CAT/C/49/D/416/2010 5.3 The complainant submits that there remains in China continuing and sustained Government-initiated oppression and persecution of Falun Gong, the purpose of which is to completely eradicate the practice. He refers to the International Religious Freedom Report issued in September 2011 by the United States Department of State, which indicates that detentions of Falun Gong practitioners continue, and notes that since 1999 about 6,000 Falun Gong practitioners had been sentenced to jail sentences and some 100,000 had been subjected to “administrative sentences” of one to three years internment in camps. The report also states that neighbourhood groups were reportedly instructed to report on Falun Gong members, and refers to several cases in which Falun Gong practitioners had been arrested and disappeared and to one case where a practitioner, sentenced to internment in a camp, had been tortured. The complainant submits that the Chinese authorities have a record of his involvement in Falun Gong and that they are aware that he has been out of the country for some time. He believes that if returned he will be interrogated immediately on arrival, which may lead to his arrest, detention, internment in a labour camp and further torture. The complainant maintains that the country background information, together with his personal record of Falun Gong practice, arrest and torture in the past establish firm grounds to believe that he would personally face a foreseeable and real risk of torture if returned to China. 5.4 The complainant submits that his protection claims have not been considered properly by the domestic processes available in Australia, and in particular that they have not been subjected to a “robust process of merits review”. At the stage when his protection claims were submitted, there was no opportunity granted for an interview, which he believes would have allowed him to provide convincing testimony to support his claims. He maintains that his migration agent failed to prepare properly his application for a Protection Visa, that he failed to disclose himself as a registered migration agent on the Protection Visa and Refugee Review Tribunal applications, and that he submitted to the authorities wrong information as to the address of the complainant. 5.5 The complainant further maintains that the Federal Magistrates Court and other federal courts have no jurisdiction to review the matters of his case. According to the privative clause referred to in part 8, division 1 of the Migration Act 1958, federal courts are limited to decisions relating to jurisdictional error and cannot review whether an asylum seeker is or is not a refugee under the 1951 Convention relating to the Status of Refugees. If a jurisdictional error is found, the matter is remitted to another Refugee Review Tribunal. Where there exists “migration agent fraud” in a person’s protection application, that may be found to amount to jurisdictional error, but such findings are rare. Where a “lesser finding of migration agent negligence or dishonesty” is made, that is not considered a jurisdictional error and the court cannot rule that the case be returned to the Refugee Review Tribunal for a further hearing opportunity. 5.6 The complainant maintains that in his case evidence to support the misconduct of his migration agent has been disregarded7 and that the Federal Magistrates Court does not refer to the existence or not of a migration fraud, but merely states that “the Tribunal was entitled to exercise its discretion as it did pursuant to s.426A of the Act to proceed to make its decision on the review without taking any further action to enable the applicant to appear 7 8 To prove that he used a particular migration agent the complainant had submitted a business card of the agent and receipts for payment for English translation of documents, issued by his office. Nonetheless, the migration agent allegedly did not disclose that he had prepared the application and the appeal. The complainant also maintains that, although he had notified the immigration department of a change in his address on 14 March 2005, through the official change of address form, on 6 April 2005, when his appeal to the Refugee Review Tribunal was lodged, the migration agent used the old, and therefore incorrect, address that was noted on the Protection Visa application.