SZJXC v Minister for Immigration and Citizenship

[2007] FCA 1117

FEDERAL COURT OF AUSTRALIA

SZJXC v Minister for Immigration and Citizenship [2007] FCA 1117

Migration Act 1958 (Cth) ss 91R, 424A

SZJXC v the Minister for Immigration and Citizenship [2006] FMCA 545 affirmed

SZJXC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 661 OF 2007

HEEREY  J
1 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 661OF 2007

BETWEEN:

SZJXC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY  J
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed at $2,500.

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 661 OF 2007

BETWEEN:

SZJXC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY  J
DATE:	1 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant a protection visa.  The nature of the appellant’s protection visa application, the reasons of the Tribunal and the Federal Magistrate are set out in more detail in the Federal Magistrate’s decision, SZJXC v the Minister for Immigration and Citizenship [2006] FMCA 545, which is available on the internet.

2. The appellant is a citizen of the People’s Republic of China and his claim to be a refugee rests on an alleged fear of persecution based on his involvement in the practice of Falun Gong.

3. In his protection visa application he claimed to have been a member of Falun Gong since 1999.  He said that after Falun Gong was banned by the authorities he would transport members for meetings and gatherings and provide emergency transportation.  He claimed that in March 2005 while assisting the leader to escape from detention he was caught by police and held and interrogated for eight days and suffered “serious mental and physical torment”.  He claimed to have been forced to attend re-education classes and be supervised by what was called the 610 office.  His job was “interfered many times,” [sic] the truck he drove was checked frequently, members of his family were questioned many times and “we all lost our freedom”.

   The Decision of the Tribunal

4. The Tribunal was not satisfied that the appellant provided a truthful account of his circumstances in China and did not accept as credible that the appellant was a Falun Gong practitioner or had been implicated in Falun Gong activities. 

5. The Tribunal put to the appellant a number of Falun Gong practices that had been the subject of a seminar given by Dr Benjamin Penny, an expert on China, to the Tribunal in July 2006.  As put to the appellant, Dr Penny was asked how to determine a genuine Falun Gong practitioner in Australia in 2006.  Dr Penny said that genuine Falun Gong practitioners would know the five exercises commonly practised by practitioners and be able to perform the exercises confidently.  He also advised that practitioners would have read and have some understanding of Zhuan Falun, the central text of Falun Gong, and that practitioners were commonly able to describe how they applied the moral tenets of truth, compassion and forbearance in their lives. 

6. The Tribunal was not satisfied as to the appellant’s general credibility as he was unable to demonstrate any meaningful understanding or knowledge regarding Falun Gong activities.  The Tribunal found that he had fabricated his claims in order to enhance his protection visa application.

   The decision of the Federal Magistrate

7. In the Federal Magistrates Court the grounds raised in the amended application were that:

   1.the Tribunal failed to refer to sufficient independent information.

   2.the Tribunal failed to provide adequate evidence and materials for the decision and failed to consider the application pursuant to s 91R of the Migration Act 1958 (Cth).

   3.the Tribunal failed to comply with s 424A.

8. The Federal Magistrate held in relation to the first ground that it was a factual matter for the Tribunal as to what information it considered. There was no evidence as to the second ground. There was no evidence to demonstrate that the Tribunal overlooked any of the considerations it was required to take into account. The findings of the Tribunal were open to it for the reasons given. As to s 424A, no particulars were provided to demonstrate how the section was breached. The decision of the Tribunal was based upon the assessment of the appellant’s evidence.

   The appeal to the Federal Court

9. On the appeal to this Court, the grounds of appeal were:

   1.the Tribunal failed to consider the application for a protection visa according to law and it failed to refer to sufficient independent information when considering the application;

   2.the Tribunal had bias and did not believe the claims;

   3.the Tribunal failed to carry out its statutory duty because it did not notify the appellant of the reasons or part of the reasons for affirming the decision; and

   4.the decision to refuse the application was not based on evidence or materials.

10. At the hearing of the appeal, the appellant was not legally represented but was assisted by an interpreter. When invited to address the Court the appellant through the interpreter largely repeated the grounds of appeal. He also said that the Tribunal did not deal with his claims according to s 91R, that the Tribunal did not consider independent information and that the Tribunal considered irrelevant materials. He said that the Tribunal did not apply s 424A and did not provide sufficient reasons.

11. Neither in his grounds of appeal nor in his submissions to the Court did the appellant say anything about the decision of the Federal Magistrate.  Generally speaking, he repeated before this Court the complaints that had been made to the Federal Magistrate about the Tribunal. 

12. In an appeal from the Federal Magistrates Court an appellant has to show that there was some error in the decision of the Federal Magistrate.  I am not satisfied that any such error has been shown.  The case turned on the Tribunal’s assessment of the appellant’s credibility and in particular his lack of specificity about Falun Gong.  This fact finding was within the jurisdiction of the Tribunal.  The allegation of bias has been raised but has no foundation on the material before me. 

13. I should finally mention that in relation to the opinion of Dr Penny which was put to the appellant, although not in writing, s 424A would have no application because it is within the exception in subsection (3)(a), that is to say it was information not specifically about the appellant or another person.

14. The Court orders that:

    1.The appeal be dismissed.

    2.The appellant pay the first respondent’s costs fixed at $2,500.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY .

Associate:

Dated:        1 August 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	J Mitchell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 August 2007
Date of Judgment:	1 August 2007