SZLCH v Minister for Immigration and Citizenship

[2008] FCA 616

FEDERAL COURT OF AUSTRALIA

SZLCH v Minister for Immigration and Citizenship [2008] FCA 616

SZLCH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 213 of 2008

GOLDBERG J
5 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 213 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLCH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE OF ORDER:	5 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1         The appeal be dismissed.

2.        The appellant pay the first respondent’s costs fixed in the sum of $1,300.00

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 213 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLCH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	5 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate on 30 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 6 June 2007 which was handed down on 28 June 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant a Protection (Class XA) Visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China.  The appellant arrived in Australia on 15 November 2006 on a student guardian visa (subclass 580) in relation to her 17 year‑old daughter who was studying in Australia.  She applied for a protection visa on 20 December 2006 which a delegate of the Minister refused to grant on 20 January 2007.  On 13 March 2007 the appellant lodged an application for review of the delegate’s decision with the Tribunal. 

3. Before the Tribunal, the appellant claimed to have a well‑founded fear of persecution if she returns to China because of her practice of Falun Gong in Australia.  According to the appellant, she was introduced to Falun Gong while in Australia through reading about it in the Epoch Times, a Chinese daily newspaper.  She subsequently joined a group which practised Falun Gong near Campsie railway station in Sydney and made friends with some local Falun Gong members who taught her some basics about Falun Gong.  Although the appellant’s husband in China and daughter in Australia advised her not to practise Falun Gong due to the risks which this might create if she returned to China, she claimed that she, in her words, just could not help herself.  The appellant stated that the Chinese government maintained a list of Falun Gong practitioners and that she was afraid that she would be arrested if she returned.

4. At a hearing before the Tribunal on 5 June 2007, the appellant said a friend had introduced her to Falun Gong shortly after her arrival in Australia and that she read some articles about Falun Gong in the Epoch Times.  The appellant said she only practised Falun Gong at home and had never practised it outside her home as she feared that other people would learn that she practised Falun Gong and this would have a negative impact on her daughter. 

5. The Tribunal questioned the appellant regarding certain aspects of Falun Gong practice and philosophy.  The Tribunal found that it could not be satisfied that the appellant was a genuine Falun Gong practitioner.  It noted that the appellant practising at home did not involve her in performing the five basic Falun Gong exercises, that she only had a vague idea of the nature of the exercises and that the appellant had, by her own admission, never read any of the works of Master Li Hongzhi, the founder of Falun Gong.  Moreover, the Tribunal did not accept that a person with a genuine interest in Falun Gong would have failed to contact other Falun Gong practitioners to teach her about the faith or failed to take steps to obtain and read the teachings of Li Hongzhi.

6. On the basis of all the information before it, the Tribunal was not satisfied that the appellant was a genuine Falun Gong practitioner, or that she had had any significant contact with the Falun Gong faith.  As a consequence it did not accept that the appellant had a well‑founded fear of persecution within the meaning of the United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (“the Convention”) if she were to return to China.

7. Before the Federal Magistrates Court the appellant raised a single ground in her application for review, contending that the Tribunal’s decision was affected by judicial error in that it failed to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”). This ground was supported by the following particulars:

   “The Tribunal does not accept the applicant is a genuine Falun Gong practitioner.  The applicant has limited knowledge about Falun Gong because his (sic) friend who taught her Falun Gong has returned to China and that she is only a beginner in Falun Gong.  The Tribunal commented in the decision record that ‘if am not satisfied that, if she had any genine [sic] interest in Falun Gong or attachment to it, she would have failed to contact other Falun Gong practitioners to teach her more about the faith or that she would not have taken steps to obtain and read the teachings of Li Hongzhi.”  The applicant claims that she did not contact other Falun Gong practitioners because she does not know whom she can trust, given the fact that the Chinese Government has spy [sic] in Australia monitoring Falun Gong.  She only trusts her friend who is a Falun Gong practitioner.  Moreover, she has to look after her daughter who is studying in Sydney.

   The applicant claims that the Tribunal should have invited her to comment on the above information so that she can explain on it [sic].”

