SZJNJ v Minister for Immigration and Citizenship

[2007] FCA 2040

FEDERAL COURT OF AUSTRALIA

SZJNJ v Minister for Immigration and Citizenship [2007] FCA 2040

SZJNJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1644 OF 2007

DOWSETT J
20 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1644 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	20 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

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

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 1644 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	20 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a citizen of China, arrived in Australia on 20 February 2006.  On 4 April 2006 he applied for a protection visa.  A delegate of the first respondent (the “Minister”) declined the application.  The Refugee Review Tribunal (the “Tribunal”) affirmed that decision.  The appellant applied to the Federal Magistrates Court for review of the decision but was unsuccessful.  This is an appeal from the Federal Magistrate’s decision.

2. The appellant claims to be a practitioner of Falun Gong.  In his visa application the following sentence appears:

   ‘The[n] I introduced Mr Huang Jiah Qiang into our team.’

3. The Tribunal questioned the appellant about the practice of “Jian Qiang” which also appears in the transcript as “Juan Qiang”.  The Tribunal appears to have understood Jian Qing to be some form of Falun Gong.  The questioning concerning that subject was apparently designed to test the appellant’s knowledge concerning it.  The Tribunal had, in fact, misunderstood the reference in the appellant’s application, which was to a person named Jian Qiang.  The appellant immediately denied any knowledge of the term and, when asked questions concerning preparation of his application, attributed its use to a friend.  The Tribunal then proceeded to question him concerning his practice of Falun Gong.  The relevant questions and answers appear in the Tribunal’s reasons.  It is not necessary that I set them out in these reasons.

4. At the heart of the appellant’s claim before the Federal Magistrate and before me was the assertion that the Tribunal’s reference to Jian Qiang as a practice rather than a person confused him, and that such confusion affected his subsequent performance at the interview.  However I see no evidence of that in the questions and answers which followed.  The initial questioning concerning Jian Qiang took only a short time and constituted a discrete part of the hearing.  In any event mere confusion would not constitute jurisdictional error. 

5. The Tribunal considered that the appellant had demonstrated a very poor knowledge of Falun Gong and inferred that he was not a practising adherent.  This view was reinforced by the fact that he had not sought to practise Falun Gong in Sydney.  The Tribunal therefore concluded that there was little chance that he would wish to continue the practice of Falun Gong in public or in private, and that there was no real chance that he would face persecution in China for such practice.  In effect the Tribunal did not accept his claims.

6. Before the Federal Magistrate the appellant alleged that the Tribunal’s decision was infected with jurisdictional error in that it had failed to invite him to comment on adverse information which might be a reason for it to affirm the decision under review.  However the particulars make it clear that the real subject of the appellant’s complaint was the examination concerning Juan Qiang.  No information was identified as information to which his attention ought to have been directed pursuant to s 424A.  There is no reason to believe that any matter arising out of the Tribunal’s misunderstanding concerning the reference to Mr Huang Jian Qiang affected its decision.  In those circumstances the Federal Magistrate concluded that no jurisdictional error had been shown.

7. The grounds of appeal from the Federal Magistrate are expressed in the same terms as the grounds of the application to the Federal Magistrate.  I suppose that they must be interpreted as an assertion that the Federal Magistrate erred in not intervening upon those grounds.  As I have indicated there is no reason to believe that the Tribunal’s error affected its judgment, and I see no basis for the appellant’s assertion that he was confused as a result of it.  In any event such confusion would not amount to jurisdictional error. 

8. Finally, in the course of submissions the appellant has ventilated certain matters going to the merits of his case.  He has spoken of the fact that Falun Gong is more than just a series of exercises.  This may be a reference to the Tribunal’s reliance upon the fact that he was unable to demonstrate certain basic exercises.  However that does not demonstrate jurisdictional error.  In the course of questioning the appellant and in its reasons for decision, the Tribunal indicated that it had ‘met many Falun Gong adherents who were deeply committed to the philosophy and methodology of the Dafa while others only exercise for their health and don’t know anything about the philosophy.’  This suggested an understanding of the appellant’s point.  There is no reason to believe that the Tribunal misunderstood the nature of Falun Gong. 

9. The appellant was also at pains to explain that the nature of the Falun Gong organisation was such that it provoked distrust in the government of China and therefore persecution.  I do not understand those matters to have been doubted by the Tribunal.  They are virtually common knowledge in the Australian community.  In any event, again, they do nothing to demonstrate jurisdictional error. 

10. The appeal must be dismissed.  I order that the appellant pay the first respondent’s costs of the appeal.

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

Associate:

Dated:       19 December 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms V McWilliam
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	20 November 2007
Date of Judgment:	20 November 2007