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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZDNP v Minister for Immigration [2004] FMCA 842 (25 November 2004)

SZDNP v Minister for Immigration [2004] FMCA 842 (25 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNP v MINISTER FOR IMMIGRATION
[2004] FMCA 842




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.474

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:
SZDNP




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1365 of 2004




Delivered on:


25 November 2004




Delivered at:


Sydney




Hearing date:


15 November 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Ms S Kaur-Bains




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in the amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1365 of 2004

SZDNP



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 16 March 2004 and handed down on 8 April 2004, affirming the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the delegate") made on 21 June 2002 to refuse to grant the applicant a protection visa.

Background

2. The applicant is a citizen of the People's Republic of China who arrived in Australia on 3April 2002. On 15 April 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") (Court Book pp.3-39) ("CB"). On 21 June 2002 the delegate refused to grant a protection visa (CB pp.44-53). On 4 July 2002 the applicant sought review of the delegate's decision by the Tribunal and on 23 May 2003 the Tribunal, as it was then constituted, affirmed the delegate's decision.

3. On 15 July 2003 the applicant sought review by the Federal Court of the Tribunal's decision pursuant to s.39B of the Judiciary Act 1903. On 20 October 2003 a consent order was made in the Federal Magistrates Court that the Tribunal's decision was invalid and remitted it to the Tribunal to be determined according to law.

4. The applicant's claims are set out in written submissions to the Department and the Tribunal and in oral evidence given before the Tribunal on 9 March 2004 (CB pp.26-39). The applicant claimed protection on the grounds that he is a Falun Gong practitioner. In a statement attached to his application to the Department, the applicant states that he became interested in the practice of Falun Gong after it was declared illegal by the Chinese government in July 1999. The applicant described in general terms the treatment of practitioners after that time.

5. The applicant stated that Harbin, the city where he lived, was home to many thousands of Falun Gong practitioners; being an industrial city where many workers who were unemployed and could not afford medical treatment turned to Falun Gong. The applicant also stated that as he learned more about the practice and the unfairness of the government's treatment of practitioners, he decided to support them. In the beginning he made donations and provided facilities at his company such as reading rooms and a printing press. The applicant then started practicing Falun Gong himself and found his health improved. In December 2000 the applicant claimed he became an active, supporting member of Falun Gong, attending meetings and promoting the practice.

6. The Tribunal sets out the applicant's written claims as follows:

a) On 25 February 2002, twenty-one Falun Gong leaders met at his company to plan a demonstration. During the meeting he was warned by a good friend in the Public Security Bureau that the police were aware of the meeting and that they were going to come and arrest the group. The meeting was immediately cancelled and everybody left.

b) The applicant does not know whether the police actually went to the company that day, but the next day one of the people at the meeting told the applicant that the police officer went to her home and interrogated her and warned her to stay away from Falun Gong. The applicant said that the group decided not to meet for a while. The applicant claimed that two of the group reported that police officers had been to their home and interrogated them.

c) On 27 March 2002 the group decided to meet and plan another demonstration. They met at a restaurant under the pretext of celebrating a birthday. Suddenly there were surrounded by police officers who took them to the police station and questioned them. They were released because there was no evidence against them. As they knew they were in danger of arrest, the applicant and five others then decided to leave the country and left for Australia.

d) Since arriving in Australia he has devoted himself fully to Falun Gong, practising every morning with other practitioners, joining in regular gatherings at Chinatown every two weeks and distributing brochures, as well as attending a gathering at Darling Harbour and attending a Falun Gong Day at Hyde Park in May 2002. (CB pp.90-91)

The Tribunal's findings and reasons

7. The applicant attended the second Tribunal hearing on 9 March 2004 before a differently constituted Tribunal and gave oral evidence (CB p.90). The Tribunal did not believe that the applicant was involved in the practice of Falun Gong either in China or in Australia. The Tribunal stated:

a) The applicant was unable to describe the most basic principles of the practice and could not describe what it meant to him or what his own practice involved other than in the most general terms. The Tribunal noted that if the applicant had been involved in the practice with other practitioners over some years, as he had claimed, and it was important to him, then he would not have had such difficulty in describing the practice as he had at the Tribunal hearing (CB pp. 95-96).

b) It found inconsistencies between the applicant's written statement and his oral evidence and his failure to mention certain important events prior to the hearing of the matter before the Tribunal.

