was also illustrated by his statement that he did not wish to get up early in order to practise the exercises with other practitioners;

   d)while the Tribunal accepted that the applicant supported everyone’s right to freedom of belief, it was not satisfied that he would demonstrate his support in a public manner;

   e)he did not submit evidence of any action taken by him in opposition to the Chinese authorities on any issue in the past and there was no evidence before the Tribunal that he would begin any anti-government activities if he returned to China; and

   f)he was unable to specify who might report him or how or when this might be done and did not provide any evidence of having been threatened or warned by anyone because of his association with Falun Gong. In addition, he had not been publicly critical of the Chinese authorities about their treatment of Falun Gong practitioners or for any other reason. The applicant’s fear of being reported was mere speculation.

Proceedings in this Court

1. The grounds of the application commencing these proceedings were pleaded as follows:

   1.I got to know Ms Wang who is a Falun Gong practitioner. I support Falun Gong and helped distribute Falun Gong newspapers. I mingled with Falun Gong so I fear to be persecuted if returned to China. The Tribunal didn’t accept my claims. The Tribunal made jurisdictional error in his decision.

2. The applicant’s allegation is that the Tribunal did not believe his claims. However, although in large part it did, the Tribunal was not obliged to accept what the applicant told it. The applicant has not pointed to any error of a legal nature which would invalidate the Tribunal’s conclusions. Instead, he has, in his submissions to the Court, reiterated his desire to stay in Australia and his claim to fear returning to China. That is to say, the applicant invites the Court to reconsider the Tribunal’s decision on the merits of its claim, something which it is not empowered to do.

3. The Tribunal’s findings were open on the evidence and provided a sufficient basis for its further conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason. Having reached that conclusion, the Tribunal was obliged to affirm the delegate’s decision. Nothing in the application made to the Court or in the applicant’s oral submissions made in support of the relief sought disclose relevant error on the Tribunal’s part.

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

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

Date: 29 February 2012