SZKAX v Minister for Immigration and Citizenship

[2008] FCA 260

FEDERAL COURT OF AUSTRALIA

SZKAX v Minister for Immigration & Citizenship [2008] FCA 260

Migration Act 1958 (Cth)

Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Attorney-General (NSW) v Quin (1990) 170 CLR 1
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

SZKAX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2205 OF 2007

EDMONDS J
6 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2205 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	6 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 2205 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	6 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court (SZKAX v Minister for Immigration [2007] FMCA 1727 (Lloyd-Jones FM)) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China who arrived in Australia on a temporary visitor’s visa on 20 May 2006.  The appellant applied for a protection visa on 29 May 2006.

3. The appellant claimed to hold fears for reason of his practice of Falun Gong.  He claimed that:

   (1)He commenced practising Falun Gong in 1997.

   (2)He practised in secret and introduced his work colleagues to Falun Gong.

   (3)Members of the group of Falun Gong practitioners were often arrested by police and they were not able to ‘live at peace’.

   (4)After 1999 the appellant was required to speak with people from the ‘610 office’ many times.  They suspected his involvement with Falun Gong.

   (5)Consequently, he was not able to enjoy a normal life and basic human rights.

4. On 31 July 2006 a delegate of the Minister refused to grant the appellant a protection visa.  The delegate had serious doubts about the veracity of the appellant’s claims because those claims were uncorroborated, inconsistent and implausible.

   APPLICATION FOR REVIEW

5. On 30 August 2006 the appellant applied for review of that decision and on 6 November 2006 the appellant gave evidence to the Tribunal.

6. The appellant claimed that:

   (1)In 2002 he was involved in a dispute over the resumption of land that the appellant used for the purpose of building a road.  He was detained for two weeks and his passport was confiscated.

   (2)He drove Falun Gong practitioners to the site where they practised but he did not practise much himself.

   (3)He did not do the Falun Gong exercises, did not learn about the philosophies behind Falun Gong or the meaning of the exercises.

   (4)He had been told to claim refugee status on the basis that he was a Falun Gong practitioner.

   (5)He had met a Falun Gong practitioner in Australia twice and that he feared that there could be a problem if he returned to China.

   (6)He had signed a statement in China to the effect that he was not a Falun Gong practitioner.

7. On 19 December 2006 the Tribunal handed down its decision affirming the decision under review.  It found that the appellant’s claims lacked credibility because at the Tribunal hearing the appellant resiled from his earlier claims to have been a Falun Gong practitioner and had fabricated his evidence about his interest in, and practice of, Falun Gong to give himself the profile of a refugee.  Consequently, it did not accept the appellant’s claims that were based on his claim to being a Falun Gong practitioner.  It further found that, in respect of the land dispute in 2002, the appellant did not hold subjective fears or well founded fears based on those events.  It concluded that the appellant’s assertion that he would experience problems in China was mere speculation.

8. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

   APPLICATION FOR JUDICIAL REVIEW

9. The appellant relied upon an amended application filed on 28 May 2007. The appellant alleged that the Tribunal was biased and that the Tribunal had breached s 424A(1) of the Migration Act 1958 (Cth).

10. The court below found that neither of these grounds was made out (at [16], [17] and [18]).

    APPEAL TO THIS COURT

11. The appellant relied on a notice of appeal filed on 8 November 2007.  Two grounds were raised:

    (1)The Tribunal did not believe the claims of his application based on the officer’s assumption. The Tribunal did not make a decision on his application based on evidence and materials. The Tribunal failed to consider his application in accordance with s 91R of the Migration Act.

    (2)The Tribunal failed to consider his application in accordance with s 424A of the Migration Act.  The Tribunal had not notified him in writing of the reason or part of the reasons for affirming the decision.

    THE MINISTER’S SUBMISSIONS

12. In respect of the first ground, the Minister submitted that the Tribunal’s decision was based on a rational assessment of the genuineness of the appellant’s claim to be a Falun Gong practitioner as claimed: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 558 – 559. The Tribunal found that the appellant’s claims lacked credibility because the appellant claimed that he had practised Falun Gong since 1997, yet in his oral testimony stated that he did not do the Falun Gong exercises, did not know the meaning of the exercises and did not know the philosophy behind Falun Gong. That testimony formed a sound evidentiary basis for the conclusion that the appellant’s claims to have been a Falun Gong practitioner were a fabrication and that finding subsumed the entirety of his claims to have suffered at the hands of the authorities for reason of his Falun Gong beliefs. The Minister submitted that the Court should not review the fairness or correctness of those findings: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [65] – [67]; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 – 36.

13. Further, the Minister submitted that it was open for the Tribunal to find that the appellant’s claims were not well founded because they were not credible.

14. In _.respect of the second ground, the Minister submitted that the reason for the Tribunal’s decision was its appraisal of the appellant’s credibility based on his testimony before the Tribunal. The appellant’s testimony at the hearing was given by the appellant for the purpose of his application for review and was therefore excepted from obligations under s 424A(1) by reason of subs 424A(3)(b): NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [41] – [64]. The Tribunal’s appraisal of that testimony was not information for the purpose of s 424A(1): SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]. Accordingly, the Minister submitted that there was no breach of s 424A(1).

    CONCLUSION

15. I agree with these submissions.

16. I also agree with his Honour below (at [23]) that it is not apparent that any other grounds of review exist to suggest that the Tribunal made a jurisdictional error in its decision-making process.

17. The appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        6 March 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Mr J Mitchell
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	4 March 2008
Date of Judgment:	6 March 2008