SZUHW v Minister for Immigration

[2015] FCCA 855

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 855

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the applicant was accorded procedural fairness by the Tribunal – whether the applicant was given an opportunity by the Tribunal to comment on information pursuant to s.424A of the Migration Act 1958 (Cth) – whether the Tribunal was required to provide the applicant with a further opportunity to appear before it – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.424A, 424A(3)(a), 425

Applicant: SZUHW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1237 of 2014

Judgment of: Judge Manousaridis

Hearing date: 1 April 2015

Delivered at: Sydney

Delivered on: 1 April 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms A Wong of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,200.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1237 of 2014

SZUHW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the second respondent, which affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant is a citizen of the People’s Republic of China.  He claimed before the Tribunal that he feared persecution because he was a Falun Gong practitioner.[1]  He said that he began practising Falun Gong in 1997, and he did so in order to keep up with his job, which involved heavy labour. 

   [1] CB86, [8]-[10]

3. In July 1999 the applicant heard that Falun Gong had been banned and that many people had been arrested.  Through fear, the applicant moved to his relative’s place for four months at the end of 1999.  He continued practising Falun Gong on his own, with no one other than his wife knowing he was doing so.  In 2003, after observing the applicant practising Falun Gong, a neighbour reported the applicant to the police.  The applicant was detained and badly tortured.  He was transferred to a hospital in December 2004 and was then released after his wife paid money for his release. 

4. The applicant continued to practise Falun Gong.  In 2005, when he applied for a passport, the police found out and arrested him, and had his passport confiscated.  The applicant’s wife asked for a divorce, to which the applicant agreed.  The applicant obtained money from his parents to bribe the police.  The applicant continued to practise Falun Gong and secretly printed flyers about “Falun Gong’s truth” and placed them in populated areas, such as public toilets.  In 2007, the police found out and went to the applicant’s parents’ house, where they waited to arrest the applicant.  The applicant, however, fled to another area of China, where he worked in an electric power station.  The police found the applicant there in 2011 and the applicant returned to his home town.  The applicant used money he had saved to bribe the police.  The applicant then moved to another part of China, where he worked in a coal mine. 

5. In August 2012, with the help of a friend, the applicant bribed a senior police officer to obtain a passport.  The passport was granted in October 2012 and in June 2013 the applicant arrived in Australia. 

6. The Tribunal was not satisfied the applicant was a truthful witness.  It found the applicant “fabricated the totality of his claims to fear harm in China”.[2]  The Tribunal relied on a number of matters.  First, the Tribunal considered the applicant’s knowledge of Falun Gong was extremely limited and not consistent with his claims to have been a genuine Falun Gong practitioner since 1997.  Second, when asked about his apparent lack of knowledge of Falun Gong, the applicant claimed he had not been practising since he arrived in Australia because he was busy working and had no money.  Third, the applicant’s evidence about the difficulties he claimed he had due to his practise of Falun Gong in China “was vague and unpersuasive”.[3] 

   [2] CB87, [13]

   [3] CB89, [20]

7. In his application for judicial review, the applicant, who is not legally represented, raises three grounds.  The first is that the Tribunal “breached the rules of natural justice in connection with the making of the decision”.  This ground, unparticularised as it is, does not disclose any breach of the rules of natural justice or, as it is more familiarly known to lawyers, the rules of procedural fairness. 

8. At the hearing, after the interpreter interpreted this ground, the applicant said he really did not know what to say and did not understand the ground.  There is nothing in the material before me that could even raise an arguable case that the applicant was not accorded procedural fairness by the Tribunal.  Ground 1 therefore fails. 

9. The second ground the applicant states in his application is that the applicant was “not given opportunity to comment on the information forming with the making of the decision”.  Although not stated in the grounds of application, in the affidavit the applicant filed with his application the applicant asserts the Tribunal “failed to consider my application according to S424A of the Migration Act”. 

10. At the hearing, in response to my invitation to make submissions in relation to ground 2, the applicant said he was a supporter of Falun Gong but his agent told him to say to the Tribunal that he was a practitioner of Falun Gong, and that was the reason, the applicant says, he did not have a detailed knowledge of Falun Gong.  He asserted that he nevertheless was arrested by the police.  When I asked the applicant what information he claims he was not given an opportunity to comment on by the Tribunal, he said he was not good at expressing himself.  He said he was unable to give his comments and further said the Tribunal did not ask him to explain anything. 

