//
[2007] FMCA 85
General information, not legal advice.
Federal Magistrates Court of Australia
2007-02-02
Mr J
Original judgment source is linked above.
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 17 January 2005.
The applicant was born on 29 March 1976 and claims to be from the People's Republic of China ("the PRC") and of Chinese ethnicity ("the Applicant").
The Applicant has a wife and daughter who remain in the PRC.
The Applicant arrived in Australia on 22 January 2004, having legally departed from Beijing on a passport issued in his own name and a class 676 visa issued on 8 January 2004.
On 2 February 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese government because he is a Falun Gong practitioner. The Applicant claimed that he was arrested, interrogated and beaten by police and made to pay a fine in order to be released.
On 9 February 2004, a delegate of the First Respondent ("the Delegate") refused the Applicant's application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention").
On 15 March 2004, the Applicant lodged an application for review of the Delegate's decision by the Tribunal. Before the Tribunal, the Applicant also claimed that he was forced to write 'self-criticism' and was fired from work because of his involvement in Falun Gong. On
17 January 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 February 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal's decision.
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines "Refugees Convention" and "Refugees Protocol" as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal set out comprehensively the claims made by the Applicant, both in writing and orally. The Tribunal also set out with specificity the independent information to which it had regard. The Tribunal accepted that the Applicant was a Falun Gong practitioner in the PRC and that he was briefly detained in 1999. The Tribunal accepted that the Applicant had signed an undertaking not to practice Falun Gong and was fined.
The Tribunal found that the Applicant suffered no punishment for attending only one class of denouncement of Falun Gong. The Tribunal noted that the Applicant did not allege physical ill treatment during his contact with the Public Security Bureau in 1999.
The Tribunal noted that the allegation made by the Applicant in his statement in support of his protection visa application, which alleged that he was beaten by the police, was in fact intended to be an allegation that his father was beaten by police.
The Tribunal noted that the Applicant was not subjected to any physical harm by any person because of the perception that he was a Falun Gong practitioner.
The Tribunal found that the Applicant was not detained or seriously harmed or harassed during his last four years in the PRC and that in fact he was able to obtain a passport in his own name and leave and re-enter the PRC without coming into conflict with the authorities.
The Tribunal did accept that the Applicant had been subject to some discriminatory treatment over the years because he had been a Falun Gong practitioner because of the difficulty for the Applicant in obtaining permanent employment. However, the Tribunal was not satisfied that such conduct amounted to serious harm as required by s.91R(1)(b) of the Act. The Tribunal had particular regard to the instances of serious harm set out in s.91R(2) and to the Explanatory Memorandum in respect of s.91R of the Act and High Court authority on the point.
The Tribunal found that the Applicant was not regarded as a significant Falun Gong practitioner by authorities and that he had not suffered serious harm.
The Tribunal also considered whether the Applicant had modified his conduct in relation to his Falun Gong practice and, if so, whether any such modification was influenced by a threat of harm. The Tribunal found that the Applicant had not modified his conduct in relation to Falun Gong, nor that he claimed to have changed his Falun Gong practice because of the threat of harm.
The Tribunal concluded that it was not satisfied that the Applicant had been subjected to treatment amounting to persecution before he left the PRC and that he did not claim to have participated in any activities in Australia which may negatively impact on the attitude of the Chinese authorities towards him were he to return to the PRC. The Tribunal concluded that the Applicant did not have a well founded fear of Convention related persecution in the PRC and accordingly affirmed the decision under review.
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
On 23 February 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal's decision. On 23 May 2005, the Applicant filed an amended application in this Court and confirmed that the amended application was the document upon which he relied. The amended application contains matters of submission as well is possible grounds of review. I have endeavoured in these Reasons to identify those matters that may give rise to an error capable of review. The structure of the amended application is most unclear and unhelpful.
26.
Grounds 1, 2, 3, 3.1, 3.2, 3.3, 4.1, 4.3, 4.6 and 4.7 do no more than recite background facts and for that reason, those grounds are not capable of disclosing any error capable of review.
27.
Ground 4.2 of the Applicant's amended application states that the Tribunal did not follow the relevant procedures specified in the Act.
There are no particulars attached to that allegation.
The Tribunal invited the Applicant to attend a hearing in accordance with its obligations under s.425 of the Act.
The Tribunal identified with particularity the claims made by the Applicant in its decision.
The Tribunal had regard to independent country information.
The Tribunal, having considered the evidence and material before it, proceeded to make findings and draw conclusions from those findings based on the evidence and material before it and for which it gave reasons.
Accordingly there is no error identified in this ground.
To the extent that there was any consideration by the Tribunal of the Applicant's material or statement furnished in support of his protection visa application, that information was given by the Applicant to the Tribunal. The Applicant stated in his application to the Tribunal, "Please see my file in DIMIA". In the circumstances, that information is incorporated by reference and by reason of s.424A(3)(b) and the obligations of s.424A(1) in respect of that material are not enlivened (SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 per Rares J at [24]; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10]- [13]
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Minister for Immigration & Anor [2007] FMCA 85
(2000) 204 CLR 1