SZKAY v Minister for Immigration and Citizenship
[2007] FCA 1307
•1 August 2007
FEDERAL COURT OF AUSTRALIA
SZKAY v Minister for Immigration and Citizenship
[2007] FCA 1307SZKAY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 728 OF 2007RARES J
1 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 728 OF 2007
BETWEEN:
SZKAY
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
1 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the sum of $3,000.
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 728 OF 2007
BETWEEN:
SZKAY
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
1 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to appeal from a decision of the Federal Magistrates Court refusing to grant constitutional writ relief to the applicant from a decision of the Refugee Review Tribunal: SZKAY v Minister for Immigration [2007] FMCA 630. The tribunal had affirmed the delegate of the Minister’s decision not to grant a protection visa to the applicant. The applicant is a citizen of the People’s Republic of China who arrived in Australia in May 2006. She applied for a protection visa later that month which the delegate refused to grant it in August 2006. The applicant applied to the tribunal for a review of that decision. She attended a hearing before the tribunal.
She claimed to have been a practitioner of Falun Gong from around 1997. After the Chinese government banned Falun Gong as an evil cult in July 1999, the applicant claimed to have been dismissed from the factory where she worked. She claimed that she continued practising Falun Gong privately and that in July 2000, she had taken part in an assembly in front of a local government office at which she was arrested and detained with others for 10 days and forced to pay a fine. She claimed that the Chinese government gradually intensified the persecution against Falun Gong practitioners and that, in those circumstances, she said she came to the view that she had to leave China in order to continue practising Falun Gong. She claimed to fear that if she were returned to China, she would be subjected to persecution as a Falun Gong practitioner.
The tribunal noted that the applicant had travelled to Japan and Singapore in 2005, and that she had claimed to have made those two visits as a tourist. The tribunal questioned the applicant about her activities involving, and her knowledge of, Falun Gong. It found that the central claim of the applicant was that she faced persecution because of her membership of Falun Gong. It identified that the claim was founded on a fear of persecution for reason of her religious beliefs, but concluded that her written and oral statements did not provide any credible basis to support her claim of a well-founded fear of persecution.
The tribunal said the threshold question to be settled was whether or not the applicant was a practitioner of the Falun Gong movement. It found that she had not provided any information in her written statement to support her claims that she was such a practitioner. The tribunal said that it set out to test her knowledge and familiarity with the most basic information concerning the Falun Gong movement at the hearing. It found that the applicant ‘... seemed to know very little about the Falun Gong’. Apart from knowing the name of the founder and a very basic statement of its philosophy, the tribunal found that she knew little else. She could not provide the tribunal with a proper answer about the significance of the ‘wheel’ in the Falun Gong movement. She could not name to the tribunal the five basic exercises routinely practised by members of the Falun Gong movement.
The tribunal found, after having given the applicant several opportunities to provide any information she knew about Falun Gong, that its effort had proved fruitless. The tribunal found that for a person who had claimed to have practised Falun Gong since 1997 and even used it to cure her headaches, and was then unwilling to return to her country because of her practice of Falun Gong, it was:
‘... astonishing that the applicant did not appear to know even the most basic information associated with the Falun Gong movement. The applicant left the Tribunal with the distinct impression that she knows very little about the Falun Gong. Given her level of knowledge about the Falun Gong, the Tribunal finds that the applicant was not a member of the Falun Gong in China.’
In making those findings, the tribunal found as not credible the applicant’s claims to have been detained, to have had to attend re-education classes and to have had to pay a security bond before she could travel outside China because of her membership of the Falun Gong. The tribunal rejected the applicant’s claims that she had been persecuted. It found that it was not satisfied that her claim of a well-founded fear of persecution on her return to China was genuine. In those circumstances, the tribunal found that the applicant had not satisfied the criterion set out in s 36(2) of the Migration Act 1958 (Cth) for a protection visa. Each of those findings was a finding of fact which it was open to the tribunal to make.
The applicant applied to the Federal Magistrates Court for constitutional writ relief in respect of the decision of the tribunal. In her amended application, she claimed three bases to set aside the tribunal’s decision, namely:
(1) the tribunal was biased;
(2) the tribunal failed to consider the applicant’s claims for a protection visa in accordance with section 91R of the Act; and
(3)the tribunal failed to consider her application in accordance with s 424A of the Act.
His Honour noted that the applicant had declined the opportunity to receive a referral for free legal advice. He dismissed her claim under r 44.12 of the Federal Magistrates Court Rules 2001 (Cth). His Honour held that there was no detail of any argument or other basis on which to assess a claim that the tribunal was biased or had failed properly to consider her claims in accordance with s 91R or to follow the procedures required by s 424A of the Act.
I agree. There is not a scintilla of evidence that the tribunal was biased. A reading of its Statement of Decision and Reasons indicates that the tribunal sought to give the applicant every opportunity to put forward her case and to provide whatever she may have been able to give it by way of evidence in support of her claims. There was no evidence to suggest, before his Honour or myself, that the tribunal’s recording of its questioning of the applicant, or of her responses, was inaccurate or otherwise presented a misleading picture. The tribunal’s Statement of Decision and Reasons reveals an entirely proper and appropriate process in which the tribunal was engaged to examine the factual basis of the applicant’s claims.
Secondly, the tribunal had no occasion to apply s 91R to the applicant’s application for review because she had not met the threshold of establishing, to the satisfaction of the tribunal, that she was, in fact, a practitioner of Falun Gong or that she had already suffered any persecution for reasons of her practise of Falun Gong. There was also no basis for the suggestion that the provisions of s 424A had been engaged so as to require the tribunal to give the applicant any written notice of information which might be a reason, or part of the reason, for refusing her application. While the Tribunal referred in its findings and reasons to the applicant’s written statements, it did so in the context of recording that they did not provide a credible basis to support her claim, rather than using them positively to say it would not accept her claim.
The applicant has provided a draft notice of appeal which adds two further allegations or grounds on which she would seek, were I to grant her leave to appeal, to challenge the tribunal’s decision. They are that, first, the tribunal made its decision based on assumptions, rather than on facts and, secondly, that it did not refer to sufficient independent information in arriving at the decision. Neither of these grounds has any substance. Neither has been particularised or otherwise elaborated by the applicant. Before me today, the applicant said that the decision of the tribunal was not reasonable, and that she had a genuine case which was not properly considered. Those assertions were not backed up by any analysis or facts which the applicant sought to refer to me in support of her application.
Before an application for leave to appeal can be granted, it is necessary that the applicant establish that the decision of the Federal Magistrates Court was attended with sufficient doubt to warrant the grant of leave and, in addition, that substantial injustice would result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29]. I am of opinion that there is no sufficient doubt as to the correctness of his Honour’s decision to warrant the grant of leave, and that no injustice will result from the refusal of leave to appeal. For these reasons, I would dismiss the application for leave to appeal with costs.
I certify that the preceding twelve (12) 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 Counsel for the Respondent: MA Izzo Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 1 August 2007 Date of Judgment: 1 August 2007
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