SZROP v Minister for Immigration - [2013] FMCA 212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROP v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 212

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

Migration Act 1958 (Cth), s.425

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

Applicant:

SZROP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1353 of 2012

Judgment of:

Barnes FM

Hearing date:

4 March 2013

Delivered at:

Sydney

Delivered on:

4 March 2013

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1353 of 2012

SZROP

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 29 May 2012. The Tribunal affirmed a 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 September 2011 and applied for protection in October 2011. His application was refused and he sought review by the Tribunal. In essence, he claimed to fear persecution on the basis of his adherence to Falun Gong and because he had left China illegally.
The Applicant told the Tribunal that he became aware of Falun Gong in 2001. He commenced practising Falun Gong at that time, initially in people’s homes with other practitioners. He claimed that in 2002 he was arrested with 10 others while practising Falun Gong, detained in a detention centre for several months and released after his wife paid bail. He claimed that after his release the village head confiscated some of his land. He went to work in different locations. He returned home in 2004 or 2005 and claimed he was arrested again in March 2005 because he was a Falun Gong practitioner. He claimed he spent about a year in detention and was released after his wife paid a sum of money. He claimed that after this detention he realised he could not stay in China.
In September 2006 the Applicant left China and joined a tour which happened to go to New Zealand. He spent seven days in New Zealand, but did not claim protection there. On the way back the group had a stopover in Korea, during which time he left the group and contacted a co-practitioner. He stayed there illegally until 2010. He claimed he continued to practise Falun Gong in Korea. Subsequently he returned to China to renew his passport and then travelled to Australia.
In its reasons for decision the Tribunal set out in detail the claims made by the Applicant in connection with his protection visa application, at a departmental interview, and at the Tribunal hearing. The Tribunal account is the only evidence before the Court of what occurred at the Tribunal hearing.
The Tribunal summarised the Applicant’s claims to fear persecution based on his practice of Falun Gong and fleeing from China on two occasions. The Tribunal assessed the Applicant’s claims as based on the Convention grounds of religion or political opinion. However for reasons which it gave the Tribunal did not accept the Applicant’s claims that he was a Falun Gong practitioner in China, Korea or Australia or that he otherwise had a well-founded fear of persecution for a Convention reason.
The Tribunal found that the Applicant had little knowledge about Falun Gong. The Tribunal referred to the fact that “[d]uring the hearing [it had] asked the applicant on a number of occasions about his beliefs as a Falun Gong practitioner and what his practice involved”. It found his “evidence regarding Falun Gong was extremely limited and vague”. Given the length of the time the Applicant claimed to have practised Falun Gong, including four years in Korea, the Tribunal considered he “would be in a position, notwithstanding his educational background, to know more about Falun Gong than the five exercises”.
While the Tribunal accepted that the Applicant had mentioned the three principles of Falun Gong, it found he “was not able to convey much detail about how the principles related to other Falun Gong beliefs and his overall practice of Falun Gong” and that his “knowledge of the practice of Falun Gong was restricted to an awareness of the five exercises”. The Tribunal took into account the Applicant’s evidence that he was not an educated man, but also had regard to the fact that, in conflict with the principles of Falun Gong, he had not attended any study groups during the four years he was in Korea. The Tribunal also had regard to the fact that the Applicant claimed to have only recently joined an Australian Falun Gong practice group. It considered the various reasons he had given as to why he did not join such a group shortly after his arrival in Australia, including that he could not find a group, that his work commitments prevented him from participating in Falun Gong practices, or that he would have to pay a donation to do so. The Tribunal concluded that the Applicant had “made no attempt to locate and participate in a Falun Gong group until after the … delegate pressed the point about [his] non-attendance” at Falun Gong activities. It was of the view that his subsequent claims about such attendance were “an attempt to rectify that aspect of his claims”. It did not accept that the Applicant did attend a Falun Gong group in Australia as claimed, given his “vague evidence about his current practice” and the fact that he did “not personally know any of the other practitioners, except the possible name of one of them”.
