SZKRL v Minister for Citizenship

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FEDERAL COURT OF AUSTRALIA

SZKRL v Minister for Citizenship [2008] FCA 226

Migration Act 1958 (Cth) s 91R(3)
Federal Court Rules 1979

Minister for Immigration  & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Jess v Scott (1986) 12 FCR 187 cited
Minister for Immigration & Multicultural Affairs v Roda Kabail [1998] FCA 1320 cited
NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 cited
Howard v Australian Electoral Commission [2000] FCA 1767 cited
W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 cited
WACF v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1385 cited

SZKRL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2343 OF 2007

EDMONDS J
5 MARCH 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2343 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKRL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

5 MARCH 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be refused.

2.The applicant pay the first respondent’s costs in the sum of $1,500.

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 2343 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKRL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EDMONDS J

DATE:

5 MARCH 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. By an application filed on 28 November 2007, the appellant seeks an extension of time to file and serve a notice of appeal from a judgment of the Federal Magistrates Court (Cameron FM) delivered on 26 October 2007.  His Honour subsequently published reasons for judgment: SZKRL v Minister for Immigration [2007] FMCA 1814 (‘SZKRL’).

    BACKGROUND

  2. The appellant, a citizen of the People’s Republic of China (‘the PRC’), arrived in Australia on 10 October 2006 and applied for a Protection (Class XA) visa on 23 November 2006.  On 7 February 2007, the appellant’s protection visa application was refused by a delegate of the first respondent (‘the Minister’) and the appellant sought review of the delegate’s decision by lodging an application with the second respondent (‘the Tribunal’): SZKRL at [1] – [3].

    APPLICANT’S CLAIMS AND TRIBUNAL PROCEEDINGS

  3. The appellant’s claims made to the Department in support of her protection visa application and at the hearing before the Tribunal were comprehensively and accurately summarised by his Honour below: SZKRL at [6].

  4. When making her application, the appellant claimed she became a Falun Gong practitioner in March 2006 (corrected by her at the Tribunal hearing to have been January 2006).  She was introduced to Falun Gong by her cousin’s husband and noted that her stomach problems improved after practising for one month.  The appellant travelled to the Philippines in March 2006 and then to Australia in October…

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Details
Case
[2008] FCA 226
Decision Date

CaseChat Overview and Summary

In the matter of SZKRL v Minister for Citizenship, the appellant, a citizen of the People’s Republic of China, applied for an extension of time to appeal a decision of the Federal Magistrates Court. The appellant had arrived in Australia in October 2006 and applied for a Protection (Class XA) visa, which was subsequently refused. The appellant sought review of the decision by the Tribunal, which upheld the decision of the delegate. The Tribunal found that the appellant was not committed to Falun Gong in China and did not have a significant interest in Falun Gong. The Tribunal also found that the appellant did not have a genuine fear of persecution at the time she left China before coming to Australia. The appellant applied for an extension of time to appeal the decision of the Federal Magistrates Court, which was refused.

The legal issues before the court were whether the appellant was entitled to an extension of time to appeal the decision of the Federal Magistrates Court and whether the appellant's claims of persecution were credible. The court had to consider the evidence presented by the appellant and the findings of the Tribunal. The court also had to consider whether the appellant's delay in lodging the application for an extension of time was unreasonable and whether there were any exceptional circumstances that warranted an extension of time.

The court found that the appellant's application for an extension of time was filed outside the relevant time period and that the appellant had not provided a satisfactory explanation for the delay. The court also found that the appellant's claims of persecution were not credible, as the Tribunal had found that the appellant was not a committed Falun Gong practitioner and did not have a genuine fear of persecution. The court held that the appellant's delay in lodging the application for an extension of time was unreasonable and that there were no exceptional circumstances that warranted an extension of time. The court refused the application for an extension of time and ordered the appellant to pay the costs of the first respondent.

In conclusion, the court refused the appellant's application for an extension of time to appeal the decision of the Federal Magistrates Court. The court found that the appellant's delay in lodging the application was unreasonable and that there were no exceptional circumstances that warranted an extension of time. The court also found that the appellant's claims of persecution were not credible and that the Tribunal's findings were well-founded. The court ordered the appellant to pay the costs of the first respondent.

