SZNET v Minister for Immigration & Anor [2009] FMCA 479 (20 May 2009)

Last Updated: 25 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNET v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 479

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A

Applicant:

SZNET

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 199 of 2009

Judgment of:

Driver FM

Hearing date:

20 May 2009

Delivered at:

Sydney

Delivered on:

20 May 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
(3) The Court notes the undertaking of the applicant either to pay the setting down fee of $447 or apply for a waiver by 22 May 2009.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 199 of 2009

SZNET

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 2 January 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts concerning the applicant's protection visa claims and the Tribunal decision on them are conveniently set out in the Minister's written submissions filed on 12 May 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 4 of those submissions:
   • The applicant arrived in Australia on 17 April 2008: court book (“CB”) 74 [2], and applied for the visa on 29 April 2008: CB 1-32. The delegate refused the visa on 24 July 2008: CB 36-49. The applicant applied to the Tribunal for review on 19 August 2008: CB 51-54. The Tribunal held a hearing on 26 November 2008: CB 62-63.
   • The applicant claimed to fear persecution in China for reason of his Falun Gong religion. He claimed to have commenced practising Falun Gong by sitting against a wall when in hospital in 2005 after a work accident. He claimed his surgeon introduced him to Falun Gong. He claimed to have been arrested on 14 June 2006 when discovered practising Falun Gong with the surgeon and others, and sent to a detention centre for six months, where he claimed he was mistreated. He claimed that he lost his job and when he was released he moved to another town but local residents informed the police that he was again practising Falun Gong in September 2007, although he escaped without being questioned. He claimed he continued practising Falun Gong in Australia. See generally CB 77-82.
   • The Tribunal found the applicant was not a witness of truth and that his claims were embellished, if not fabricated: CB 77 [27], 78-79 [33]. The Tribunal regarded the applicant’s claim that his surgeon introduced him to Falun Gong as implausible: CB 78 [31], and did not accept that the applicant would be taken to be practising Falun Gong in hospital or thereafter merely by sitting or leaning against a wall: CB 78-79 [32-33], 80 [44]. The Tribunal did not believe that the applicant was a genuine Falun Gong practitioner given that he appeared to know no Falun Gong exercises other than sitting against a wall: CB 79 [34-37]. Nor did it accept that he would not have been questioned by the police before he left China in April 2008 if his claim to have been sought by them in September 2007 was true. As a result the Tribunal rejected all the applicant’s claims of being a Falun Gong practitioner and being harmed for this reason in China. The Tribunal disregarded his Falun Gong practice in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”): CB 82 [54].
2. The applicant relies upon a show cause application filed on 28 January 2009. I incorporate the two grounds of that application in this judgment:
   • 1. [Tribunal] did not consider my case fairly. They did not provide credible reasons to persuade my evidence.
   • 2. [Tribunal] failed to consider the potential risks of persecution I will be exposed to as I’m a real Falun Gong practitioner.
3. I proceed on the basis that the word "persuade" in ground 1 should be "reject". The application is supported by a short affidavit which I received as a submission. I also have before me the court book filed on 25 February 2009 and an affidavit by Katherine Nicole Hooper made on 23 March 2009. Annexed to that affidavit is a transcript of a hearing conducted by the Tribunal on 26 November 2008.
4. The applicant failed before the Tribunal because he was not believed. The Tribunal made comprehensive findings of untruthfulness against the applicant. Having heard from the applicant, the Tribunal was clearly left in a state of total disbelief. The applicant maintains the truth of his protection visa claims, but the merits of those claims are beyond the scope of these proceedings. I explained that to the applicant. The findings made by the Tribunal were adequately reasoned and were open to the Tribunal on the material before it. No jurisdictional error arises from the Tribunal's reasoning process. Plainly, the Tribunal considered the applicant's claims but rejected them.
5. During the course of his oral submissions the applicant referred to a letter which he asserted had not been received. He was, however, unable to tell me what the letter was about. He ultimately told me that the letter he referred to should have been sent to his migration agent but she had not received it. I note that the applicant was and may still be assisted by Ms Weiming Qian of Good Fortune Co, a registered migration agent. I gave the applicant the opportunity to telephone his agent to check the circumstances of the letter which had not been received. After speaking to his agent, the applicant told me that all correspondence from the Tribunal had been received but a letter had been expected from the panel adviser appointed under the Minister's panel advice scheme for the purposes of the present proceedings and that letter had not been received. The correspondence file records that Mr Michael Jones was appointed as the applicant's panel adviser under the scheme. Mr Jones provided a certificate dated 4 March 2009 which verified that he provided advice to the applicant in person with the assistance of a Mandarin interpreter on that day. Mr Jones also certified that he provided written advice on the same day. There is no indication in the certificate how that written advice was delivered. It may have been handed to the applicant at the time of the interview, although the applicant could not recall that. Mr Jones was provided with the residential and postal addresses for the applicant by letter from the Court dated 13 February 2009.
6. I am unable to verify the delivery of Mr Jones' written advice to the applicant or his agent. However, I am satisfied that the Court has done all it could to facilitate that process. Obviously none of that bears on the validity of the Tribunal decision. In terms of these proceedings, I am not persuaded that the applicant has suffered any disadvantage.
7. In his oral submissions, Mr Reilly speculated that some issue might have been raised concerning s.424A of the Migration Act. However, the Minister submits, and I accept, that it does not appear from the court book that any relevant obligation of disclosure arose in this case under that section.
8. I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
9. Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,000. That is less than the currently applicable scale for a final hearing in this jurisdiction. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 21 May 2009