SZJCR v Minister for Immigration and Citizenship

[2007] FCA 420

FEDERAL COURT OF AUSTRALIA

SZJCR v Minister for Immigration and Citizenship [2007] FCA 420

SZJCR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2182 OF 2006

CONTI J
23 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2182 OF 2006

BETWEEN:

SZJCR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	23 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

2.The Refugee Review Tribunal be joined as the second respondent.

3.The appeal be dismissed.

4.The appellant to pay the first respondent’s costs assessed at $2,000.

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 2182 OF 2006

BETWEEN:

SZJCR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	23 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Federal Magistrate Emmett delivered on 17 October 2006 whereby her Honour dismissed an application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’), made on 13 June 2006 and handed down on 4 July 2006. The Tribunal affirmed the earlier decision of a delegate of the Minister made on 16 February 2006 to refuse the appellant a protection visa.

   Tribunal’s findings

2. Before the Tribunal, the appellant claimed to fear harm because she was a Falun Gong practitioner.  The appellant testified as to participation in a peaceful protest in September 1999 and as to having been arrested and detained for three days.  The appellant claimed that from May 2004 she recommenced her involvement in Falun Gong activities in China, and that as a consequence she was arrested on 11 December 2004 and was sent to a labour camp for six months.  A Canadian Chinese colleague was said to have offered to marry her so that she could obtain a visa to a western country.  The police were then said to have tried to stop her from leaving China at the airport, but allowed her to depart after her husband communicated with some ‘foreign reporters’.

3. The appellant appeared at a hearing before the Tribunal on 6 June 2006.  The Tribunal appears to have addressed all of the appellant’s claims but rejected the same on the basis of the adverse findings it made about her credibility.  The Tribunal relied on the appellant’s lack of knowledge and familiarity with key aspects and exercises of Falun Gong to find that the appellant was a highly unsatisfactory witness and had made up substantial parts of her claims.  Based on the appellant’s oral evidence at the hearing, the Tribunal member did not accept that the appellant was ever a genuine practitioner of Falun Gong.

   Proceedings in the Federal Magistrates Court

4. The appellant appeared in person at the hearing before Emmett FM which took place on 3 October 2006. In her Honour’s reasons for judgment, she summarised the background circumstances to the appellant’s claims, and the basis for the Tribunal’s rejection of the appellant’s case. Her Honour also addressed the purported ground for review raised by the appellant’s amended application filed 25 September 2006. That ground of review raised by the amended application asserted that the Tribunal breached s 424A of the Migration Act 1958 (Cth) (‘the Act’) by failing to invite the appellant to comment on inconsistencies between the appellant’s oral evidence and her primary application. Emmett FM observed that whilst the Tribunal recorded the inconsistencies, the Tribunal stated explicitly that it had not relied on any of those inconsistencies between the appellant’s oral evidence and the written claims put forward in support of her protection visa application.

5. Emmett FM further observed that the Tribunal recorded in some detail the concerns it held and which were said to arise out of the deficiencies in the appellant’s oral evidence concerning her knowledge of Falun Gong, and found that aspects of her evidence given to the Tribunal were implausible and inconsistent with the appellant having been a Falun Gong practitioner. 

6. In the result, her Honour established that such information proffered by the appellant came within the exception stipulated in s 424A(3)(b) of the Act, and accordingly that the ground the subject of the amended application had not been established. Emmett FM concluded accordingly that it was open to her to dismiss the application with costs, which she thereupon duly ordered.

   The appeal to the Federal Court

7. The notice of appeal filed by the appellant in the Federal Court of Australia on 6 November 2006 asserted that the Federal Magistrate erred in finding that there was no breach of s 424A of the Act. There is, however, no support or basis for the error so alleged.

8. It is readily apparent that the Tribunal did not commit any jurisdictional error in its assessment of the appellant’s claims.  The Tribunal did not accept the credibility of the appellant’s claims because of its dissatisfaction with the appellant’s oral evidence at the hearing.  That was a finding of fact open to the Tribunal on the evidentiary material placed before it, and no error is apparent in the way the Tribunal arrived at that finding.

9. Moreover as I have already foreshadowed, no error has been identified in the approach and findings of the learned Federal Magistrate.  The reasons of the Federal Magistrate indicate a comprehensive examination and appropriate evaluation of the appellant’s case, and her Honour’s reasons for decision reveal no error that has been identified by the appellant.  Accordingly, the appeal must be dismissed with costs.

10. Despite my sympathy for the appellant’s situation, I must of course resolve the issues arising according to law.  I must dismiss the appeal with costs, which were assessed by the Minister at $2,000. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        23 March 2007

Appellant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 February 2007
Date of Judgment:	23 March 2007