SZKAD v Minister for Immigration and Citizenship

[2007] FCA 1304

FEDERAL COURT OF AUSTRALIA

SZKAD v Minister for Immigration and Citizenship
[2007] FCA 1304

SZKAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 755 OF 2007

RARES  J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 755 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES  J
DATE OF ORDER:	30 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time for the applicant to file the application for leave to appeal is extended to 1 May 2007.

2.The application for leave to appeal is dismissed.

3.The applicant pay the first respondent’s costs fixed in the sum of $2,700.

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 755 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES  J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from the decision of the Federal Magistrates Court in SZKAD v Minister for Immigration [2007] FMCA 599. There his Honour dismissed an application for constitutional writ relief on the basis that under r 44.12 of the Federal Magistrates Court Rules 2001 (Cth) the application did not raise an arguable case for the relief claimed.

2. Through some error in the postal system the application for leave was filed out of time but the applicant has provided an adequate explanation for what has occurred and I have granted her application for an extension of time for her to file the application for leave to appeal so that I can hear the application for leave on its merits.

3. In determining whether I should grant leave to appeal I must be satisfied the applicant for leave has established that the decision in question, here that of the Federal Magistrates Court, is attended with sufficient doubt to warrant the grant of leave and also that substantial injustice would result from the refusal of leave to appeal.  Bienstein v Bienstein (2003) 195 ALR 225 at 231[29] per McHugh, Kirby and Callinan JJ.

4. An application for an order to show cause under r 44.12 of the Federal Magistrates Court Rules is an interlocutory proceeding. So much is provided by r 44.12(2), but in any event such a result follows because a dismissal of a proceeding without a determination on the merits is of its nature interlocutory, even though as a matter of practice it may have the effect of virtually determining rights although not as a matter of law: cp Re Luck (2003) 203 ALR 1 at 3-4 [6]-[9] per McHugh ACJ, Gummow and Heydon JJ.

   THE APPLICANT’S CLAIMS

5. The applicant is a citizen of the People’s Republic of China.  She claimed that she was owed protection obligations on her arrival in Australia in June 2006 because she was a practitioner of Falun Gong.  She had made three substantive claims in her application for a protection visa.  These each flowed from her claim that she had commenced to practice Falun Gong in about 1998 with encouragement from her brother who had already commenced practice in the preceding year.  Her first claim was that she and her brother were persecuted by the Chinese local police in 2001 and were taken to a local police station, locked in a small room with other practitioners in bad conditions, deprived of sleep and physically mistreated.  She claimed to have been the subject of a re-education attempt by the Chinese police until being released 15 days after her arrest. This claim also involved her parents securing her release by paying considerable bribes to the police and giving guarantees that she and her brother would not practice Falun Gong any more.

6. The second claim was that when her employer found out that she practised Falun Gong she was dismissed because the employer did not want any trouble to be visited upon it as a result of her activities.  After that, the applicant claimed she was unemployed until about May 2003, when she found another job a considerable distance away from her home requiring her to undertake arduous travel to and from work. 

7. Her third claim was that the local police found out that, despite the circumstances of her 2001 mistreatment and the guarantees given by her parents, she still practised Falun Gong underground.  She claimed to have been reported by a neighbour to the police who one night in December 2005 raided her home, arresting her husband because she was away.  She claimed to have paid money to obtain a passport so as to leave China, finally arriving in Australia in June 2006.

   THE TRIBUNAL’S DECISION

8. The Refugee Review Tribunal considered in some detail the applicant’s claims when it reviewed the delegate of the Minister’s decision to refuse the applicant a protection visa.  Although the Tribunal accepted that the applicant was able to demonstrate some knowledge of the exercises of Falun Gong, it concluded that the applicant had no substantive knowledge of any of the works of Master Li, the founder of Falun Gong, or of the philosophical underpinnings or basis of the exercises which the practise of Falun Gong involves.  The Tribunal dealt at length with issues relating to the plausibility of the applicant’s account.  It found, for example, that she provided no plausible explanation as to why, if her family had been able to obtain her release from the 2001 detention through their connections, a bribe still had to be paid to the police. Whether one would regard that as being a matter requiring further explanation, it is not a matter for the Court.  It was for the Tribunal to find the facts on the material before it.  The Court is not able to conduct a merits review.

9. Likewise, the Tribunal’s method of examination of the applicant appeared on one reading to require her to explain at a philosophical level and in some detail works associated with Falun Gong and its underlying philosophies.  The Tribunal however did note independent country information suggesting that to bring health benefits, the physical exercises of a related, but independent, form of practice, Qigong, had to be accompanied by moral cultivation.  The independent country information before the Tribunal noted that, for Falun Gong, moral cultivation involves spiritual exercise as a way of focusing the mind.  On that basis and after its questioning of the applicant, the Tribunal concluded that it was not satisfied that her knowledge was that of a genuine Falun Gong adherent, let alone one who had eight years of experience.  It was particularly concerned about her lack of familiarity displayed in the Falun Gong source books.

10. The Tribunal also took the view that the applicant’s evidence about her experiences in 2001 and 2006 was implausible and contradictory.  It did not accept, on the evidence before it, that she had ever come to the negative attention of the authorities of the People’s Republic of China in respect of her allegations about her adherence to Falun Gong.  Of particular significance in the Tribunal’s reasoning was the fact that the applicant had spent four days visiting South Korea using her passport in April 2006.  She gave a number of different and contradictory explanations to the Tribunal about that visit. 

