SZKTB v Minister for Immigration and Citizenship

[2008] FCA 918

FEDERAL COURT OF AUSTRALIA

SZKTB v Minister for Immigration and Citizenship [2008] FCA 918

Migration Act 1958 (Cth)

SZKTB v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2456 OF 2007

REEVES J

13 JUNE 2008

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2456 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTB
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	13 JUNE 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $3,500.00.

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 2456 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTB
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	13 JUNE 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT – Revised from transcript

INTRODUCTION

1. The appellant is a citizen of the People's Republic of China (‘China’).  She came to Australia on Chinese passport on 15 December 2006.  On 29 December 2006, she lodged an application for a protection visa (class XA).  In the statutory declaration attached to her application she stated that she and her family were Falun Gong practitioners and that was the cause of her persecution in China.

   BACKGROUND – SUMMARY OF FACTS

2. The Minister’s delegate refused the appellant’s application in a decision dated 3 February 2007.  The appellant then sought to review that decision before the Refugee Review Tribunal (‘the Tribunal’). 

3. In her evidence before the Tribunal the appellant resiled from her claim that she was a Falun Gong practitioner and that her family was persecuted for that reason.  Instead, she claimed that her family had been persecuted by the local village committee because they had opposed the demolition of the family home by the local village committee.

4. The Tribunal confirmed the delegate’s decision in its decision handed down on 8 May 2007. 

5. The appellant then made an application to the Federal Magistrates Court for constitutional writ relief, seeking judicial review of the Tribunal’s decision.  Federal Magistrate Cameron dismissed that application in a decision delivered on 29 November 2007.  This appeal follows from that decision.  For the reasons set out below, I do not consider that Federal Magistrate Cameron committed any reviewable error and I therefore order that this appeal be dismissed.

   GROUNDS OF THE PRESENT APPEAL

6. The appellant relies on two grounds of appeal, as follows :

   ‘1.The Refugee Review Tribunal failed to provide me with an opportunity to comment upon the information contained in my application for a protection visa.

   2.The Refugee Review Tribunal failed to consider that I was and am a Falun Gong practitioner.’

7. Two things will be immediately apparent.  First, neither of these grounds of appeal identifies any error in the decision of the Federal Magistrate.  Secondly, the second ground of appeal appears to contradict the appellant’s evidence before the Tribunal to the effect that she was not a Falun Gong practitioner and rather appears to return to the position in her statutory declaration lodged in support of her original application (that she was and still is a Falun Gong practitioner).

8. As appears below, the appellant has reversed her position again in her submissions before me.  At the hearing of this appeal, the appellant appeared in person without any legal assistance but assisted by an interpreter.  Ms Sirtes appeared for the first respondent.  The appellant submitted that the organisation that persecuted her family was the local village committee not the Chinese Government.  She said her family suffered significantly as a result of this persecution, that her brother lost his life, her father was beaten and lost his job and that she was unable to complete her studies and graduate.

9. The appellant said that she realised it was wrong to claim in her original application that she was a Falun Gong practitioner when she was not a Falun Gong practitioner.  She said she did this because the migration agent she consulted when she first came to Australia told her that she should do so.  She said that she had been open and frank with the Tribunal about this matter and she explained how her family had been persecuted in China by the local village committee.  She claimed that the Tribunal had only asked her questions about her Falun Gong claim and did not listen to what she had to say about persecution of both her and her family by the local village committee.  She said the Tribunal did not allow her sufficient time to explain and did not express any doubts to her about her claims nor allow her to give any explanation about those doubts.

10. Ms Sirtes on behalf of the Minister submitted that the Tribunal did not say that persecution by the local village committee would not suffice.  To the contrary, she submitted that in its reasons the Tribunal identifies the local government authority as the source of persecution and describes its conduct in some detail.  In its ‘Findings and Reasons’ the Tribunal accepts that the local village committee or local government authority had engaged in the conduct described.  Ms Sirtes submitted the Tribunal did not however accept, as a matter of fact, the appellant’s allegations of continuing harm by way of threats, assaults, the destruction of the family’s furniture and similar allegations.

11. Counsel also submitted that the Tribunal did not accept that a family could be defined as a particular social group for Convention purposes. When I queried this conclusion, Ms Sirtes submitted that s 91S of the Migration Act 1958 (Cth) required any persecution of other members of an applicant’s family be disregarded, and that even if this amounted to an error on the part of the Tribunal it was not a jurisdictional error. I consider Ms Sirtes to be correct in that submission, but this particular matter is of little moment in determining this appeal.

