SZLFI v Minister for Immigration and Citizenship
[2008] FCA 615
•5 May 2008
FEDERAL COURT OF AUSTRALIA
SZLFI v Minister for Immigration and Citizenship [2008] FCA 615
SZLFI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 206 of 2008
GOLDBERG J
5 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 206 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLFI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentJUDGE:
GOLDBERG J
DATE OF ORDER:
5 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read Minister for Immigration and Citizenship.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs fixed in the sum of $1,110.00
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 206 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLFI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GOLDBERG J
DATE:
5 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate on 31 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 29 June 2007 and published on 19 July 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.
The appellant is a citizen of People’s Republic of China. She arrived in Australia on 19 February 2007 and applied for a protection (Class XA) visa on 21 February 2007. A delegate of the Minister refused the application on 24 March 2007. On 26 April 2007, the appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal held a hearing on 28 June 2007 which the appellant attended.
Before the Tribunal the appellant claimed to have a well founded fear of persecution because of her role as one of the leaders of the Falun Gong organisation in Shanghai, which involved the dissemination of Falun Gong propaganda. The appellant claimed there was strict monitoring of Falun Gong practitioners and she was uncertain as to what would happen to her in the future. At the hearing before the Tribunal the appellant said that since her arrival in Australia in February 2007 she had not practised Falun Gong and had made no contact with Falun Gong practitioners in Australia. She did not know the number or form of the five Falun Gong exercises. She said that she had not practised Falun Gong in China because she was too scared. She had simply been involved in promoting Falun Gong. The Tribunal made the following finding:
“During the hearing the applicant was unable to provide answers to basic questions about Falungong beliefs and practices: she was unable to identify the principal scripture of Falungong (Zhuan Falun) and did not know the number (5) or form of the Falungong exercises. She admitted that in the 4 months since her arrival in Australia she had not practiced Falungong and had made no contact with Falungong practitioners in Australia.”
The Tribunal found that because of the appellant’s ignorance of basic Falun Gong beliefs and practices, which she manifested at the hearing, and her admitted failure to practice Falun Gong or contact Falun Gong practitioners since her arrival in Australia, it did not accept that the appellant was a genuine Falun Gong practitioner or promoter. The Tribunal also did not accept the appellant’s claims that she was persecuted for her Falun Gong beliefs, practices and other Falun Gong‑related activities. The Tribunal did not accept that there is a real chance:
“…that she will practice or promote Falungong if she returns to China, nor that there is a real chance that she will be persecuted for reasons of her claimed Falungong beliefs, practices and/or related activities if she returns to china now or in the reasonably foreseeable future.”
Before the Federal Magistrate the appellant raised three grounds of appeal:
“1.It is not reasonable for the Tribunal not to accept that I am a Falun Gong practitioner.
2.I was denied procedural fairness in connection with the making of the decision.
3.The Tribunal failed to assess the possibility of the risk of being prosecuted for the applicant if the applicant returns to China.”
The Federal Magistrate made the following observation in his judgment:
“When the applicant appeared before me today, I asked her to explain to me in her own words why she believed the Tribunal had made an error of law in the manner in which it reached the decision that I have referred to. The applicant told me that she did not know how to answer that question. After some further questioning by me, she told me that she believed that she had told the Tribunal the truth and she wanted me to give her another chance to convince another Tribunal of this fact. An allegation of this type does not point to any particular jurisdictional error in the findings of the Tribunal and would normally be considered to be a request for impermissible merits review.”
The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that there was evidence upon which the Tribunal could make its findings and that there was no scope for the Court to change them. The Federal Magistrate also found that there was no denial of procedural fairness or jurisdictional error.
The notice of appeal raised the following grounds:
“1.It is not reasonable for the Tribunal not to accept that I am a Falun Gong practitioner.
2.The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.
3.The Tribunal failed to assess the possibility of the risk of being persecuted for the applicant if the applicant returns to China.”
These grounds are, in substance, the same grounds as were advanced before the Federal Magistrate.
At the hearing of the appeal before me today the appellant submitted that her complaint was that the Federal Magistrate did not rule in her favour, and that what she said before the Tribunal was the truth. Those submissions do not disclose any basis for contending that either the Tribunal or the Federal Magistrate made an error in law in their reasoning, or that they committed a jurisdictional error in the course of reaching their conclusions. In my opinion, the approach employed by the Federal Magistrate, and his Honour’s conclusions, do not disclose any error in law or in jurisdiction.
The first ground of appeal is simply a request to look at the merits of what the Tribunal did and, in effect, to run the case afresh. That is not an appropriate basis for raising an appeal in this Court or, indeed, in the Federal Magistrates Court.
The appellant’s second ground that the Tribunal failed to exercise its jurisdiction by not observing procedures, which it was required by the Act to observe, is also not made out. The appellant did not point to any specific procedure which the Tribunal failed to observe, and I have been unable to discern any such failure in the Tribunal’s process or its reasoning by which it reached its decision.
The third ground of appeal, that the Tribunal failed to assess the possibility of the risk of being persecuted for the appellant if the appellant returns to China, is also not made out. It was open to the Tribunal to conclude that the appellant was not a Falun Gong practitioner and in those circumstances, it followed that the possibility of a risk of being persecuted for the appellant if she returned to China did not exist.
It is implicit in the Tribunal’s reasons that it considered the possibility of risk of the appellant being persecuted, but rejected that possibility having regard to its earlier findings. No error is disclosed in that conclusion.
The appeal should be dismissed.
I certify that the preceding fourteen (14) 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 Respondents: Ms M Mafessanti Solicitor for the Appellant: Clayton Utz
Date of Hearing: 5 May 2008 Date of Judgment: 5 May 2008
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