The Tribunal also had regard to the Applicant’s failure to seek protection while in New Zealand. It considered, but did not accept, the difficulties that he suggested had prevented him from seeking asylum. It also had regard to his failure to claim protection in Korea and his inconsistent evidence in that respect. It found his evidence as to why he did not claim such protection was implausible. It accepted the applicant lived in Korea illegally from 2006 to 2010, but did not accept that he made any attempts to seek protection in Korea on the basis of his claimed Falun Gong practice.
The Tribunal also had regard to the fact that the Applicant returned to China voluntarily in 2010. Given that he “was under no imminent threat from the Korean authorities, [it did] not accept that it [was] plausible that the applicant would have voluntarily returned to China if he feared persecution upon his return”.
The Tribunal acknowledged that some of these reasons when looked at in isolation, such as his return to China in 2010, did not necessarily demonstrate that the Applicant did not practise Falun Gong. However the Tribunal concluded that the combination of these factors led to the conclusion that the Applicant did not practise Falun Gong and had never experienced any harm because of any claimed Falun Gong practice. It stated:
The lack of knowledge of Falun Gong, combined with not attending a public practice, combined with not seeking protection in Korea and New Zealand combined with voluntarily returning to China point to a scenario whereby the applicant has never practiced Falun Gong.
The Tribunal found that the Applicant was not a genuine Falun Gong practitioner. Accordingly, it did not accept his claims about detention and confiscation of his property, or that he would practise or be involved with Falun Gong in China in any way on his return. Hence it did not accept there was a real chance he would be persecuted for reasons of actual or imputed practice of, or involvement in, Falun Gong in China.
The Tribunal also considered the Applicant’s claims about fearing persecution because he had fled China to South Korea when in transit from New Zealand and had also come to Australia. However, having regard to his return to China without difficulties and the absence of any arrest or questioning, the Tribunal was of the view that the “authorities appeared to be uninterested about his time in Korea”. Insofar as the Applicant’s evidence indicated on its face that he feared harm in his local area, the Tribunal observed that he had stayed for a year in a town about 70 kilometres away from his home area and had not had any serious trouble at the airport or experienced any incidents. In any event, the Tribunal did not accept these claims. It found that the Applicant had no such fears and that this claim had been added at the suggestion of his agent and not raised at the hearing until prompted by the Tribunal. The Tribunal was of the view that “if the Chinese authorities were interested in the applicant for fleeing to Korea he would have been detained at the airport on his return home by the “anti border crossing unit””.
Nor did the Tribunal accept that the Applicant would face persecution because he had fled to Australia given that he had “no particular profile”. Having regard to the country information there was said to be no real chance he would suffer any form of harm on return to China for fleeing to Australia.
The Tribunal also considered but found that the Applicant did not meet the complementary protection criteria. It affirmed the delegate’s decision.
The Applicant sought review by application filed in this court on 21 June 2012. There are three generally expressed and un-particularised grounds in the application. The Applicant did not file written submissions, but made oral submissions.
It is convenient to consider first an issue raised for the first time in the Applicant’s oral submissions which was not clearly raised in his application for review. The Applicant took issue with what he said was the failure of the Tribunal at the Tribunal hearing to ask him many questions about his knowledge of Falun Gong.
When I endeavoured to clarify whether the Applicant’s concern was with the accuracy of the Tribunal’s account of the hearing or with the extent of the Tribunal questioning, he indicated that his concern was that he had applied for protection because he was a practitioner of Falun Gong but the Tribunal did not ask him many questions about Falun Gong at all. He did not take issue with the accuracy of the Tribunal’s account of what occurred at the Tribunal hearing.
Such contention does not establish jurisdictional error on the material before the court. First, it appears from the Tribunal reasons for decision, including its account of what occurred at the hearing, that it clearly raised with the Applicant the issue of his knowledge and practice of Falun Gong, both overseas and in Australia. The Tribunal recorded that it asked the Applicant about his current Falun Gong practice in Australia, which he described. It also asked him about why he had only commenced practicing Falun Gong in public in the last few months given the time he had been in Australia and set out in some detail his explanations in that respect. It also asked if there were any practitioners in Australia who could verify that he was a Falun Gong practitioner. It recorded his response that he could not recall the names, except he knew one named man by sight.
The Tribunal also recorded that it asked the Applicant about Falun Gong, discussed the exercises and his knowledge of Falun Gong principles, recorded his explanations for his limited knowledge, his evidence when asked about whether he had attended study groups and about the benefits of Falun Gong and his evidence that “he cannot comprehend the profound principles of Falun Gong”.
