SZNAL v Minister for Immigration and Citizenship

[2009] FCA 1282

FEDERAL COURT OF AUSTRALIA

SZNAL v Minister for Immigration and Citizenship [2009] FCA 1282

Migration Act 1958 (Cth) s 91R(3)

SZNAL v Minister for Immigration and Citizenship [2009] FMCA 673 affirmed

SZNAL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 767 of 2009

BENNETT J
4 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 767 of 2009

BETWEEN:

SZNAL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	4 NOVEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant to pay the first respondent’s costs as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 767 of 2009

BETWEEN:

SZNAL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	4 NOVEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China who arrived in Australia on 3 April 2008. She lodged an application for protection visa, which was refused by a delegate of the Minister. On an application for review of that decision, the Refugee Review Tribunal affirmed the decision of the delegate. The Tribunal was not satisfied the applicant’s conduct in Australia satisfied s 91R(3)(b) of the Migration Act 1958 (Cth) (‘the Act’). On an application for review to the Federal Magistrates Court, Raphael FM dismissed the application (SZNAL v Minister for Immigration and Citizenship [2009] FMCA 673).

2. In her notice of appeal the appellant raises a single ground, which, as particularised, may raise certain sub-grounds. The ground in the notice of appeal is that the Federal Magistrate failed to consider the applicant’s claim that the RRT decision was affected by jurisdictional error in that it incorrectly applied s 91R(3) of the Act. The particulars are:

   1.“According to s 91R(3), the Tribunal must disregard the applicant’s conduct in Australia.” (‘Ground 1’)

   2.“The Tribunal failed to invite the applicant to establish the purpose for her Falun Gong practice in Australia.” (‘Ground 2’) 

   3.“The applicant claims that she did not practise Falun Gong for the purpose of her current visa applicant.” (‘Ground 3’)

3. Before the Tribunal the appellant claimed that she became a practitioner of Falun Gong in 1998 but that in 1999 she ceased practising Falun Gong when Falun Gong was banned.  The appellant did not claim to have left China because she was a Falun Gong practitioner who was unable to practise Falun Gong.  Rather, her claim seems to have been that she had a well-founded fear of persecution due to her imputed political opinion as a person who opposed the government’s treatment of Falun Gong practitioners.

4. She claimed that she had been detained by police who beat and threatened her and that council members had visited her home, including after she left China.  She claimed that since coming to Australia, she had practised Falun Gong and had attended two demonstrations.  The appellant gave the Tribunal some detail of her actions since she arrived in Australia and in respect of her practice of Falun Gong.  The Tribunal did not accept that a genuine interest in and a commitment to Falun Gong led the appellant to take up Falun Gong in Australia. 

5. The Tribunal considered each of the claims made by the appellant and gave reasons for rejecting those claims individually.  The Tribunal ultimately concluded that it did not accept that there was a real chance that she would face persecution if she returned to China, either because of her political opinion or imputed political opinion. 

6. In the Federal Magistrates Court, Raphael FM found that the Tribunal decision was not affected by jurisdictional error and dismissed the application. His Honour rejected the allegation that the Tribunal had misapplied s 91(3) of the Act.

7. The appellant has appeared before me in person, assisted by an interpreter.  The matters that she raised, in oral submissions in the appeal, do not go to the substance of the ground of appeal in her notice of appeal.  Rather the appellant raised factual matters that are not a matter for the Court. 

   Ground 1 - Section 91R(3)

8. The Tribunal set out in some detail the appellant’s claims as to her practise of Falun Gong in Australia. The Tribunal said that it was of the view that her attendance at Falun Gong practice in Australia was deliberately for the purpose of supporting her claim to be a refugee. It was of the view that she only attended Falun Gong practice and only participated in demonstrations in Australia against the Chinese authorities for the purpose of strengthening her claim to be a refugee. The Tribunal stated that it therefore disregarded this conduct. As Raphael FM found and as apparent from the Tribunal’s reasons, the Tribunal, having come to the conclusion that it was not satisfied that the appellant’s conduct in Australia was engaged in otherwise than for the purpose of strengthening her claim to be a refugee, took no further regard as to the existence of that conduct in accordance with s 91R(3).

9. The Tribunal did not take that conduct into account in a way adverse to the appellant’s claim to refugee status, its decision being prior in time to the decision of the High Court in Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595.

10. I can discern no error in the Tribunal’s application of s 91R(3). Ground 1 is not made out.

    Ground 2

11. As pointed out by the solicitor for the Minister, this could raise an allegation that the Tribunal failed properly to inform the appellant of s 91R(3) and the consequences of the application of that section. Whether or not this is what the appellant intends to convey in her notice of appeal, it is apparent from the Tribunal’s reasons that it expressly explained to the appellant that, if it decided that she had primarily practised Falun Gong in order to strengthen her claim to be a refugee, it may disregard her practise in Australia. The Tribunal then gave the appellant the opportunity to describe her activities in the light of that warning.

12. I see no error on the part of the Tribunal in that regard. 

    Ground 3

13. This ground raises merits review which is not a matter for the Court. 

14. It follows that the appellant has not made out her ground of appeal either in a failure to apply s 91R(3) or in any contravention of other provisions of the Act, such as s 425. The appeal should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        11 November 2009

Counsel for the Appellant:	The Appellant appeared in person.
Solicitor for the First Respondent:	Ms L Weston of DLA Phillips Fox

Date of Hearing:	4 November 2009
Date of Judgment:	4 November 2009