SZFXT v Minister for Immigration and Citizenship

[2007] FCA 242

FEDERAL COURT OF AUSTRALIA

SZFXT v Minister for Immigration and Citizenship [2007] FCA 242

SZFXT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1812 OF 2006

CONTI J
1 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1812 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFXT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	26 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

3.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

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 1812 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFXT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	1 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the judgment of Federal Magistrate Raphael delivered 30 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down 17 February 2005.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2. The appellant, who is a citizen of the People's Republic of China, arrived in Australia on 22 August 2004.  On 6 September 2004 she lodged an application for a protection (class XA) visa.  She claimed to be a person to whom protection obligations were owed because she was a Falun Gong practitioner and feared persecution by the authorities in China.  The appellant further claimed that she had been detained and mistreated after printing and distributing certain Falun Gong material.  On 17 September 2004 a delegate of the Minister refused the application for a protection visa. 

3. By application filed on 20 October 2004, the appellant sought review of that decision by the Tribunal.  The appellant appeared at a hearing before the Tribunal on 21 December 2004 and gave oral evidence to the Tribunal in support of her claims.  The Tribunal asked the appellant a series of questions about her Falun Gong beliefs and practices and her activities in China, and also in Singapore where the appellant lived before coming to Australia.

4. As foreshadowed, on 17 February 2005 the Tribunal handed down its decision by way of confirmation of the delegate's decision not to grant the appellant a protection visa.  The Tribunal found that the appellant was not a credible or reliable witness, and further that aspects of her evidence were inconsistent. The Tribunal’s conclusions were summarised essentially in the following passage:

   ‘In light of the applicant's limited knowledge of Falun Gong, the adverse credibility finding and on the basis of the evidence as a whole, the Tribunal rejects the applicant's claim that she is a Falun Gong practitioner or that she was ever a Falun Gong practitioner in China. The Tribunal furthermore, rejects her claim that she printed and distributed material for Falun Gong in China and that she was detained and mistreated for that reason. The Tribunal is satisfied that the applicant has fabricated this claim to support a protection visa application. The Tribunal is therefore not satisfied that she is at risk of harm because of her involvement with Falun Gong in China or because she distributed printed material in support of Falun Gong or its detained leaders. Given this finding, it follows that the Tribunal does not accept that the applicant has ever been detained or persecuted by the Chinese authorities for reasons of her practise of Falun Gong.’

   Federal Magistrates Court proceedings

5. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The application raised the following grounds of review:

   ‘1.       I am a refugee who meet the refugee criteria.

   2.I fear persecution for reason of membership of a particular social group – Falun Gong.

   3.I believe that my fear of persecution is well-founded.  My friends introduced Falun Gong to me in order to strength my health.  However, a decree was issued by the Chinese government to forbid practising Falun Gong and began to suppress it in a big way.  In order to make the government understand us, we volunteered to write petitions and photocopy 10 thousands of papers.  Public Security Bureau got the wind of it and they drove the police car to my company and seal it.  They locked me up for 20 hours a day and questioned me till morning.  The next day I was again summoned to the police station.  They continuously tortured me for the whole week.  I was released one week later because my former husband admitted that he photocopied the petitions by himself.’

6. Federal Magistrate Raphael observed that the application placed before him did not assist in identifying any allegation by the appellant of jurisdictional error on the part of the Tribunal, and did no more than reassert the appellant's claim to refugee status.  His Honour therefore concluded that the application constituted an impermissible attempt to obtain merits review of the Tribunal’s decision.

7. Although the application below for review did not identify any meaningful allegation of jurisdictional error, Raphael FM assessed the Tribunal’s decision with a view to determining whether the same was affected by jurisdictional error. His Honour considered the potential operation of s 424A of the Migration Act 1958 (Cth) (‘the Act’), and concluded that the Tribunal did not rely on any information to which s 424A applied as the reason or a part of the reason for affirming the decision. Raphael FM observed that the Tribunal made reference to information which it obtained as to a visa application which the appellant had made to the Australian High Commission in Singapore. His Honour concluded that as the Tribunal did not rely on this information as the reason or a part of the reason for affirming the decision under review, the Tribunal was not under any obligation to provide the appellant with written notice of the information in accordance with s 424A. As to the Tribunal's findings regarding the credibility of the appellant, his Honour observed that it is not the role of a court on an application for judicial review to disturb findings of credibility which are based on readily available evidence or the Tribunal’s assessment of the narrative of events given by an applicant, his Honour citing SZAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1719 at [12] and WAJSv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [18].

8. By decision delivered on 30 August 2006, Raphael FM dismissed the appellant’s application for review.

   Grounds of appeal raised by the appellant

9. By notice of appeal filed on 19 September 2006, the appellant appealed from the whole of the judgment of Raphael FM and relied on the following purported grounds:

   ‘1.I fear persecution for reason of membership of a particular social group – Falun Gong.

   2.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   3.I believe that my fear of persecution is well-founded if I return to China.’

   10          The notice of appeal does not provide any viable formulation of error on the part of Raphael FM.  Nor does the notice of appeal identify any basis on which it could be said that the Tribunal fell into jurisdictional error, whether previously raised or otherwise.  Ground 2 is not a meaningful ground of review in an appeal.  Grounds 1 and 3 in substance do no more than restate the appellant’s factual assertion that she is a person to whom protection obligations are owed.  At the hearing of the appeal, the appellant, who presented as a pleasant and polite woman, addressed the Court briefly, but was unable to add any submission or to articulate any reason for upholding her appeal. 

10. I agree with counsel for the Minister that no error has been distilled in the reasons for judgment of Raphael FM below.  In relation to the underlying issue as to whether there was any jurisdictional error on the part of the Tribunal, the appellant did not identify any such error in the Tribunal’s decision and moreover no such error is apparent from the Tribunal’s reasons. 

11. The appeal should therefore be dismissed with costs.

12. The name of the first respondent should be amended to Minister for Immigration and Citizenship, as reflected in the title to these reasons. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        1 March 2007

Appellant appeared in person
Counsel for the Respondent:	Mr S Free
Solicitor for the Respondent:	Blake Dawson Waldron Lawyers
Date of Hearing:	26 February 2007
Date of Judgment:	1 March 2007