SZKGZ v Minister for Immigration and Citizenship

[2008] FCA 295

FEDERAL COURT OF AUSTRALIA

SZKGZ v Minister for Immigration and Citizenship [2008] FCA 295

SZKGZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
WAD 207 OF 2007

SIOPIS J
10 MARCH 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 207 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	10 MARCH 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1The appeal is dismissed.

2The 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
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 207 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	10 MARCH 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on 24 August 2006 on a visitor’s visa.  Prior to arriving in Australia the appellant was a resident of Hong Kong and on 3 April 2006, she was issued with a passport by the Hong Kong Special Administrative Region.

2. In September 2006, the appellant applied for a protection visa.  In the statement attached to her protection visa application the appellant said that she feared that she would suffer harm if she was to return to China because she was a Falun Gong practitioner.  The appellant said that she started to practise Falun Gong in October 1997.  She said that in 1999 she was dismissed by her “boss” at the Hu Bei Bing Xiang factory because she was a practitioner of Falun Gong.  She said that she then moved to Hong Kong.  She said that after a period of time living in Hong Kong she thought that the “government ha[d] cancelled [her] record in their computer system”.  However, said the appellant, when she went back to Shen Zhen City in mainland China in 2006, she was arrested, taken to the police station and warned not to practise Falun Gong again.  She was then released.  She said that she feared that if she went back to China she would be arrested and sent to gaol.

3. On 25 October 2006, a delegate of the first respondent (the Minister) refused the appellant’s visa application.

4. On 22 November 2006, the appellant made an application to the second respondent (the Tribunal) for review of the delegate’s decision.

5. At the Tribunal hearing the appellant gave evidence and was questioned about her statement attached to her visa application.  The appellant said that in 1999 the Public Security Bureau (PSB) had “troubled” her employer because of her links to Falun Gong and that was why she was fired.  She said that at that time the PSB had “whipped her” and hurt her finger.  The appellant said that she had thereafter moved to Hong Kong to be with her husband.  She said that during the time that she was in Hong Kong she had from time to time travelled to mainland China and had visited a cousin of her brother‑in‑law who was in gaol because of being a Falun Gong practitioner.  As to her arrest in 2006, she said that she went to Shen Zen City to meet her friends who were Falun Gong practitioners.  She said one of her friends was a “wanted practitioner”.  She said that the PSB noticed that she was with her friends who were Falun Gong practitioners and that the PSB called her in to ask her if she was a Falun Gong practitioner.  She said that the PSB “seriously warned her” if “she was still with these friends” they would arrest her.

6. The Tribunal recognised that the appellant’s claim for a protection visa was based on a claim that she feared persecution in China because of her involvement in the practice of Falun Gong and because of her association with Falun Gong practitioners.

7. The Tribunal found that the appellant was not a Falun Gong practitioner because of the “minimal” knowledge of Falun Gong demonstrated by the appellant during questioning by the Tribunal.  Accordingly, the Tribunal found that the appellant did not lose her job, nor was she physically maltreated in 1999 because of her involvement in the practice of Falun Gong.  The Tribunal also rejected the appellant’s claim that she was arrested in mainland China in May 2006 because she was seen in the company of a known Falun Gong practitioner and released with a warning.  The Tribunal found that this account of lenient treatment by the PSB was inconsistent with country information which disclosed that the authorities in mainland China take serious action against Falun Gong practitioners.

8. The Tribunal also rejected her claim that she had come to the attention of the Chinese authorities in 2006 as a Falun Gong practitioner or someone who associated with Falun Gong practitioners.  The Tribunal noted that the appellant had not claimed that she was persecuted in Hong Kong by reason of her association with Falun Gong.  The Tribunal also noted that the country information showed that residents of Hong Kong enjoy freedom of religion and that Falun Gong practitioners are free to practise and engage in public demonstrations and activities.

9. Accordingly, the Tribunal found that if the appellant were returned to mainland China or Hong Kong now, or in the reasonably foreseeable future, there was no real chance that she would face any harm because of her alleged involvement with Falun Gong or her alleged association with Falun Gong practitioners.  The Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations.

10. Accordingly, the Tribunal upheld the decision of the delegate to refuse the appellant’s claim for a protection visa.

    The Federal Magistrate

11. On 2 March 2007, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  In an amended application filed on 15 June 2007, the appellant set out the ground of review relied upon as follows:

    The Refugee Review Tribunal failed to consider the whole of my application.

12. On 12 October 2007, the Federal Magistrate dismissed the appellant’s application for judicial review.

13. The Federal Magistrate set out at some length the findings of the Tribunal and concluded that the Tribunal had considered all of the claims made by the appellant before the Tribunal.  The Federal Magistrate found that the Tribunal was entitled to come to the views that it did and that there was no jurisdictional error.

    The appeal

14. The appellant filed a notice of appeal on 25 October 2007 appealing against the whole of the judgment of the Federal Magistrate.  The grounds of appeal were stated to be:

    1The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.

    2The Refugee Review Tribunal failed to consider the whole of my application for a protection visa.

    3I face a risk of being arrested if I go back to CHINA.

15. The appellant appeared in person.  The appellant did not advance any oral arguments which could be characterised as being made in support of any of the written grounds of appeal.

16. In my view, the appeal should be dismissed.  The Federal Magistrate did not err in concluding that the Tribunal had considered the whole of the appellant’s application.

17. First, there was no error by the Tribunal in applying the law to the facts found. The Tribunal found that the authorities in mainland China and Hong Kong had no ongoing interest in the appellant by reason of her being a Falun Gong practitioner or being associated with Falun Gong, and that there was no real chance that the appellant would face harm on this basis if she was returned to China. The Tribunal did not err in concluding that, accordingly, the appellant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, and that the appellant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) for a protection visa.

18. Secondly, the Tribunal considered in detail each of the claims made by the appellant in her statement and during the evidence which she gave before the Tribunal.  The Tribunal dismissed the appellant’s application on the basis that it was not satisfied that the appellant had been dismissed from her employment and mistreated in 1999 by reason of being a Falun Gong practitioner.  Nor was it satisfied that the appellant had come to the attention of the authorities in mainland China as she alleged in 2006 because she was, or was seen to be associating with Falun Gong practitioners.  The Tribunal rejected the claims on credibility grounds.  First, the Tribunal found that the appellant was not a Falun Gong practitioner because during questioning the appellant demonstrated minimal knowledge of Falun Gong.  Secondly, the Tribunal found that the leniency shown to the appellant by the PSB when she was found to be in the company of Falun Gong practitioners in Shen Zhen City, was inconsistent with the treatment of Falun Gong practitioners by Chinese authorities as disclosed in the country information.

19. These were views to which the Tribunal was entitled to come.  The Federal Magistrate did not, therefore, err in concluding that the Tribunal had considered the whole of the application.

20. The third ground referred to in the notice of appeal is a merits ground and, therefore, incompetent as a ground of appeal.

21. Accordingly, I dismiss the appeal.

I certify that the preceding twenty‑one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        10 March 2008

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Mr P Macliver
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	11 February 2008
Date of Judgment:	10 March 2008