Given the above findings of fact, the Tribunal found that the applicant did not have a well-founded fear of persecution.

The application for review of the Tribunal's decision

8. On 10 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 claiming the Tribunal ignored parts of his claim in the statement attached to his application and in doing so the Tribunal ignored relevant material or reached a decision that could not reasonably have been reached. On 18 August 2004 the applicant attended a direction hearing and signed Short Minutes of Order by consent. It was agreed that the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in his application and any evidence upon which the applicant proposed to rely. The applicant also agreed to file and serve any written submissions seven (7) working days before the hearing date. The applicant did file an amended application on 7 October 2004, which contained the following statements:

"I believe the judge's decision is flawed in the law in relation to the RRT for the following reasons:

I. Facts

1. The Tribunal Member from the RRT asked me during the hearing session whether or not I would be persecuted were I to return to my home country. I told the Member about the hardship I would suffer and the strong likelihood of being persecuted by the authorities in my home country. Since the intelligence authorities tried hard to make it hard for me make a living. The Tribunal Member just asked me of my comment of their general information gathered about the human rights conditions in my country without considering my specific circumstances.

I am now addressing you, your honour, in regard to the judge's decision, I believe it is unfair since the judge considered my previous work in China as a descent and official job and therefore I would not suffer from persecution were I to return. I need to explain to you, your honour what the RRT Tribunal Member did not ask me about.

The RRT Tribunal Member did not ask me about the nature of my job in China, whether it is a private or a government job or if it provides me and my family with a high or low income, of if I am qualified to do such a job or not, or even if it suits a qualified person as me.

Your honour, here is a brief description about the job I used to work in China. I used to do that job because there was not often options and because I had to do since I need to support my family.

At last, your honour, the RRT Tribunal Member did not take into account all of those conditions and built his case and refused my application without listening to those details about my work and even without trying to understand that situation.

I do not know your honour, how can I prove to the RRT member that I have been through a tough and hard life condition since the RRT Member did not try to enquire about all of that.

I believe that the RRT member considered that the situation in China.

II Claim:

The decision made by the RRT is unfair to me because I am sure that I will be persecuted by the Chinese government once I return to China. The decision the RRT made should be based on a fair basis. They should take all the circumstances into consideration and give me a favourable decision.

III Relief sought

The Refugee Review Tribunal reconsiders the application, differently constituted according to law."

The law

9. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

10. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

11. The applicant appeared self represented with the aid of a Mandarin interpreter. Although the applicant had complied with the directions orders in relation to filing an amended application, he did not file and serve any written submissions prior to the hearing. When the applicant was invited to make oral submissions at the hearing, this was limited to making a statement that he did not have any written submissions with him as he had left them with the migration agent and made a vague statement that they were now in the possession of the Department. The applicant also mentioned that he was awaiting the delivery of further documents from China relating to the operation of the Falun Gong organisation. When it was pointed out to the applicant that it was explained to him at the time of the directions hearing that any submissions in support of his case should have been presented prior to the final hearing, the applicant persisted in the claim that he was still awaiting material from China that contained details about Falun Gong. When asked whether any of this material was available from the Australian exponents of Falun Gong, the applicant declined to discuss the issue.

12. Ms S Kaur-Bains of Counsel, appearing for the respondent, filed written submissions prior to the hearing. It was submitted by the respondent that the applicant's amended application for review dated 6 October 2004 made no mention of the grounds in his original application which he had raised in his original submission to the Tribunal but referred to new grounds for review. These new grounds are summarised by Counsel for the respondent in her submissions as follows:

a) "The Tribunal Member just asked me of my comment of their general information gathered about the human rights conditions in my country without considering my specific circumstances"

("failure to consider applicant's specific circumstances");

b) The Tribunal's decision is "unfair since the judge considered my previous work in China as a decent and official job and therefore I would not suffer from persecution if I were to return". The Tribunal failed to ask the applicant about the nature of his job in China and whether it was a private or government job or if it provided the applicant and his family with a high or low income or if he was qualified to do such a job or not and even if it suits a qualified person as the applicant;

c) The Tribunal did not take into account all of the applicant's conditions and built his case and refused the application without listening to all "those details about my work and even without trying to understand that situation".

