SZHJJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1000

FEDERAL COURT OF AUSTRALIA

SZHJJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1000

SZHJJ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1075 OF 2006

EMMETT J

31 JULY 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1075 OF 2006

BETWEEN: SZHJJ

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 31 JULY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time be refused. 2. The applicant pay the first respondent's costs in the sum of $1,100. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1075 OF 2006

BETWEEN: SZHJJ

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 31 JULY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of the People's Republic of China, who arrived in Australia on 26 January 2005. On 28 February 2005, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 14 March 2005, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister'), refused to grant a protection visa. On 4 May 2005, the applicant applied to the second respondent, the Refugee Review Tribunal ('the Tribunal'), for review of that decision. On 19 August 2005, the Tribunal affirmed the decision not to grant a protection visa. The applicant was notified of that decision on 8 September 2005. 2 On 17 October 2005, the applicant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal's decision and Constitutional writ relief in respect of the decision. On 4 May 2006, for reasons given on that day, the Federal Magistrates Court dismissed the application and ordered the applicant to pay the Minister's costs in the sum of $4500. 3 The application for extension of time to file a notice of appeal from those orders was filed in this Court on 5 June 2006. While the application was not far out of time, it is opposed by the Minister on the basis that the appeal would have no prospect of success. The Minister does not suggest any prejudice by reason of the short delay. 4 The Tribunal recorded that the applicant claimed that he left Hong Kong and feared to return there because he was persecuted by the secret police. He claimed that he feared persecution in Hong Kong because of his Falun Gong activities and that he could not get protection from the harm he feared. The Tribunal did not accept that the applicant was, or is, a Falun Gong practitioner, or that he practised, or practises, Falun Gong in Hong Kong or in Australia, as he claimed. The Tribunal did not accept the applicant's claim that he was beaten in 1998 and harassed by secret police for the year before he left Hong Kong to come to Australia. Nor did the Tribunal accept that the applicant had been prevented from working in Hong Kong because of his Falun Gong activities as he claimed. The Tribunal did not accept that the applicant left Hong Kong for the reasons he claimed. Further, the Tribunal did not accept that the applicant could not or would not return to Hong Kong because he feared persecution. Thus, the reason for the Tribunal's rejection of the applicant's claims is that it did not accept him as a witness of truth. 5 In any event, the Tribunal had regard to country information, which was discussed with the applicant at the hearing. The Tribunal did not consider that that information indicated that there was a crackdown on Falun Gong practitioners in Hong Kong in the same way as there was in mainland China. The country information did not support the applicant's claims that secret police were sent to Hong Kong in 1998 to seize, detain and ill-treat Falun Gong practitioners. The Tribunal did not consider that the country information supported the applicant's claims that he was harassed by secret police every night during 2004 because he was a Falun Gong practitioner and had to leave Hong Kong to escape from that harassment. 6 The Tribunal accepted that the applicant was able to demonstrate a set of exercises that he learned as Falun Gong exercises. However the Tribunal considered that, if the applicant were a genuine Falun Gong practitioner, and had been such a practitioner from 1996, he would have been able to name the main Falun Gong exercises for the Tribunal and would know the Falun Gong symbol or emblem. However, the Tribunal found that the applicant could make no attempt to do those things. 7 In the light of the country information put to the applicant, the Tribunal found that the applicant's claims about his Falun Gong practice and his treatment by secret police in Hong Kong, including his claim that he could not work in Hong Kong because of his Falun Gong activities and treatment, were not genuine and were invented by the applicant to assist his application for a protection visa. The Tribunal considered that there was no plausible evidence before it that the applicant has suffered, or will suffer, persecution for reasons under the Convention and Protocol relating to the Status of Refugees ('the Convention') from members of the secret police or anyone else in Hong Kong, either now or in the reasonably foreseeable future if he returns there. 8 The grounds of the applicant's complaint to the Federal Magistrates Court were as follows: '(1) RRT was subjectively seeking reasons to decide against the applicant rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant claim of a well founded fear of persecution and there is a real chance he will be persecuted;