12. In relation to the appellant’s explanation as how she came to falsely claim she was a Falun Gong practitioner, Ms Sirtes pointed out that this explanation (that she had been told to make that claim by a migration agent when she first arrived in Australia) had been raised for the first time before this Court.  Ms Sirtes submitted that while the Tribunal was entitled to question the appellant about resiling from her claims in relation to being a Falun Gong practitioner, in fact the Tribunal had gone on to consider the appellant’s other claims as its reasons demonstrate.  On the former aspect ie her claims about being a Falun Gong practitioner, Ms Sirtes pointed out the obvious inconsistency contained in the second ground of the appellant’s Notice of Appeal, to which I have already referred.

13. Finally, Ms Sirtes submitted that it was clear on High Court authority that the Tribunal was not required to put its subjective doubts about the appellant’s claims in a ‘section 424A letter’ and the Tribunal was not required to give a running commentary on its thought processes in relation to the appellant’s claims.

14. The first ground of appeal alleges that the Tribunal failed to provide the appellant with an opportunity to comment upon the information contained in her application for a protection visa.  I will assume that this ground intends to raise the failure of the Federal Magistrate to detect this alleged error on the part of the Tribunal, as this appeal is directed to appellable error on the part of the Federal Magistrate, but even on that assumption this ground must fail.  This is so because, as Ms Sirtes points out, it is clear from the Tribunal’s reasons that it carefully considered the appellant’s amended claims of persecution - notwithstanding the obvious problems for her credibility posed by her acknowledging her claims about being a Falun Gong practitioner to be false.

15. Ultimately, the Tribunal did not accept the amended claims made by the appellant.  The Tribunal said the following in the ‘Findings and Reasons’ section of its decision:

    ‘The applicant’s admission that she provided information in the Statutory Declaration that is not entirely accurate leads the Tribunal to have serious doubts about other claims made by the applicant.  However, given the documents in support and in consideration of the evidence as a whole the Tribunal has decided to give the applicant the benefit of the doubt; the Tribunal accepts as being [sic] that the authorities demolished the family’s home to enable road construction; that the family was paid an unreasonable amount; that her brother had a bad temper and that during an altercation with the authorities in March 2005, her brother was hit on the head and he died on [sic] night later, that his death caused great grief to the family, that she could not continue with her studies as a result of the death. 

    In consideration of the evidence as a whole and given the credibility concerns, the Tribunal rejects that they were threatened or had any difficulties when they wanted to take legal action, or that when they tried to appeal, the authorities sent the police around to convince them not to appeal, or that any member of the family was forced to write a promise letter about relocation or not asking officers to take responsibility, or that officers continued to interrupt the family, or that her father was arrested, or that in November 2006 they were found when they moved, or that the officers destroyed their furniture, or that the officers assaulted them, or that they could not live a normal life, or that when she went to the police station to report her brother’s death, she was told that because her brother practised Falun Gong, his death would not ‘expiate all his crimes’, or that as they could not get a death certificate, they could not appeal to the court.’

16. Essentially, the Tribunal did not accept the appellant’s claims that all these consequences had resulted from the family’s decision to oppose the demolition of the family home.  Without these consequences being accepted by the Tribunal, the appellant could not demonstrate that either she or her family had been persecuted by the local village committee as a result of their decision to oppose the demolition of the family home.  These are all findings of fact within the exclusive jurisdiction of the Tribunal; none of them could amount to jurisdictional error on the part of the Tribunal. 

17. Furthermore, insofar as this ground raises the criticism the appellant put before me in submissions today (that the Tribunal had failed to express any doubts to her about her claims and failed to allow her to give an explanation about those doubts), I agree with Ms Sirtes’ submissions that there is clear authority that the Tribunal is not required to disclose its thought processes nor to give a running commentary on them to the appellant.  What the Tribunal is required to do is to give the appellant written notice of any information it considers would be a reason for affirming the delegate’s decision.  No such requirement arose in the circumstances of this matter. 

18. The second ground of appeal is that the Tribunal failed to consider that the appellant was and still is a Falun Gong practitioner.  Not much needs to be said about this ground.  It contradicts the evidence the appellant gave to the Tribunal which in turn described this claim as false.  It also contradicts the submissions the appellant made before me.  Whatever the true position is, it is clear that the Tribunal made no error, let alone jurisdictional error, in its consideration of this matter.

    CONSIDERATION

19. Finally, given the Tribunal committed no jurisdictional error in any of the respects raised by the appellant in her grounds of appeal, or in her submissions before me, it must follow that the Federal Magistrate made no error either, in not detecting a non‑existent error on the part of the Tribunal.

20. To the contrary, from my reading of the Federal Magistrate’s decision, so far as the issues are common to this appeal (noting there were some additional matters that the appellant raised before the Federal Magistrate), the Federal Magistrate carefully considered those issues and properly rejected them.

    ORDERS

21. I therefore order that the appeal be dismissed and that the appellant pay the first respondent’s costs fixed in the sum of $3500. 

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

Associate:

Dated:        30 June 2008

Counsel for the Appellant:	In person
Counsel for the First Respondent:	Ms S A Sirtes
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	24 April 2008
Date of Judgment:	13 June 2008