("Failure to ask about the applicant's work")

13. The Tribunal fully sets out the claims contained in the applicant's statement at CB pp.26-29. The grounds for review set out in the first application have no substance, although it is noted that those grounds are not pressed in the amended application.

14. It was submitted that, in relation to the grounds set out in the amended application, the Tribunal clearly considered the applicant's specific circumstances and found that the applicant was not a witness of truth. It was further submitted that it was for the applicant to put his case forward and if certain aspects of his job were relevant to the determination then the applicant was required to raise them. It was submitted that, in any event, the issue of whether the applicant had a high or low income job was not a relevant matter.

15. Counsel submitted that no error of law was established and, as stated earlier, the applicant's claim failed because he was not believed. Findings of credit are for the Tribunal to make: Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham.

Conclusion

16. The applicant, self represented in these proceedings, made no oral or written submissions. The grounds in the applicant's amended application are vague and not formally particularised. When the applicant was invited to make oral submissions in support of his application, he indicated that he was waiting for correspondence and further information to be supplied from China in relation to the organisation activities of the Falun Gong. He also indicated that all of his materials and files were with his migration agent and that these were confiscated by the Department. When pressed to explain the circumstances, the applicant declined. However, where an applicant is self-represented, the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The manner in which the application has been drafted produces some difficulty in identifying the actual grounds, which makes it difficult to ensure that all aspects of individual issues raised by the applicant are satisfactorily addressed.

17. I have accepted the approach taken by Ms Kaur-Bains of Counsel and have adopted her summary of the grounds, which I believe assist me in the resolution of this matter.

18. The Tribunal had at its disposal a range of information relating to the operation of the Falun Gong in China, being a form of spiritual discipline based on the ancient Chinese practice of Qi Gong which aims at improving the health and well-being of its practitioners. Its belief system, emphasising truthfulness, compassion and forbearance, is said to encourage the highest standards of moral behaviour and to augment the goodness already present in individuals within society. The current practice of Falun Gong was commenced in 1992 by Li Hong Zhi. The practice was banned in July 1999 by the Chinese authorities and has since attracted severe repression, principally because of the threat to authorities, because of its capacity to attract and mobilise millions of followers. As the practice of Falun Gong is a relatively recent phenomena attracting considerable attention, there is a wide range of reports from various organisations about its practice and suppression within China.

19. In the Tribunal's decision under "Findings and Reasons" (CB p.95) the Tribunal was not satisfied the applicant had more than a passing interest in Falun Gong. The Tribunal accepted that the treatment of practitioners after 1999 was unfair but the Tribunal could not accept any support that the applicant gave to the movement had come to the attention of the Chinese authorities or that they had any interest in him for that reason. The Tribunal could accept that the applicant may have provided the movement with some form of financial support, as outlined in his original written application for a visa, but it was not accepted that he was subject to scrutiny by the Chinese authorities at the time he left for Australia.

20. The Tribunal could not accept that the applicant practised Falun Gong either in China or in Australia because he was unable to describe its most basic principles without being prompted and he could not describe what the practice meant to him and involved other than in the most general terms. The Tribunal could not accept that if the applicant had been so committed to Falun Gong for the period indicated that he would be so unfamiliar with it and would have such difficulties in describing its practice as he had at the oral hearing.

21. In respect of the ground that the Tribunal failed to consider the applicant's specific circumstances, this is not sustained in light of the material set out in the Tribunal's decision where it makes specific reference to the reasons that it could not accept the applicant's claims in relation to his adherence to the philosophy of Falun Gong.

22. In respect of the ground that the Tribunal failed to ask about the applicant's work, in the absence of any argument or evidence, it is difficult to determine the relevance of this information because it does not come into the criteria of the Tribunal's decision making process in determining whether the applicant would suffer any form of persecution. The applicant does not raise this issue in his original application for review nor is it raised before the Tribunal and it was not raised in his submissions during the hearing before this Court. The applicant had the benefit of advice from the Pilot RRT Legal Advice Scheme (NSW) and it can only be assumed that key evidence raised in the applicant's amended application would have been subject to this advice. Despite this, the applicant declined the invitation to make any submissions during the hearing.

23. As the grounds in the application are general and without particularisation I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant's claim should be dismissed.

24. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 25 November 2004
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