SZKGE v Minister for Immigration and Citizenship

[2007] FCA 1788

FEDERAL COURT OF AUSTRALIA

SZKGE v Minister for Immigration and Citizenship [2007] FCA 1788

SZKGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1201 OF 2007

EMMETT J
6 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1201 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	6 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the sum of $1,250.

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	NSD1201 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	6 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China.  She arrived in Australia on 4 June 2006 and applied for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (the Act) on 12 July 2006. A delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a visa on 30 August 2006. The appellant then applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 5 January 2007 the Tribunal affirmed the decision not to grant a protection visa.

2. On 22 February 2007, the appellant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  An amended application was filed on 3 May 2007.  On 7 June 2007, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in sum of $4,700. 

3. By notice of appeal filed on 27 June 2007, the appellant appeals to the Federal Court from the orders of the Federal Magistrates Court.  The grounds of appeal to this Court do not identify any error on the part of the Federal Magistrates Court.  Rather, they repeat the grounds upon which the appellant relied in her amended application to the Federal Magistrates Court for asserting that there was jurisdictional error on the part of the Tribunal.  I would be prepared to treat the notice of appeal as asserting that the Federal Magistrates Court erred in not finding in her favour, on the grounds that are specified in the notice of appeal.

4. The grounds specified in the amended application are as follows:

   “(1)The Tribunal did not believe my claims because of the bias against me.  The Tribunal’s decision was made based on evidence and materials.  The Tribunal just did not believe my claims, did not believe the evidence that I provided and refused my application based on the officer’s assumption.

   (2)The Tribunal failed to carry out its statutory duty. The Tribunal did not notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application according to section 424A of the Migration Act 1958.”

   In the particulars of the second ground, an assertion was made that the Tribunal based its findings on information, or lack of information, contained in the appellant’s application for a visa.  No particulars, however, of the relevant information were contained in the amended application. 

5. The grounds of appeal to the Federal Court are as follows:

   “(1)The Tribunal had bias against me and failed to consider the claim for my application for a protection visa in accordance with section 91R of the Migration Act 1958.

   (2)The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application for a protection visa in accordance with section 424A of the Migration Act 1958.”

6. The appellant’s claims before the Tribunal were that she had a fear of persecution because she claimed to be a very active member of Falun Gong.  She claimed that she often had all sorts of Falun Gong activities with other practitioners in China and that they got together to condemn the Chinese government for their persecution of members of Falun Gong, and to protest against the government’s attitude to Falun Gong.  However, the Tribunal was not satisfied that the appellant was a Falun Gong practitioner in China.  The Tribunal outlined four reasons for that conclusion.

7. First, the Tribunal referred to a letter from the appellant’s husband dated 27 June 2006 that she produced to the Tribunal.  In the letter, the appellant’s husband claimed that the police had visited her family home and taken away photographs that she had taken during the 4 June Tianamen Square event.  The Tribunal found the appellant’s evidence in relation to those matters inconsistent.  The Tribunal found that the appellant’s description of the event of 4 June did not accord with historical records.  The inconsistent evidence of the appellant and her inaccurate account of what occurred led the Tribunal to conclude that her account was not entirely truthful.

8. Secondly, the Tribunal had regard to the inaccuracy of the appellant’s recall of events that took place during 1988 and 1999.  In that context, the Tribunal referred to the appellant’s claim that she took a petition to Beijing. 

9. Third, the Tribunal referred to the appellant’s claim that she continued to practice Falun Gong in parks at night from 1999 until 2006, when she came to Australia.  The Tribunal found the appellant’s claims of practising Falun Gong at midnight implausible. 

10. Finally, the Tribunal said that, if the appellant had been practising Falun Gong since 1997, as she claimed, the Tribunal would have expected her to have a reasonably sound understanding of Falun Gong principles.  However, the Tribunal found that the appellant’s general knowledge about Falun Gong was scant and that she was unable to perform certain of the exercises correctly.

