SZJKE v Minister for Immigration and Citizenship

[2007] FCA 796

FEDERAL COURT OF AUSTRALIA

SZJKE v Minister for Immigration and Citizenship [2007] FCA 796

SZJKE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD615 OF 2007

COLLIER J
23 MAY 2007
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD615 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJKE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	23 MAY 2007
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD615 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJKE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	23 MAY 2007
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Turner FM of 23 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 August 2006 and handed down on 31 August 2006. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

   Background

2. The appellant is a citizen of the People’s Republic of China (“PRC”) who arrived in Australia on 6 February 2006. On 15 March 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 3 May 2006. On 5 June 2006 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed to have well-founded fear of persecution by the authorities because she was a Falun Gong practitioner. The appellant provided a statement attached to her protection visa application which expressed her claims. In that statement, she claimed she had commenced practicing “six years ago” (from the date of application which was March 2006) and that she would practice in secret along with her group. The appellant claimed that in May 2002 she was required to report to the police station and from that time was forced to go there every week. The appellant claimed that when the PRC government realised that such penalties had no effect they began to put practitioners in gaol. The appellant claimed that in 2004 friends assisted her to obtain a passport and she came to Australia in 2006.

4. In her application to the Tribunal, the application attached a more detailed statement of her claims. She provided similar claims to her protection visa application, providing further details, but also gave details of further incidents. She claimed to have practiced Falun Gong since February 1999 to improve her health. She claimed that on 15 March 2000 the local police ordered the appellant to attend a “brainwashing session” and she was released after signing a guarantee that she would stop practising Falun Gong. The appellant claimed she did so under threat of being sent to a labour reform camp. She claimed that as a result of the stress and fear, her child was born premature and she could not breastfeed her child.

5. By letter dated 23 June 2006, the Tribunal invited the appellant to a hearing scheduled for 19 July 2006. The appellant attended the hearing and gave oral evidence with the assistance of an interpreter. She provided to the Tribunal her passport, photographs in support of her claims, and a statutory declaration dated 14 July 2006 by a third party which stated:

   I began to meet [the appellant] on Thursday evenings at Camperdown more than one month ago, where we read “Zhuan Falun” book and share experiences together.
   She also demonstrates in front of Chinese official buildings in Sydney on Sunday morning.  She also took part in anti-torture exhibition in Canberra.

6. After the hearing the Tribunal presented the appellant a letter pursuant to s 424A Migration Act 1958 (Cth) (“the Act”), dated 19 July 2006, which outlined contradictions and inconsistencies between the initial protection visa application and information presented at the hearing as well as outlining similarities with a statement of claim previously submitted to the Department on behalf of another appellant. On 28 July 2006 the appellant provided a response to this letter which explained the process by which the protection visa was completed, namely that the appellant provided her claims to her migration agent who completed the application for her.

   The decision of the Tribunal

7. The Tribunal noted that there were a number of contradictions in the vague claims made by the appellant in her application for a protection visa and the claims she submitted to the Tribunal. The Tribunal expressed its concern that her claims to the Department “looked remarkably similar to another set of claims which had been submitted to the Department on behalf of another applicant a year earlier”. Although the appellant attributed these difficulties to the migration agent who assisted in the earlier application the Tribunal had some difficulty accepting this explanation. The Tribunal found that the first statement was made with the consent of the appellant and that she was aware of its contents.

8. The contradictions between the initial protection visa application and the evidence provided to the Tribunal teamed with the similarity of the initial statement of claim to another applicant’s statement of claim seen previously by the Tribunal led the Tribunal to conclude that the statements did not represent accounts of the appellant’s own personal experiences.

9. The Tribunal found that the appellant’s level of knowledge was not that of a practitioner who had commenced practice in 1999 and the Tribunal would have expected her to have more in-depth knowledge. The Tribunal found that the level of knowledge demonstrated by the appellant could have easily been obtained from Falun Gong publications. The Tribunal found that the appellant was not a practitioner of Falun Gong in the PRC.