8. The Federal Magistrate agreed with and adopted the following submission of the Minister:  

   “The ground of review pleaded by the applicant is misconceived. The information identified by the applicant refers to information that the Applicant gave to the Tribunal for the purposes of the application for review and is therefore subject to the exception in s.424A(3)(b) of the Migration Act 1958 (Cth) (‘the Migration Act’). Accordingly, the first respondent submits that there was no breach of s.424A of the Migration Act.

   Further, insofar as this is a complaint about s.425 of the Migration Act, the Tribunal complied with its obligations under that section. The Tribunal’s reason for rejecting the applicant’s claims was that the applicant did not appear to be a genuine Falun Gong practitioner because of her lack of knowledge of that practice.

   To the extent that the applicant complains that she was not given an opportunity to comment on the fact that the Tribunal did not believe that she was a genuine Falun Gong practitioner because of her limited knowledge about it, the Tribunal’s record of hearing demonstrates that the questions asked of the applicant were sufficient to put her on notice that the Tribunal had doubts as to whether the applicant was a genuine Falun Gong practitioner.  The Tribunal also questioned the applicant about who had taught her about Falun Gong in Australia.  There was a lengthy discussion about the fact that the applicant’s practitioner friend had only taught the applicant very basic principles of Falun Gong and that the applicant was awaiting her friend’s return from China to continue her teaching.

   Further, the Delegate’s reasons for rejecting the applicant’s claims were due to the applicant's lack of knowledge about Falun Gong.  Accordingly, the applicant would have been aware of the issues that were under review:  see SZBEL v Minister for Immigration (2006) 228 CLR 152.”

9. The Federal Magistrate found that there was no jurisdictional error in the Tribunal’s decision and, in my view, his Honour was correct in law in so finding. Further, he made no error of law in agreeing with and adopting the Minister’s submissions referred to above. These submissions state correctly that the Tribunal did not breach s 424A(1) of the Act and that it complied with its obligations under s 425 of the Act.

10. The notice of appeal filed by the appellant in this Court on 20 February 2008 disclosed one ground of appeal, namely that the Federal Magistrates Court failed to consider her claim that the Tribunal’s decision was affected by judicial error in that the Tribunal failed to comply with s 424A of the Act. That ground restated the same particulars as were set out in the application for judicial review to the Federal Magistrates Court.

11. At the hearing of the appeal before me the appellant submitted that the Federal Magistrate’s analysis of her association with Falun Gong was not correct.  She argued that she only had contact with her friends and learnt Falun Gong from her friends, and did not learn from others because she contended that there were Chinese spies here in Australia.  She also said that she practised Falun Gong to improve her health.  However, none of these submissions raise any appellable ground, or identify any error in the decision of the Federal Magistrate.  It is not for me to look at the Tribunal’s decision afresh.  My role is limited to discerning whether there is jurisdictional error in the Federal Magistrate’s decision, and also by reference to the Tribunal’s decision. 

12. The Federal Magistrate found that there was no breach of s 424A of the Act on the basis that the information upon which the Tribunal relied was information given to it by the appellant. It therefore fell within s 424A(3)(b) of the Act, which provides that s 424A does not apply to information which the appellant gave for the purpose of the application for review. In any event, the Tribunal put its concerns to the appellant for her comment, and she responded to them. I am satisfied that there was no error in the Federal Magistrate’s findings and conclusions. The Tribunal’s reasons for its ultimate rejection of the appellant’s claims were based on its lack of satisfaction in relation to the appellant’s claim to be a Falun Gong practitioner. It was open to the Tribunal, on the material before it, to reach this conclusion, and the Magistrate was correct in finding there was no error in that respect.

13. The Federal Magistrate noted that no other issue in the case supported a claim of jurisdictional error and, in my view, he was correct in so finding.  In summary, I am satisfied that the approach of the Federal Magistrate and his Honour’s conclusions were correct in law, and there is no jurisdictional error disclosed in his Honour’s reasons or conclusions.  The appeal should be dismissed and the appellant pay the first respondent’s costs fixed in the sum of $1,300.00. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:
Dated:        7 May 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms S Burnett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 May 2008
Date of Judgment:	5 May 2008