The Tribunal advised the Applicant that it was concerned about various aspects of his evidence, including his “lack of detailed knowledge about Falun Gong”, as well as his “delay in attending Falun Gong practice in Sydney” and the fact that his evidence that he had to pay a donation to do so was at variance with information suggesting Falun Gong was free. The Tribunal recorded the Applicant’s response to these concerns.
The Tribunal must raise dispositive issues with an Applicant at the hearing, consistent with its obligations under s.425 of the Migration Act 1958 (Cth). It is, however, apparent from the Tribunal’s reasons for decision that it did so, including in relation to the Applicant’s knowledge and practice of Falun Gong. The Applicant was clearly on notice of the issue of the genuineness of his claims about his practice of Falun Gong, not only from the delegate’s decision but also from the issues the Tribunal raised with him at the hearing. The fact that the Applicant now raises a concern that the Tribunal did not ask him as many questions about the practice of Falun Gong as he feels would have been appropriate, does not establish jurisdictional error whether on a basis contended for in the application for review or otherwise.
The first ground in the application is that the Tribunal was biased against the Applicant. When asked to explain the basis for this claim the Applicant contended that the Tribunal asked him a lot of questions about his driving skills.
There is no transcript of the Tribunal hearing before the Court. The Tribunal’s account of what occurred at the hearing does not give rise to any concern about a concentration by the Tribunal on irrelevancies, insofar as this appeared to be contended for by the Applicant. There is simply no evidence before the Court such as to establish actual bias in the sense of prejudgment on the part of the Tribunal (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). Actual bias must be clearly alleged and proved. No inference of bias or prejudgment can be drawn from the mere fact of the adverse findings made by the Tribunal in this instance.
Nor has it been established that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28. This is not a case in which the Tribunal findings are such as to give rise to an apprehension of bias. Rather, the Tribunal properly considered the Applicant’s claims and gave reasons for its findings that were open to it on the material before it for the reasons which it gave. Bias is not established either on the basis of the Applicant’s claims about questioning by the Tribunal or on any other basis. Ground one is not made out.
The second ground is that the Tribunal did not “follow procedural fairness”. When given the opportunity to explain this ground, the Applicant reiterated that at the hearing the Tribunal had not asked him many questions about Falun Gong. As indicated, no jurisdictional error is established on that basis. Nor has it been established that the Tribunal breached any of its obligations in Division 4 of Part 7 of the Act or that it undertook the review in a manner that was otherwise procedurally unfair. Ground two is not made out.
Ground three is that the Tribunal failed to consider the Applicant’s evidence. In oral submissions he claimed he told the truth and all he said about Falun Gong was true, but the Tribunal rejected his claim. Insofar as the Applicant takes issue with the Tribunal’s fact finding, merits review is not available in this Court. He has not identified any particular evidence that was not addressed or considered in the Tribunal reasons for decision. It is apparent from the Tribunal’s statement of reasons that it carefully considered the Applicant’s evidence but found, for the combination of reasons which it gave, that he had fabricated his claims in relation to being a genuine practitioner of Falun Gong. Nor did it accept his claims in relation to fearing harm on the basis of having fled China. It also found that he would not face serious or significant harm if he returned to China.
It has not been established that the Tribunal failed to consider the Applicant’s evidence, let alone that it did so in a manner giving rise to jurisdictional error.
In submissions in response the Applicant claimed to have a detention certificate in China but that he had not brought it to Australia. There is no suggestion that he sought to put such evidence before the Tribunal which it failed to consider. No jurisdictional error is apparent in this respect.
As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed.
Before I make the orders I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The Applicant has been unsuccessful in these proceedings and there is nothing to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent. This matter was a relatively straightforward matter involving three general and unparticularised grounds from a self-represented litigant who did not file written submissions. Neither the Court Book or the Tribunal decision contains material of significant complexity.
In my view, contrary to the First Respondent’s submissions, this is not a case that warrants costs of the amount provided for in Schedule 1 to the Federal Magistrates Court Rules. Doing the best I can on the material before me, having regard to the nature of this and other similar matters, I am of the view that a reasonable and appropriate amount for costs in this matter is the sum of $5,000.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 28 March 2013