SZGVH v Minister for Immigration & Citizenship

[2007] FCA 948

FEDERAL COURT OF AUSTRALIA

SZGVH v Minister for Immigration & Citizenship [2007] FCA 948

SZGVH v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD332 OF 2007

EMMETT J
7 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD332 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVH
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	7 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The Appellant pay the First Respondent’s costs in the sum of $1100.

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	NSD332 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVH
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	7 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China.  He arrived in Australia on 2 December 2004.  On 10 January 2005, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). On 19 February 2005, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), then known as the Minister for Immigration and Multicultural and Indigenous Affairs, refused to grant a protection visa. On 18 March 2005, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. On 1 June 2005, the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 23 June 2005.

2. On 25 July 2005, the appellant commenced a proceeding in the Federal Magistrates Court, seeking judicial review of the Tribunal’s decision.  An amended application was filed on 9 November 2005.  On 14 February 2007, for reasons given on that day, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered that the appellant pay the Minister’s costs, in the sum of $4,700.  By notice of appeal, filed on 7 March 2007, the appellant appeals to the Federal Court from the orders of the Federal Magistrates Court. 

3. When the matter was called on for hearing today, there was no appearance for the appellant.  He was notified by the registry on 5 April 2007 and by the Minister’s solicitors on 11 April 2007, of the hearing time today.  The Minister, in the circumstances, asks that the appeal be dismissed.  I propose to accede to that request, but consider that it is appropriate that I say something about the claims of the appellant before doing so.

4. In his primary application, the appellant asserted that he had been influenced by his mother to start practising Falun Gong.  He claimed that he and his mother were arrested, that his mother was detained for 15 days and that he was detained for a year.  He said he was asked to sign a paper giving up Falun Gong, but he refused.  He claimed he was beaten with an electric rod and tortured.  After his release, he decided to go overseas. 

5. At the hearing, the Tribunal asked the appellant about claims that he had made to the Australian embassy in order to obtain a business visa.  After initially saying that he had applied through an agent he did not know, he said that he was travelling to Australia to collect a business debt owed by an Australian company to a Chinese company.  The Tribunal then asked the appellant a number of questions about Falun Gong.  He said that he had started practising in 1998 and practises with a group two to three times a week.  He said that when he could not go with the group, he practised at home with his mother.  He also claimed that he practised with others in Australia.

6. However, the appellant could not tell the Tribunal what the Falun was or where it was located.  He could not correctly name the first Falun Gong exercise and, when asked to name any one exercise, stated that he could not remember.  While he correctly stated that there were five exercises, when asked to demonstrate one, telling which one it was, the appellant could not tell the Tribunal what he was about to demonstrate.  The Tribunal put to the appellant that it was normal to practise all five exercises in order.  It asked him to demonstrate the first he practised when practising with others.  He said that he could not remember.

7. The Tribunal considered that a person who has beliefs that he is not willing to renounce, thereby suffering a year in detention and physical abuse, would be likely to be able to talk about those beliefs, at least to some extent.  The Tribunal considered that the appellant’s ignorance of even simple things about Falun Gong beliefs was not consistent with his claim to have suffered a year in detention by reason of his refusal to renounce Falun Gong practice.

8. Further, the Tribunal considered that a person who has practised regularly with a practice group for nearly seven years, including in Australia, would be able to name the exercises or a minimum of at least one of them, and to demonstrate the first exercise.  The appellant’s inability to do either satisfied the Tribunal that he is not, as he claimed, a practitioner of Falun Gong.

9. Accordingly, the Tribunal was unable to accept that the appellant had been detained for reason of his practice of Falun Gong or that he has been beaten or tortured for that reason.  The Tribunal, therefore, was not satisfied that there is a real chance of the appellant suffering harm, amounting to persecution, in China for a Convention reason if he were to return there in the foreseeable future.

10. The amended application, filed on behalf of the appellant in the Federal Magistrates Court, mentions three grounds, as follows:

    “1.The Tribunal made a mistake.  They are not addressing the appellant’s specific claim of persecution, owning [sic] to his participating in Falun Gong, and unfairly made the unfavourable decision, based on the so-called country’s information.

    2.The Tribunal failed to look at the fact fairly and reasonably and ignored the truth, that the appellant would face a real chance of persecution upon returning to China.

    3.The Tribunal’s ground for rejection is neither sufficient nor serious, which disregarded the whole evidence provided by the appellant, regarding the current situation in China.”

    The Federal Magistrates Court considered those grounds and concluded that they are lacking in substance.  The Tribunal clearly addressed the appellant’s claims and took into account clearly relevant considerations.  The primary judge considered that, to the extent that the appellant was inviting the Court to reconsider the merits of his claim, that was a task that was not within the Court’s jurisdiction.  For that reason, his Honour dismissed the application.

11. The grounds in the notice of appeal are unhelpful.  They are as follows:

    “1.The Tribunal failed to carry out its statutory duty, as the Tribunal Member could not demonstrate that the appellant does not face a risk of suffering harm.

    2.The Tribunal failed to exercise its jurisdiction by not observing procedures that it was required by the Act to observe.”

12. No mention is made of any error on the part of the Federal Magistrates Court.  However, even if the notice of appeal were understood as specifying grounds that the Federal Magistrates Court failed to set aside the Tribunal’s decision, by reason of the errors asserted, they do not contain any particulars and appear to depart from the grounds specified in the application to the Federal Magistrates Court. 

13. There is no substance in any of the grounds of appeal and it follows that the appeal must be dismissed.

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

Associate:

Dated:       25 June 2007

The Appellant: did not appear.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 May 2007
Date of Judgment:	7 May 2007