11. The applicant has not put on any evidence to support the assertion he made from the bar table that he was only a Falun Gong supporter but not a practitioner and that his agent advised him to inform the Tribunal he was a practitioner.  Even if, however, there was such evidence, there is nothing to suggest the Tribunal was made aware the applicant was not a Falun Gong practitioner but was only a supporter, or that it ought reasonably to have been made aware of those matters.  The Tribunal, therefore, made no jurisdictional error by not considering the applicant’s case on the basis that he was a supporter of Falun Gong rather than a practitioner of Falun Gong. 

12. The applicant’s claim that the Tribunal did not ask him to explain himself cannot be made out on the material that is before me.  The Tribunal’s reasons for decision record the Tribunal asking the applicant questions on all aspects of the claims for protection the applicant made.  As for the applicant’s claim he was not good at expressing himself, the Tribunal acknowledged in its reasons that the hearing is a stressful process for many applicants, and that it could be difficult in such an environment to articulate principles relating to particular beliefs.  I am of the opinion that the Tribunal, having made that observation, took that observation into account both in the course of questioning the applicant and in arriving at its decision.  As I have already noted, the Tribunal’s reasons for decision indicate the Tribunal asked the applicant questions on all aspects of his claims.  There is nothing in the reasons which indicates the applicant had difficulties expressing himself.

13. What the applicant said to me in oral address did not address the ground specified in the application or the assertion made in the applicant’s affidavit that the Tribunal failed to consider the application according to s.424A of the Migration Act 1958 (Cth) (Act).  It is to the ground, as stated in the affidavit, that I now turn. 

14. The ground does not identify the information particulars of which the applicant claims the Tribunal should have given but failed to give to the applicant.  Ms Wong, who appeared for the Minister, submitted there was no “information” to which s.424A of the Act could have applied. That is so because the Tribunal relied on the three matters which I have already identified for affirming the delegate’s decision, namely, the applicant’s lack of knowledge of Falun Gong, the applicant’s not practising Falun Gong after arriving in Australia, and the applicant’s vague and unpersuasive evidence about the difficulties he claimed to have experienced in China due to his practise of Falun Gong; and that none of these matters was information.

15. The only matter which it could conceivably be argued was information to which s.424A applied is country information referred to in the Tribunal’s reasons for decision. However, because of the exception provided for in s.424A(3)(a) of the Act, s.424A of the Act did not apply to country information on which the Tribunal relied. In my opinion, there was no information to which s.424A applied and to the extent that the country information on which the Tribunal relied was information within the meaning of s.424A of the Act, s.424A of the Act did not apply to that information because of s.424A(3)(a).

16. For these reasons, therefore, ground 2 also fails. 

17. Ground 3 of the application is that the Tribunal “proceeded to make the decision without giving the applicant the further opportunity to be heard”.  At the hearing, in response to my invitation to make submissions in relation to ground 3, the applicant repeated he was not good at expressing himself, but added that his heart trembled.  As I have already noted, the Tribunal acknowledged that the hearing is a stressful process for many applicants and that it could be difficult in such an environment for applicants to articulate principles relating to particular beliefs.  As I have also already noted, the Tribunal’s reasons for decision indicate the Tribunal asked the applicant questions in relation to his claims and there is nothing in the reasons of the Tribunal which indicates the applicant had difficulties expressing himself. 

18. The applicant also submitted that if he did not have a genuine fear he would not have left his parents, whom he misses, and a young child.  That point does not raise any jurisdictional error but goes to the merits of the claim that he made before the Tribunal that he is, indeed, a refugee. 

19. The oral submissions the applicant made, however, do not address ground 3 as stated in the application. It is not clear what ground 3 is intended to claim. It implies the Tribunal, in addition to inviting the applicant to a hearing before it pursuant to s.425 of the Act and conducting a hearing, was required to give the applicant a further opportunity for the applicant to present his case. Why the Tribunal would have been so obliged is not stated in the ground. There is no suggestion in the material before me that the applicant asked for a further opportunity to present evidence or arguments. Ground 3, therefore, also fails.

20. For these reasons, I propose to make an order dismissing the application.  I also propose to make an order that the applicant pay the Minister’s costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 April 2015