SZMSN v Minister for Immigration & Anor [2009] FMCA 100 (4 February 2009)

Last Updated: 17 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSN v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 100

MIGRATION – Review of decision of RRT – where applicant does not particularise grounds of application.

Applicant:

SZMSN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2336 of 2008

Judgment of:

Raphael FM

Hearing date:

4 February 2009

Date of Last Submission:

4 February 2009

Delivered at:

Sydney

Delivered on:

4 February 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) I dismiss the application.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2336 of 2008

SZMSN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 5 February 2008, and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 13 March 2008. The delegate of the Minister refused to grant a protection visa on 10 April 2008. On 12 May 2008 the applicant applied for review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal and on 16 July 2008 the Tribunal determined to affirm the decision not to grant the visa. That decision was handed down on 5 August 2008.
2. The applicant explained why he was a person to whom Australia owed protection obligations in a statement annexed to his protection visa application. He told that he had been practising Falun Gong in China for a long time. It made him feel calm and healthy. It was particularly beneficial in the treatment of his insomnia. He noted that in July 1999 the practice of Falun Gong was made illegal, but he never thought of giving it up.
3. He said that on 18 July 2003, several policemen arrested him. He was taken to a detention centre for re-education. He was physically and spiritually tortured. He was kept at the detention centre for six months. Upon his release he planned to go overseas. He saved money and obtained a visa to visit Australia. He said that if he went back to China the police would arrest him again. He said that he did not wish to go back to China as there was no reason for him to do so.
4. The applicant appeared before the Tribunal and noted that he had been born in Shanghai in 1953 and remained in that city until he left for Australia. He was employed as a chef between 1983 and 2007. He gave the name of the detention centre in which he was detained to the Tribunal. He told the Tribunal he had not been charged with any offence.
5. The Tribunal questioned the applicant about his practice of and adherence to Falun Gong. He said that he practised this in a small garden where he lives in Australia but has not been in contact with any other Falun Gong practitioners. He did not think that was necessary because he could practice by himself. The Tribunal questioned him about his knowledge of Master Lee’s book “Zhuan Falun”. At one stage he said that he had not brought the book with him to Australia, but at another stage he said that he had.
6. The Tribunal questioned the applicant about the circumstances surrounding his arrest. He told the Tribunal that he had been practising privately in his home. The Tribunal expressed some scepticism about how the police would have known that he was there and practising at the time. Whilst the applicant appeared to be familiar with the movements of the Falun Gong exercises, the Tribunal felt that he did not show such familiarity with “Zhuan Falun”. The Tribunal questioned the applicant upon why he had not left China after his release from detention, but waited a further four years. The Tribunal did not understand why the applicant would be arrested on his return from Australia if he had not been arrested in China.
7. At [CB 70] the Tribunal said:
   • “In dealing with this application the Tribunal has formed the firm view that the applicant lacks credibility and that his material claims cannot be accepted. In summary, the applicant claims to fear persecution in China because he is a Falun Gong practitioner. He claims to have practiced Falun Gong since 1996, when he learned the five sets of exercises, to help him with his insomnia. He claimed that on 18 July 2003, whilst practising alone in his bedroom at home, he was detained by the authorities for a period of six months. He claims that if he returns to China he will be arrested again because of his previous record. On the evidence before it, the Tribunal is not satisfied the applicant is a Falun Gong practitioner or that he practiced Falun Gong in China or practices in Australia, as claimed.”
8. The Tribunal then went on in the following paragraph to set out a series of inconsistencies and implausibilities which lead it to conclude that the applicant was neither truthful nor credible. These reasons include the applicant’s lack of knowledge of the book “Zhuan Falun”, the inconsistency in his statement about bringing it to the country, his lack of knowledge of Falun Dafa, the variation in his evidence about the way in which he practiced Falun Gong in China, the implausibility of his evidence concerning his detention, particularly the evidence concerning the police raid upon his home, the ease with which the applicant obtained a passport notwithstanding the adverse interest in him that he claimed from the authorities and finally, his lack of association with Falun Gong practitioners in Australia.
9. The Tribunal found that it could not be satisfied that the applicant had practiced Falun Gong in China, or continued to practice in Australia, and therefore his claims to have been harassed by the police, detained and tortured were not accepted. In these circumstances, the Tribunal concluded that it was not satisfied that he had a well founded fear of persecution for a Convention reason.
10. On 8 September 2008, the applicant filed an application in this Court. There were five grounds set out. The first was that procedures that were required to be observed in the making of the decision were not observed. This is a serious allegation that may well have lead to a finding of jurisdictional error had the applicant established what the procedures were and the manner in which they were not observed, but no particulars have been forthcoming and in their absence it is not for this court to hazard a guess what they might have been.
11. The second matter raised by the applicant was that indeed:
    • “I will be sent to jail if I go back to China, as I am a Falun Gong practitioner.”

This is a statement of fact which the Tribunal has already rejected and cannot in any way constitute a jurisdictional error on the part of the Tribunal.

12. The third ground was that:

“The Tribunal did not consider properly the current situation in China.”

It would only be a necessity for the Tribunal to consider the current situation in China, as it applied to Falun Gong practitioners, if the Tribunal had concluded that the applicant was a witness of truth and that he indeed was a Falun Gong practitioner and had been since 1996. It did not come to that conclusion. To the contrary, it felt that the applicant was not a Falun Gong practitioner at all and there was therefore no obligation upon it.

13. The fourth matter was:
    • “The Tribunal failed to consider the real situation in China which I must face as a Falun Gong practitioner.”

This is really no different from the complaint made above. The Tribunal would have been obliged to consider the real situation in China if it had considered that the applicant was a Falun Gong practitioner, but as it did not, there was no obligation upon it to do so.

14. Finally, the applicant stated in his grounds:
    • “I would like to say what I said is true and correct.”

This again is a statement and not a ground of jurisdictional error. Before me today the applicant appeared and told me that he was a genuine Falun Gong practitioner. He told me that he did not wish to go back to China and that he wished to remain in Australia. He told me that he was not feeling well and could not answer any questions. I explained to him that the Court was not going to ask him any questions and that the Court’s duty was to assess whether or not the Tribunal had erred in law in the way in which it had reached its decision. It was not for this Court to provide him with merits review of that decision.

15. I am satisfied that in this case the Tribunal conducted the review lawfully and did not fall in to jurisdictional error in the manner in which it came to its conclusions. I dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $3,500.00.

I certify that the preceding (fifteen) (15) paragraphs are a true copy of the reasons for judgment of (Raphael) FM

Associate:

Date: 13 February 2009