SZLBH v Minister for Immigration and Citizenship

[2008] FCA 777

FEDERAL COURT OF AUSTRALIA

SZLBH v Minister for Immigration and Citizenship [2008] FCA 777

SZLBH and SZLBI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 417 OF 2008

COWDROY J
27 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 417 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBH
First Appellant

SZLBI
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	27 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellants pay the costs of the First Respondent in the amount of $2,470 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.

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 417 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBH
First Appellant

SZLBI
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	27 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from the decision of Federal Magistrate Barnes delivered on 4 March 2008 which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 26 June 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the appellants Protection (Class XA) visas.

   BACKGROUND

2. The appellants are citizens of the People’s Republic of China (‘the PRC’) who arrived in Australia on 31 December 2006. The appellants are husband and wife. They applied individually to the Department of Immigration and Citizenship for Protection (Class XA) visas, and made separate claims as to the basis upon which they sought protection (although both claims related to the practice of Falun Gong). A delegate of the Minister refused such applications in February 2007. The appellants applied individually to the Tribunal on 5 March 2007 for a review of the decisions of the delegate.

3. The appellant husband claimed that his wife had convinced him to take up the practice of Falun Gong because of his poor health and that he began practising Falun Gong in the PRC in October 2005. Although the appellant husband claimed that he practised Falun Gong in private, the Public Security Bureau (‘the PSB’) discovered his participation in Falun Gong. As a result he moved from Tianjin to Hebei on 4 February 2006. The appellant husband claimed that he approached the Falun Gong movement in Australia approximately eight to ten days after he arrived in Australia on 31 December 2007.

4. The appellant wife claimed that she began practising Falun Gong in 2003 because of her ‘poor health’. She claimed that on 2 February 2006 the PSB came to her home and arrested her. The appellant wife claimed that she was detained for 42 days, during which time she was ‘frequently beaten up’ and deprived of food. She further claimed that during her detention she was subject to ‘brain washing’ and was ‘continuously tortured’. She claimed that she was forced to sign a confession and pay a bribe to facilitate her release. The appellant wife claimed that since her arrival in Australia she has been practising Falun Gong with her husband.

5. On 1 May 2007 the Tribunal sent separate letters to the Appellants pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’). The appellants provided a joint response to such letters on 21 May 2007. For reasons of clarity and economy, the Tribunal handed down one decision which dealt with each application of the appellants.

   THE TRIBUNAL DECISION

6. The Tribunal found that the appellants lacked credibility about when, where and why they each began to practise Falun Gong. The Tribunal also noted that the appellants gave varying accounts as to when, to what degree, and with what formality they were being pursued by the PSB in 2006. The Tribunal found that the appellants’ claims that they had been of interest to the PSB were unconvincing and confused.

7. It was the view of the Tribunal that the appellants had familiarised themselves with Falun Gong for the purposes of obtaining protection visas, and therefore disregarded their practice of Falun Gong in Australia in accordance with s 91R(3) of the Act.

8. The Tribunal was not satisfied that the appellants had well-founded fear of persecution for any Convention Relating to the Status of Refugees 1951 (‘Convention’) reason. The Tribunal affirmed the delegate’s decisions to refuse to grant protection visas to the appellants.

   APPLICATION IN THE FEDERAL MAGISTRATES COURT

9. By application filed in the Federal Magistrates Court of Australia on 13 July 2007 the appellants sought judicial review of the Tribunal decision. The appellants raised a number of grounds of review, claiming inter alia that the Tribunal did not ‘carefully consider’ the information in favour of the appellants; there was no evidence to justify the Tribunal’s decision; the Tribunal failed to understand the appellants’ claims and failed to consider relevant matters; and the Tribunal failed to comply with s 424A of the Act.

10. In considering the appellants’ general claim that the Tribunal decision involved an error of law, Federal Magistrate Barnes found that such claim was not established on the material before the Court. The appellants’ claim that there was no evidence to justify the Tribunal’s decision was also not established on the material before the Court.

11. Barnes FM considered the appellants’ claim that the Tribunal had not carefully considered the information in favour of the appellants. Her Honour concluded that such ground established no jurisdictional error as it was apparent from the Tribunal’s reasons for its decision that it had considered all of the material before it, including information that might be said to be in favour of the appellants.

12. With regard to the appellants’ claim that the Tribunal had failed to consider relevant matters and had failed to understand the appellants’ claims, Barnes FM found that the Tribunal had considered the appellants’ claims and that no error had been established in the Tribunal decision. Her Honour accordingly rejected such ground. Barnes FM also found that the Tribunal had complied with the requirements of s 424A of the Act.

    APPEAL TO THIS COURT

13. On 25 March 2008 the appellants filed a notice of appeal in this Court which raised three grounds of appeal as follows:

    1.The respondent did not carefully consider the information which is in favor [sic] of the applicants.

    2.Member of the Tribunal failed to understand our claims and failed to consider relevant matters, further particulars to be provided.

    3.There was no evidence or the other materials to justify the making of the decision.

    FINDINGS

14. The appellant wife appeared at the hearing of the appeal on 27 May 2008 assisted by an interpreter. The appellant husband did not appear. At the hearing the appellant wife claimed that she had a 12 year old child whom she had left behind in the PRC in the care of her parents. Such submission is not relevant to the current appeal.

15. The first ground of appeal alleges that ‘the respondent’, which the Court assumes refers to the Tribunal, did not ‘carefully consider’ the information which was in favour of the appellants. No particulars have been provided to support such ground.

16. In its findings and reasons handed down on 26 June 2007 the Tribunal observed that it was ‘unimpressed with both Applicants’ account of how and why they embraced Falun Gong’. The Tribunal also found that the appellant wife gave ‘confused and unconvincing evidence to the Tribunal as to whether or not she was aware of the risk of engaging with Falun Gong in 2003’, and that the appellant wife provided ‘no plausible evidence of having weighed the potential consequences of embracing the practices peculiar to this banned group’. The Tribunal also found that the appellant husband ‘avoided addressing the risk factor’. The Tribunal found that the appellant husband’s account of how he became a Falun Gong practitioner was ‘unreliable’. The Tribunal did not accept on the evidence before it that the appellants became Falun Gong practitioners in the PRC. The Tribunal also found that the appellants had familiarised themselves with Falun Gong for the purpose of obtaining protection visas.

17. Each of the above findings is a finding of fact. This Court has no jurisdiction to review such findings: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392 per Mason CJ; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42. The Court accordingly rejects the first ground of appeal.

    The second ground of appeal claims that the Tribunal member failed to understand the appellants’ claims and failed to consider relevant matters. No particulars have been provided of such claim and there is no error apparent in the Tribunal decision. The Court is accordingly unable to make any finding in favour of the appellants in respect of such claim. Insofar as the ground may seek a review of the findings of the Tribunal, the Court again observes that it has no jurisdiction to review such findings. The second ground of appeal is accordingly not made out.

18. The third ground of appeal alleges that there was no evidence or other materials to justify the making of the Tribunal decision. Such ground again seeks to challenge the factual findings of the Tribunal decision. It is not the function of this Court to review findings of fact for the reasons set out above.

19. No error is apparent in the decision of either the Tribunal or the Federal Magistrate. It follows that the appeal must be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        27 May 2008

Solicitor for the Appellants:	The Appellants appeared in person
Solicitor for the First Respondent:	Ms Kantara

Date of Hearing:	27 May 2008
Date of Judgment:	27 May 2008