SZNLC v Minister for Immigration & Anor [2009] FMCA 749 (28 July 2009)

Last Updated: 12 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLC v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 749

MIGRATION – RRT decision – Chinese applicant claiming persecution for supporting Falun Gong activities – claims disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth)

SZNAV & Ors v Minister for Immigration [2009] FMCA 693 SZNJT v Minister for Immigration [2009] FMCA 730

Applicant:

SZNLC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 844 of 2009

Judgment of:

Smith FM

Hearing date:

28 July 2009

Delivered at:

Sydney

Delivered on:

28 July 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 844 of 2009

SZNLC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant arrived in Australia in August 2008, and on 17 September 2008 he applied for a protection visa. His application did not disclose any assistance, and attached a typed statement upon which he claimed to fear persecution if he returned to China.
2. His statement claimed that he was a Falun Gong practitioner. He claimed to have been sentenced to 10 months in a labour camp in September 2003, for distributing “truth clarifying materials”. While in prison he “still practise the Falun Gong exercises and meditation and studied the Falun Dafa teachings in the book Zhuan Falun”. He suffered mistreatment as a result, before he was released in July 2004. His statement suggested that he did not give up Falun Gong, and that he sold his house to come to Australia.
3. No details or corroborative evidence of these claims was given to the Department of Immigration, and the applicant did not attend an interview by the delegate to which he was invited. A delegate refused the visa application on 11 November 2008. The delegate said that he had been unable to test the assertions made by the applicant in regard to his claims, and to be satisfied of the veracity of those claims.
4. On appeal, the applicant attended a hearing of the Tribunal on
   12 February 2009. The applicant has not tendered a transcript of the hearing, although he was given the recording at the end of the hearing, and has had an opportunity to file a transcript in this Court. I have no reason not to accept the description of the hearing given by the Tribunal in its statement of reasons.
5. According to the Tribunal, the applicant claimed for the first time that he had participated in demonstrations against the Government in 1989, and had suffered arrest and gaoling for four years as a result. However, it appears from paragraph 65 of the Tribunal's reasons, that the applicant also told the Tribunal that he did not wish to make any refugee claims based on this claimed imprisonment and his involvement in demonstrations at that time.
6. The applicant gave very different evidence concerning his involvement with Falun Gong. He disclaimed that he was himself a Falun Gong practitioner. He said that he was a supporter, in particular, of his mother and her friends who had been practising Falun Gong. He claimed that he had suffered as a result of surveillance on his mother and pressure on him to control his mother's conduct. He said that he was dismissed from his employment in December 2002 because he supported his mother's activities in the Falun Gong. He claimed to have distributed pamphlets after that time, and to have been arrested and sentenced to 10 months' gaol in September 2003 as a result. The Tribunal tried to elicit anything that had happened to him after he was released, but he did not refer to anything further happening to him before he came to Australia.
7. The Tribunal drew his attention to an inconsistency between his evidence to it that he had lost his employment in December 2002, and a statement in his visa application that he had continued in the same employment until July 2008 when he came to Australia. The Tribunal also received explanations from the applicant for other discrepancies between his evidence to the Tribunal and his statements to the Department of Immigration. He offered various reasons for these discrepancies.
8. The Tribunal made a decision on 6 March 2009, affirming the Delegate's decision. In its findings and reasons, the Tribunal addressed the elements in the applicant's claims which he had relied upon at the hearing. It noted that he no longer claimed to be a Falun Gong member, and found that he was not.
9. The Tribunal assessed his claims to have been a supporter of Falun Gong, to have distributed pamphlets, lost his employment and suffered imprisonment as a result. The Tribunal noted that there was no corroborative information about these claims, in particular about his mother's ill treatment. The Tribunal preferred to rely upon the applicant's statements in his visa application in relation to his employment, and did not accept his explanations for the discrepancies in his later evidence to the Tribunal. It said:
   • In the view of the Tribunal, the applicant's claims that he lost his job as did his wife and colleagues because of his support for his mother's association with the Falun Gong are fabrications to support his claim for protection in Australia.
10. The Tribunal rejected the applicant’s claims that he had been involved in distributing Falun Gong literature, and that he had been imprisoned. It said there was no evidence that he had suffered any form of persecution, including in the subsequent years after his claimed release.
11. The Tribunal noted that the applicant had disclaimed reliance upon his claims to have taken part in demonstrations in 1989, but observed that this claim would “have held no weight in assessing the applicant's case”.
12. The Tribunal said that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
13. The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa.
14. The applicant's grounds of his application are set out in his original application, and he has filed no amended application or written submissions to explain them. They state:
    • 1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
    • 2. There was no evidence or the other materials to justify the making of the decision.
    • 3. I am a real Falun Gong practitioner, and I was tortured by my original government.
15. Today, the applicant was unable to explain them, other than repeating to me his explanations for the significant discrepancies upon which the Tribunal decided the case. However, his submissions amounted only to an invitation for me to reassess the facts of the case, and it is not the function of the Court to do that.
16. Unaided by any submissions, I am unable to give any arguable substance to the two contended grounds of jurisdictional error presented in grounds one and two of the application. I can detect no error of law in the Tribunal’s statement of reasons. On the evidence before me it was open to the Tribunal to have rejected the critical parts of the applicant's evidence to it, and not to have been satisfied that the applicant was a person who satisfied the definition of refugee.
17. Ground three of the application does not raise a contended jurisdictional error.
18. Counsel for the Minister offered to present the Court with submissions relating to the judgment of Raphael FM in SZNAV & Ors v Minister for Immigration [2009] FMCA 693 in its possible application to the present case. However, the effect of s.424(2) of the Migration Act has not been raised by the applicant before the Court. I have yesterday given judgment in a matter where the applicant was legally represented, which is factually indistinguishable from the present matter. In the circumstances, I did not consider it necessary to hear further argument from the Minister's counsel on the matter, and rely on the reasons I gave yesterday for declining to follow SZNAV (see SZNJT v Minister for Immigration [2009] FMCA 730).
19. For the above reasons I am not satisfied that the Tribunal's decision was affected by any jurisdictional error.
20. I must therefore dismiss the application.

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

Associate: Michael Abood

Date: 10 August 2009