SZRQX v Minister for Immigration

[2012] FMCA 1146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRQX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1146

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

Migration Act 1958 (Cth)
Federal Magistrates Court Rules2001 (Cth)

“CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1
SZLPH v Minister for Immigration and Citizenship [2008] FCA 744

Applicant: SZRQX

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1601 of 2012

Judgment of: Barnes FM

Hearing date: 14 November 2012

Delivered at: Sydney

Delivered on: 14 November 2012

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1601 of 2012

SZRQX

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 29 June 2012 affirming 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, came to Australia in 2007 as the holder of a student visa.  After 15 March 2010 she remained in Australia as an unlawful non-citizen until located by Departmental officers and detained in February 2012.

2. The applicant applied for a protection visa on 22 February 2012.  In a statement accompanying her protection visa application she claimed to fear persecution in China as a Falun Gong practitioner, based on what she claimed had happened to her father as a Falun Gong practitioner.  She claimed he had been regularly detained and/or arrested and tortured and killed by the Chinese Government in 2010.  She also claimed that her father taught her to practice Falun Gong and that the police knew that she was a Falun Gong practitioner. 

3. The applicant’s application was refused and she sought review by the Tribunal.  She attended a Tribunal hearing.  After the Tribunal hearing she provided a written statement to the Tribunal stating that she “realized” that there were “many things” for her to learn about Falun Gong.  She claimed to have scars on her body and that she did not understand why it had not been believed that she was a Falun Gong practitioner.

4. In its reasons for decision the Tribunal set out in detail the claims made by the applicant in her protection visa application and the evidence given by her at the Tribunal hearing.  The Tribunal found that the applicant was not a genuine Falun Gong practitioner.  It had regard, in particular, to the applicant’s limited knowledge regarding Falun Gong, which it considered was not commensurate with that of a genuine Falun Gong practitioner with the past experience of Falun Gong practice which the applicant claimed.  The Tribunal had raised such issues with the applicant at the hearing.  It noted that despite having claimed to be a Falun Gong practitioner the applicant was unable to name or perform any of the sets of exercise and was initially unable to answer how many there were.  Nor was she aware of the objective of each set of exercises.  She was not able to name the main scripture of Falun Gong or remember anything contained in it and produced no documentary evidence or testimony from any witnesses supporting her claim to be a Falun Gong practitioner.

5. The Tribunal had regard to independent country information which it had put to the applicant in relation to identification of a genuine Falun Gong practitioner.  It found that the applicant in this case would have had “ample opportunity” to become familiar with the Falun Gong exercises (given that she claimed she had practised with her father weekly) and other elements of Falun Gong, but that she had not been able “to relate sufficient knowledge” on such matters “commensurate with a genuine Falun Gong practitioner”.

6. The Tribunal found that the applicant was not a genuine Falun Gong practitioner and that there was insufficient credible evidence upon which to make a finding that she was a refugee within the meaning of the Refugees Convention.  In reaching these findings the Tribunal addressed the applicant’s explanations for her lack of knowledge of Falun Gong.  It also noted that her ability to depart China without apparent difficulty indicated that she was not of interest to the authorities as a genuine Falun Gong practitioner.

7. The Tribunal found that the applicant would not be involved in any Falun Gong activities in Australia or China in the reasonably foreseeable future which would attract the adverse interest of the authorities and that she would not be targeted or mistreated by the Chinese authorities for being a Falun Gong practitioner. 

8. The Tribunal also considered the complementary protection provisions in the Migration Act 1958 (Cth) and found that there was no real risk that the applicant would suffer significant harm if she returned to China for the same reasons as those given in relation to her other claims. The Tribunal affirmed the decision of the delegate.

9. The applicant sought review by application filed in this Court on 24 July 2012.  There are three generally expressed and unparticularised grounds in the application.  There is no clarification in the applicant’s accompanying affidavit and she did not file written submissions.  She was not able to clarify these grounds in oral submissions. 

10. The first ground is a general contention of jurisdictional error.  There is no explanation for this general contention and the bare assertion of error does not establish even an arguable case of jurisdictional error on the part of the Tribunal.

11. Insofar as in oral submissions the applicant asked why “they” did not believe that she was a Falun Gong practitioner, she appears to take issue with the Tribunal’s credibility findings.  Credibility findings are a matter for the Tribunal as the decision-maker (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). The Tribunal’s findings in this respect were open to it on the material before it for the reasons that it gave and no jurisdictional error is apparent in the manner in which it approached its task. As indicated, it is apparent from the Tribunal account of the hearing (the only evidence before the Court of the Tribunal hearing) that it raised dispositive issues with the applicant in the course of the hearing. Ground one is not made out.

12. Ground two is a general claim of denial of natural justice.  As pleaded, this claim is not made out.  Insofar as the application states that the applicant “[does] not agree” with the decision, this seeks impermissible merits review and does not establish a reviewable error. 

13. Ground three is expressed as a failure “to take into account very relevant facts of the matter”.  I asked the applicant to elaborate on this claim.  She had nothing to say and suggested that she had not, in fact, made this claim.  Someone has clearly included this claim in the application.  The applicant was not able to elaborate and there is nothing in the material before the Court to indicate any failure by the Tribunal to have regard to any claim or integer of the applicant’s claims.  In particular, the Tribunal considered the applicant’s claims to fear persecution as a Falun Gong practitioner.  Ground three is not made out. 

14. For the sake of completeness I note that, as referred to in the respondent’s written submissions, there is a typographical error apparent in the Tribunal’s decision record at paragraph 50 insofar as the final sentence (which is describing what occurred at the Tribunal hearing) appears to be incomplete.  After describing the applicant’s fear that she would be arrested, the Tribunal stated “she testified that in her opinion…”.  However the incomplete sentence in the Tribunal’s description of the Tribunal hearing is not such as to establish any jurisdictional error on the part of the Tribunal.  It may not be a typographical error in the sense discussed in many of the authorities (see “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682; Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875; SZLPH v Minister for Immigration and Citizenship [2008] FCA 744), but in any event it is not such as to establish any jurisdictional error on the part of the Tribunal on the evidence before the Court. In particular there is no evidence to suggest that in its findings and reasons the Tribunal failed to consider any of the applicant’s claims.

15. As no jurisdictional error has been established on any of the bases contended for by the applicant the application should be dismissed.  Before I make the orders I will hear submissions in relation to costs.

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the first respondent.  The amount sought by the first respondent is considerably less than the amount provided for in the Federal Magistrates Court Rules2001 (Cth). It is, however, appropriate and reasonable in light of the nature of this and other similar matters.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  30 November 2012