BRGAA of 2009 v Minister for Immigration and Citizenship

[2011] HCASL 114

BRGAA OF 2009
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 114
B16/2011

1. The applicant is a citizen of the People's Republic of China.  She arrived in Australia in August 2008 on a visitor visa.  In September 2008 she applied for a protection visa.  She claims to fear persecution in China because she is a Falun Gong practitioner.  In the statement attached to her application she gave an account of having been arrested in China in August 2003 and having been badly beaten while in custody.  She said that she had been transferred to a labour camp and that after her discharge she had not enjoyed the personal freedom that most people enjoy.

2. The applicant failed to attend a scheduled interview with an official of the Department of Immigration.  The Minister's delegate considered the circumstance that the applicant had been able to leave China without difficulty suggested that she was not a person of concern to the Chinese authorities.  The delegate was not satisfied that the applicant had substantiated her claims.  The application was refused. 

3. The applicant sought a merits review of the delegate's decision before the Refugee Review Tribunal.  She failed to attend the hearing before the Tribunal.  The Tribunal was not satisfied that the applicant had established her claims.  It considered her ability to leave China without difficulty was suggestive that she was not a person of interest to the Chinese authorities.  That conclusion was buttressed by the fact that she had resided at the same address from the time of her claimed arrest and she had maintained a job as a primary school teacher.  The Tribunal affirmed the delegate's decision.

4. The applicant sought judicial review of the Tribunal's decision before the Federal Magistrates Court (Burnett FM).  The applicant was assisted by pro bono counsel in the Federal Magistrates Court.  The thrust of the challenge in that Court was that the Tribunal had failed to take into account assertions made in the applicant's statement in arriving at its conclusion that she had not had difficulty in obtaining a passport or in leaving China.  Among the claims made in the statement was that she had paid a colleague "to have her so-called criminal record washed and for a passport to be issued".  The applicant had also stated in the form accompanying the statement that she had left China "legally" and that she had not had difficulty obtaining a travel document in her home country.  There was no explanation in the Tribunal's reasons of how this conflict was resolved.  Burnett FM noted that the Tribunal had expressed doubt about the veracity of the applicant's claims in circumstances in which it had not had the opportunity to test those claims.  Logically, his Honour considered the Tribunal could only have reached its conclusion on the basis that it did not accept the underlying claim.  Although the finding that the applicant had left China without difficulty was contrary to an assertion made in her written statement, the basis for its rejection was clear.  His Honour concluded that the Tribunal's decision was not tainted by jurisdictional error. 

5. An appeal to the Federal Court (Collier J) was dismissed.

6. The applicant applies for special leave to appeal from the orders of the Federal Court.  She asserts that the Tribunal failed to take into account that it was impossible for her to provide evidence from China to demonstrate that she was jailed there.  The written case consists of a number of factual assertions.  If special leave to appeal were granted, the appeal would have no prospects of success. 

7. The application is dismissed.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

J.D. Heydon
8 June 2011 V.M. Bell