11. The Tribunal then referred to s 91R(3) of the Act concerning the appellant’s claim to have practised Falun Gong in Australia since her arrival.  On the basis of the inconsistent evidence provided to the Tribunal and the evidence before it, the Tribunal was satisfied that the appellant’s conduct of Falun Gong in Australia was engaged in solely for the purpose of strengthening her refugee claim.  The Tribunal, therefore, disregarded her conduct in Australia and did not accept her claim that she would practice Falun Gong at home secretly if she returned to China or that her husband was told she would be arrested if she returns.  There does not appear to be me to be any error in the Tribunal’s approach to s 91R of the Act.

12. The Federal Magistrates Court dealt with the grounds set out in the amended application.  The Federal Magistrates Court characterised the appellant’s complaint as simply disagreeing with the Tribunal’s decision.  The Federal Magistrates Court adopted the Minister’s written submissions for rejecting the two grounds in the amended application.  The Federal Magistrates Court also went on to express some reservation about the Tribunal’s approach to its reliance upon so-called expert evidence.  However, the primary judge was of the view that, in the absence of a transcript of the proceeding before the Tribunal, even if there were a failure to disclose the expert opinion, s 422B of the Act excluded the fair hearing rule.

13. The appellant appeared today in person, without any legal representation.  She was assisted by an interpreter in Cantonese.  Although directed to do so, the appellant did not file any written submissions in support of her appeal.  However, in the course of her hearing she enumerated a number of grounds.  First, she said that the tribunal had not heard her case in accordance with the regulations and referred specifically to “Regulation 1958”.  However, the appellant was unable to identify what significance or relevance Regulation 1958 has.  I am not aware of any Regulation 1958. 

14. Secondly, the appellant said that the Tribunal had a prejudice against her.  That appears to be taking up the allegation of bias both in the amended application to the Federal Magistrates Court and in Ground 1 of the notice of appeal to this Court.  There is no evidence of any bias or prejudice on the part of the Tribunal and no particulars were furnished either to the Federal Magistrates Court or to this Court. 

15. Third, the appellant asserted that the Tribunal did not understand her case.  That appears to be a complaint that the Tribunal did not believe the applicant.  The appellant went on to say that the Tribunal made a decision that was not based on the evidence that she produced at the hearing.  That is the complaint made in the first ground in the application to the Federal Magistrates Court, that the Tribunal did not believe the appellant.  That is not a ground on which the Federal Magistrates Court could have interfered with the decision of the Tribunal. 

16. Next, the appellant claimed that the Tribunal made its decision on no evidence.  However, the Tribunal had the evidence of the appellant, but disbelieved her.  The appellant then asserted that the Tribunal relied on irrelevant information, but was unable to identify any irrelevant information on which the Tribunal was said to rely.  Rather, she simply asserted that she was disbelieved by the Tribunal. 

17. Finally, in her oral address, the appellant referred to s 424A of the Act and said that it had not been complied with.  She said hat she was not notified of the Tribunal’s reasons for rejecting her claim and, therefore, had no opportunity to respond to its reasons.  When invited to expand on her complaint of non-compliance with s 424A, the appellant referred to comments made by the Tribunal which she said were misleading.  She referred to having taken documents to an administrative area in Beijing.  That appears to be a reference to a finding made by the Tribunal concerning an allegation by the appellant that she took a petition to Beijing and was transferred to a sports stadium and then transported back home by the public security officials.  The Tribunal was not satisfied that the appellant went to Beijing in 1995 to present a petition letter as she claimed, and was not satisfied that she was detained as she claimed.  That was a finding of fact.

18. There does not appear to me to be any error on the part of the Federal Magistrates Court in dismissing the appellant’s application to that Court.  There does not appear to me to have been any other jurisdictional error on the part of the Tribunal.  It follows that the appeal must be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        19 November 2007

The Appellant appeared in person.
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	6 November 2007
Date of Judgment:	6 November 2007