10. The Tribunal addressed the supporting documents provided by the appellant. It accepted the statutory declaration by a third party submitted by the appellant in support of her application but inferred that the writer had only known the appellant for a few months. Furthermore, the statutory declaration still allowed the Tribunal to conclude that the appellant had learnt her Falun Gong while in Australia. Similarly the photos submitted were given little weight. The statutory declaration and the photographs did not support the claims that the appellant had knowledge of Falun Gong before she came to Australia. The Tribunal found the appellant’s knowledge of Falun Gong to have been acquired in Australia since her arrival and that her participation in Falun Gong in Australia was to enhance her claims. The Tribunal consequently disregarded this pursuant to s 91R(3) of the Act.

11. Accordingly, the Tribunal concluded that if the appellant were to return to the PRC in the reasonably foreseeable future she would have no reason to involve herself in Falun Gong activities and therefore there was no reason for her to come to the unfavourable attention of the PRC authorities in the future.  As the Tribunal rejected the appellant’s claims, it did not accept that she had previously come to the adverse attention of the authorities.  Consequently, the Tribunal affirmed the decision of the delegate of the Minister.

    Grounds before the Federal Magistrate

12. On 22 September 2006 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. That application raised two grounds of appeal which essentially asserted that the Tribunal did not accept the claims of the appellant in relation to when she commenced her practice of Falun Gong and as such made a jurisdictional error and that the conclusion that the appellant only participated in Falun Gong in Australia in order to enhance her claims was unfair. An amended application was filed on 23 March 2007 which additionally claimed that the Tribunal acted in breach of s 424A of the Act by failing to provide independent country information contained in the decision to the appellant for comment.

    Decision of the Federal Magistrate

13. His Honour considered the grounds raised by both applications. In relation to the first ground in the original application, the Federal Magistrate found that the Tribunal gave detailed reasons for its finding which was open to it on the evidence before it. That the Tribunal did not accept the explanation given by the appellant in relation to the questions it raised with the appellant by way of letter sent 19 July 2006 was relevant only to the finding of fact that the appellant was not a Falun Gong practitioner and therefore was not subject to review. The second ground of the application was similarly rejected as a finding of fact not open to review. The ground in the amended application was rejected as independent country information was excluded under s 424A(3)(a) of the Act. Accordingly, his Honour was of the view that he had no jurisdiction to interfere with the decision of the Tribunal, and dismissed the appellant’s application.

    Notice of appeal

14. By notice of appeal to this Court filed 12 April 2007 the appellant provided a truncated version of s 424A of the Act and no particulars were provided. The appellant did not file any written submissions.

15. By notice of appeal filed 12 April 2007 the appellant stated as the grounds of appeal the following:

    Section 424A of the Migration Act provides:

    (1)Subject to subsection (3), the Tribunal must:

    a.give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    b.ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and

    c.invite the applicant to comment on it.

    (2)...

    (3)This section does not apply to information:

    a....

    b.That the applicant gave for the purpose of the application.

16. Clearly, the ground of appeal claimed by the appellant is simply a restatement of portions of s 424A Migration Act 1958 (Cth), which ground of appeal of itself does not make sense in the absence of particularisation.

17. At the hearing I asked the appellant to explain the ground of appeal, in terms of an error of the Federal Magistrate from whose decision the appeal was made.

18. The appellant requested the Court to reconsider her case on humanitarian grounds, and said that the Tribunal was biased and failed to consider her case on its own merits.

19. The respondent filed written submissions, referable to the decision of Turner FM concerning s 424A.

20. The Federal Magistrate considered in some detail the issue whether there had been a failure by the Tribunal to comply with the requirements of s 424A in this case. For reasons given at paras 12-17 of the Reasons for Judgment, Turner FM rejected the appellant’s grounds for review referable to s 424A. I see no error in the reasons given by his Honour.

21. Further, there is no evidence before me that the Tribunal was in any way biased against the appellant. Allegations of bias must be clearly alleged and proved, and that is not the case here.

22. In relation to the oral claim of the appellant that the Tribunal did not properly consider her case on its merits, this is contradicted by the reasons for decision of the Tribunal where detailed reference was made to the personal circumstances of the appellant and to her statements. The appellant’s disagreement with the decision of the Tribunal does not constitute a failure on the part of the Tribunal to give due consideration to her case.

23. In light of these findings it is appropriate to dismiss the appeal.

    THE COURT ORDERS THAT:

    1.The appeal be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        23 May 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 May 2007
Date of Judgment:	23 May 2007