Orders

Orders of the court

1. The application be refused.

2. The applicant pay the first respondent’s costs in the sum of $1,500.

Background

Background to the litigation

By an application filed on 28 November 2007, the appellant seeks an extension of time to file and serve a notice of appeal from a judgment of the Federal Magistrates Court (Cameron FM) delivered on 26 October 2007. His Honour subsequently published reasons for judgment: SZKRL v Minister for Immigration [2007] FMCA 1814 (‘SZKRL’).BACKGROUND The appellant, a citizen of the People’s Republic of China (‘the PRC’), arrived in Australia on 10 October 2006 and applied for a Protection (Class XA) visa on 23 November 2006. On 7 February 2007, the appellant’s protection visa application was refused by a delegate of the first respondent (‘the Minister’) and the appellant sought review of the delegate’s decision by lodging an application with the second respondent (‘the Tribunal’): SZKRL at [1] – [3].APPLICANT’S CLAIMS AND TRIBUNAL PROCEEDINGS The appellant’s claims made to the Department in support of her protection visa application and at the hearing before the Tribunal were comprehensively and accurately summarised by his Honour below: SZKRL at [6]. When making her application, the appellant claimed she became a Falun Gong practitioner in March 2006 (corrected by her at the Tribunal hearing to have been January 2006). She was introduced to Falun Gong by her cousin’s husband and noted that her stomach problems improved after practising for one month. The appellant travelled to the Philippines in March 2006 and then to Australia in October 2006. She practised Falun Gong at home when she was not busy and applied for a protection visa because she was a Falun Gong practitioner and would practise and spread the teaching. The appellant did not provide any further written material to the Tribunal, but attended a hearing before the Tribunal and gave oral evidence in support of her claims. She said she had worked in the wholesaling of motor parts and from 2003 had operated her own business. She closed the business in January 2006 because the authorities inspected the shop and confiscated products. In relation to the authorities’ actions in January 2006, the appellant said she did not know why they came into her shop. The Tribunal asked her if she had any reason to believe that the officials had confiscated her goods for any of the reasons set out in the Convention and she said that it seemed that they did not. The appellant said that since January 2006 she had nothing to do because she was still in trouble over this matter. She was worried and stressed and developed eating and stomach problems. She was advised by a relative to try to practise Falun Gong to improve her health. The appellant said that from January 2006 she did not have a certain time to practise, and practised whenever she had the time. The appellant confirmed with the Tribunal that she had never come to the attention of the authorities because of her practice of Falun Gong as she had practised secretly in China and only her husband and close family knew about it. She said that she was afraid because she had two children. The appellant said that she sought protection not only because of her adherence to Falun Gong but also because of her business. She said that without her business she had no income and could not live ‘there’.THE TRIBUNAL’S DECISION AND REASONS

Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDMONDS J
The appellant confirmed with the Tribunal that she had never come to the attention of the authorities because of her practice of Falun Gong as she had practised secretly in China and only her husband and close family knew about it. She said that she was afraid because she had two children. The appellant said that she sought protection not only because of her adherence to Falun Gong but also because of her business. She said that without her business she had no income and could not live ‘there’.THE TRIBUNAL’S DECISION AND REASONS His Honour also included in his reasons a summary of the Tribunal’s findings: SZKRL at [7]. His Honour noted that after considering the claims made by the appellant and the evidence before it, the Tribunal found that it was not satisfied that the appellant was a person to whom Australia owed protection obligations. His Honour set out the findings and reasons that formed the basis of the Tribunal’s decision as follows:(1)The Tribunal found that the appellant was not committed to Falun Gong in China and did not have a significant interest in Falun Gong.(2)It found that her involvement with Falun Gong in China was minimal and, at its highest, was limited to performing the exercises at home. It found that the appellant practised at home and had not engaged in any other Falun Gong activities in China because of her lack of interest in Falun Gong and not because she was fearful of the authorities.(3)The Tribunal further found, on the basis of the appellant’s oral evidence to it, that she did not have a genuine fear of persecution at the time she left China before coming to Australia.(4)In making these findings the Tribunal noted the following matters:(i)the appellant started practising Falun Gong because of her health problems and that she did not believe in it initially;(ii)the appellant started practising ‘as a trial’ and that her cousin’shusband told her to practise to see if her health improved first;(iii)her intention in travelling overseas was to relax and it was only after coming to Australia and becoming more familiar with Falun Gong that she became a committed practitioner;(iv)the appellant had no difficulties with the authorities in China;(v)when applying for the visa to Australia the appellant was not thinking about Falun Gong;(vi)when asked to give examples of how she applied the principles of Falun Gong in daily life, the appellant gave vague answers. She was unable to give specific examples.(5)As to the appellant’s involvement with Falun Gong in Australia, the Tribunal was not satisfied that:(i)the appellant’s actions demonstrated a commitment to Falun Gong;(ii)the appellant failed to engage in Falun Gong activities in Australia, other than performing the exercises, for several months because she did not know the practitioners or because she did not know about any such activities;(iii)the appellant was a committed Falun Gong practitioner or that she was involved in the practice of Falun Gong in Australia because of her commitment to Falun Gong;(iv)the appellant’s involvement in Falun Gong in Australia was conducted otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Convention; andaccordingly, the Tribunal disregarded the appellant’s conduct in Australia in accordance with s 91 R(3) of the Migration Act 1958 (Cth) (‘the Act’).(6)The Tribunal found that should the appellant return to China ‘now or in the reasonably foreseeable future’, the level of her engagement in Falun Gong would not change from her past engagement in Falun Gong in China because the Tribunal found that the appellant was not a committed Falun Gong practitioner.(7)As the Tribunal found that at most the appellant might perform the exercises in private only, it found that there was no real chance that the appellant would be detected by the Chinese authorities or face persecution due to her involvement with Falun Gong.(8)As to the problems the appellant had with her business in China, the Tribunal found that those claims did not give rise to a claim of persecution for a Convention reason, noting that the appellant had stated that this occurred due to a tax dispute and she further said in her oral evidence that she did not consider that there was any Convention related reason in the actions of the authorities.PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

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