SZLTZ v Minister for Immigration & Citizenship

[2008] FCA 1192

FEDERAL COURT OF AUSTRALIA

SZLTZ v Minister for Immigration & Citizenship
[2008] FCA 1192

SZLTZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 942 OF 2008

GORDON J
12 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 942 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTZ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GORDON J
DATE OF ORDER:	12 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.

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 942 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLTZ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GORDON J
DATE:	12 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against an order of Federal Magistrate Lloyd-Jones of 4 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 20 November 2007.  The Tribunal affirmed a decision of a delegate of the first respondent (“the first respondent”) to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (“the Act”).

   PROCEDURAL HISTORY

2. The appellant is a citizen of the People’s Republic of China (“China”) who first entered Australian on 3 May 2007.  On 10 May 2007, the appellant lodged an application for a protection visa with the first respondent.  The first respondent refused the application for a protection visa on 23 July 2007. 

3. On 23 August 2007 the appellant applied to the Tribunal for a review of that decision.  On 20 November 2007 the Tribunal affirmed the decision of the first respondent.  The appellant sought review of the Tribunal’s decision and on 4 June 2008, by Order of Lloyd-Jones FM, the Court dismissed the application. 

4. Before the Tribunal, the appellant claimed to fear persecution in China as she claimed to be a Falun Gong practitioner.  The appellant informed the Tribunal that she was introduced to Falun Gong by a friend in China in 2003 and began to practise at home and with others in a public park.  The appellant claimed that she was dismissed from work after her employer suspected her of practising Falun Gong.  The appellant claimed that she had not practised Falun Gong in Australia.

   THE TRIBUNAL DECISION

5. The Tribunal was not satisfied that the appellant was a Falun Gong practitioner due to her inability to identify key tenets of Falun Gong practice and belief or to demonstrate any of its exercises.  She also incorrectly identified that the date on which Falun Gong was outlawed in China as being in 1996 (as opposed to 1999).  As such, the Tribunal did not accept that the appellant had met regularly in a public park with other practitioners in China in 2003, further noting the high degree of danger which would be involved.  The Tribunal did not accept that the evidence of the appellant’s friend added any weight to her claim to have practised in China.

6. Not being satisfied that the appellant was a genuine practitioner or possessed the profile of a Falun Gong practitioner, the Tribunal did not accept that the appellant had been dismissed from her employment due to her adherence to Falun Gong or was likely to suffer future persecution on this basis.

   THE COURT BELOW

7. Before the Federal Magistrate, the grounds stated in the application were:

   1.The [Tribunal] refused me just because the [Tribunal] doesn’t believe what I said. This is subjective. This is only personal opion (sic). [The Tribunal] didn’t apply the Act properly.

   2.Decision maker should use legislation, Act and shouldn’t use personal opion (sic) to make decision.

8. The Federal Magistrate found that the Tribunal discharged its responsibility as an inquisitorial body (at [23]) and dismissed the appellant’s claims due to its adverse credibility findings (at [25]-[26]).  After referring to the existence of a long line of authority, his Honour referred to the fact that it was acceptable for the Tribunal to accumulate a body of knowledge in relation to particular areas and apply this knowledge when making findings.  This was particularly so in the context of the practice of Falun Gong.  In the present case, his Honour determined that is what the Tribunal did – it found that the appellant’s claims were inconsistent and implausible in light of the Tribunal’s understanding of Falun Gong practice.

9. The application was dismissed.

   APPLICATION TO THIS COURT

10. On appeal to this Court, three grounds of appeal were stated:

    1.The … Tribunal failed to apply the ... Act properly.

    2.I had terrible experience when I was in China.

    3.The … Tribunal made its decision only depending on personal opinions.

    GROUNDS 1 AND 3

11. Grounds 1 and 3 were addressed in Ground 2 before the Federal Magistrate.  I can identify no appellable error.  Cases such as Commonwealth v Blackwell (1987) 73 ALR 571 at [5] are authority for the proposition that a Tribunal may draw on its own accumulated knowledge provided that it retains an open mind in assessing an applicant’s claims. Here, the Tribunal applied its knowledge of what could be expected of a Falun Gong practitioner in appraising the appellant’s own knowledge. It gave the appellant the opportunity to demonstrate her own understanding and also had recourse to country information in reaching its own conclusions. There was nothing to suggest that the Tribunal had closed its mind to persuasion due to strict preconceptions or gross subjectivity in its decision-making.

12. To the extent that the appellant appears to complain about a failure of the Tribunal to comply with the procedural fairness requirements of the Act, those complaints should also be dismissed.

13. I have reviewed the Tribunal’s reasons for decision. The Tribunal complied with s 425 of the Act by inviting the appellant to a hearing to discuss the issues on review. Specifically, it questioned the appellant on issues relating to her knowledge of Falun Gong and what had allegedly occurred to her in China.

14. The Tribunal also complied with s 424A(1) of the Act. To the extent that the appellant provided oral evidence to the Tribunal and in connection with her protection visa application, such evidence fell within the exceptions in s 424A(3)(b) and s 424A(3)(ba). To the extent that the Tribunal relied on country information relating to Falun Gong and other issues in China, such information fell within the exception in s 424A(3)(a). The evidence given to the Tribunal by the appellant’s friend was generally supportive of the appellant’s claims. Had the witness’ evidence been believed, it “would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review” (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]) and therefore fell outside the scope of s 424A(1).

15. I cannot identify an appellable error.  An appeal would have no prospects of success. 

    GROUND 2

16. It was for the appellant to satisfy the Tribunal that she satisfied the criteria for a grant of a protection visa: ss 35 and 35 of the Act. The appellant failed to do so. The Tribunal was unable to reach the requisite state of satisfaction for the reasons earlier identified: see [5] and [6] above. There was evidence and material before the Tribunal on which it could base its decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. What the appellant seeks is merits review of the Tribunal’s fact finding function. That is not the role of this Court: see Part 8 of the Act and Abebe v Minister of State for Immigration and Multicultural Affairs (1997) 49 ALD 603 at 604.

    CONCLUSION

17. I would dismiss the appeal and order the appellant to pay the first respondent’s costs of the appeal to be taxed in default of agreement.

18. The second order sought by the appellant is “a decision that [the appellant] meet[s] the refugee criteria”.  Insofar as this seeks an order by the Court for the grant of a visa, that is not an order which the Court can make.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated:        12 August 2008

The Appellant:	Self Represented
Counsel for the First Respondent:	Ms McDonald
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	12 August 2008
Date of Judgment:	12 August 2008