11. The Tribunal had asked her if the Public Security Bureau, the Chinese Police, was pursuing her at the time she obtained the passport and she had said it was.  She told the Tribunal that her family had been able to use its connections to help with the authorising of a passport by one branch of the PSB, while other parts of the PSB were searching for her to arrest her.  She told the Tribunal that since before she obtained her passport she feared being arrested in the event of her return to the PRC.  When she presented her passport at the Tribunal hearing it showed that she had entered South Korea on 8 April 2006 and departed on 12 April 2006, re-entering China on the latter date, apparently without incident.  Not unnaturally the Tribunal put to the applicant that it was concerned about that sequence of events in light of the evidence which she had given immediately beforehand about needing to flee China to avoid arrest and fearing arrest upon return to the country.  Initially, she said that she had gone to South Korea because she needed to show the Australian Embassy in Beijing a history of properly conducted travel. Unsurprisingly, the Tribunal was unsatisfied with that response and asked her why she was prepared to re-enter China having arrived in South Korea in the circumstances which she had explained.  She then said that she had gone to South Korea because she wanted to have a holiday with her colleagues who were associated with her work. 

12. The Tribunal noted that going on holidays in circumstances of fear of arrest and returning to the country to which that fear was directed did not seem to be consistent with her claims. The Tribunal noted that the applicant’s next response was again a change of her evidence.  She had then said she went to South Korea hoping she could practice Falun Gong freely and discovered that after she arrived, she could not, as a result of which she decided to return to China.  The Tribunal pointed out it found a problem with this account on the basis that in her two previous accounts she had not suggested that she had had any motivation to stay in South Korea on this trip.  The Tribunal accepted that the applicant might not have been able to obtain a visa to travel to Australia unless she had shown on her passport a history of properly conducted travel and a return to the Peoples Republic of China.  But it found that this did not add weight to her claims to be a person in need of protection in Australia:

    ‘… because she did pass under the scrutiny of public security officials three times and was not impeded from leaving the country or from returning to the community at large.’  (Tribunal’s emphasis.)

13. Ultimately the Tribunal found that the applicant’s claims about facing persecution for reasons of her Falun Gong adherence or for any other Convention-related reason were unreliable.  It considered as an alternative that the applicant may have in fact adopted Falun Gong practices much later than she had claimed but rejected such a hypothesis on the basis of the unreliability of her evidence.  It also found that the applicant could not have imputed to herself a profile of being a Falun Gong adherent on the basis of any information that might be disseminated in China about her activities in Australia in relation to Falun Gong.

14. The Tribunal ultimately found that the applicant was an unreliable witness, and was not satisfied that she faced a real chance of Convention-related persecution were she to return to China or that her fear of such persecution was well founded.  In the section headed ‘Findings and Reasons’ the Tribunal does not deal separately with each of the three principal claims in the applicant’s claim for a protection visa.  But, it is clear enough from a reading of the Tribunal’s ‘Statement of Decision and Reasons’ as a whole that it had regard to each of the claims which it identified and considered and rejected them.  At the end of the day, the substance of the Tribunal’s finding that it was not satisfied that the applicant had a well-founded fear of persecution for reasons of her Falun Gong practice or that she had in fact the level of involvement in Falun Gong which she claimed, were determinative of the Tribunal’s ultimate findings that it could not rely on the applicant’s evidence and was not satisfied by it.

15. His Honour dealt with the three grounds for review that were substantially urged before the Federal Magistrates Court in the applicant’s amended application for review. First, she had claimed that the Tribunal had been biased against her because of its lack of satisfaction with her explanation as to why she went to and returned from South Korea. Secondly, she alleged the Tribunal was biased because it did not refer to any country information. Thirdly, she alleged the Tribunal failed to consider her claim according to s 91R of the Migration Act 1958 (Cth), a reference to the need for the Tribunal to be satisfied about the essential and significant reason concerning the applicant’s claim to a well-founded fear of persecution.

16. His Honour carefully reviewed the material before him and found there was no arguable substance for the allegations of bias. He held that the failure to refer to the independent country information did not give rise to a jurisdictional error and that the claim or the ground in relation to s 91R was not particularised and should not be treated as having any substance. I can see no error in that approach or in his Honour’s reasons.

17. In this Court, the applicant seeks to argue that the trial judge erred in failing to find a jurisdictional error and in finding that the Federal Magistrates Court had no jurisdiction to interfere in the applicant’s case.  Before me today the applicant argued that in substance the Tribunal had not dealt with her fairly because of the way it examined her on her knowledge of Falun Gong techniques and its conclusions in relation to her knowledge about Falun Gong.  She also claimed that China was very corrupt and for that reason she was able to obtain her release from her 2001 detention and also was able to obtain and travel on her passport in the way in which she did. 

18. I have considered the Tribunal’s ‘Statement of Decision and Reasons’ and his Honour’s judgment together with two pages which were missing from the court book forming the last two pages of the applicant’s application for review.  I am satisfied that the latter material was before the Tribunal and that it was accidentally omitted from the court book.  Although it was not before his Honour, his Honour identified all of the claims which had been articulated before the Tribunal with sufficient accuracy to provide me with a comfortable degree of assurance that there is no basis on which it could be said that his Honour failed appropriately to consider the material before him in exercising his discretion to dismiss the application as not raising an arguable case for the relief claimed.  I am not satisfied that any basis has been established that his Honour made an error in coming to that conclusion.

19. For these reasons I would extend the time for the applicant to file her application for leave to appeal but dismiss the latter application with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        22 August 2007

Applicant:	In person
Solicitor for the Respondent:	L Leerdam of DLA Phillips Fox
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007