SZNPQ v Minister for Immigration and Citizenship
[2009] FCA 1296
•13 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZNPQ v Minister for Immigration and Citizenship [2009] FCA 1296
SZNPQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 989 of 2009
SIOPIS J
13 NOVEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 989 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNPQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
13 NOVEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs in the sum of $3,600.00.
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 989 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNPQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
13 NOVEMBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of the People’s Republic of China who arrived in Australia on 13 October 2008. On 16 October 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 11 December 2008. On 12 January 2009, the appellant applied to the Tribunal for a review of that decision.
Before the Tribunal, the appellant claimed to be “a common Falun Gong practitioner” in China. The appellant claimed that she was introduced by a friend to Falun Gong in 1998 and that she and her friends practised Falun Gong together in an open space set aside by their local Residential Committee for people to exercise. The appellant had continued to practise Falun Gong in the public area until her arrest in 2001. The appellant also said that she had been arrested and detained a number of times. She claimed to have been sentenced to one year imprisonment and to have been tortured. The appellant also said that she went on a hunger strike whilst she was in detention. The appellant went on to say that on her release from prison she had borrowed money to bribe a government officer to “delete her record” so she could get a passport. She had used the passport to come to Australia. The appellant claimed that the PSB security police continued to visit her home after her release from prison three or four times a month up to the time that she left for Australia. The appellant confirmed that this meant that the police knew that she was a Falun Gong practitioner.
The appellant also said that she had practised Falun Gong in Australia in “Central Park”. She submitted a number of photographs which appeared to show the appellant in a protest which she said was a campaign to persuade people to leave the Chinese Communist Party.
THE TRIBUNAL
The Tribunal noted that the appellant’s knowledge of Falun Gong when questioned at the hearing was “scanty” but placed no weight on what it described as “anomalies” in this part of her evidence. The Tribunal accepted that the interval between the last time she practised Falun Gong in China and the commencement of practice in Australia in 2008, might explain her apparent ignorance of important texts in Falun Gong.
However, the Tribunal found other parts of her evidence raised significant doubts as to the credibility of her claims. In particular, it found her claim to have practised Falun Gong in China in the manner that she claimed, between 1998 and 2001, to be implausible and not credible. This was because independent country information indicated that the Chinese government declared Falun Gong to be an “evil cult” and banned its practice in July 1999. The Tribunal said that it was implausible that, in those circumstances, the appellant would have been able to continue to practise Falun Gong in public in Shanghai during daylight hours with a group of others, for 18 months thereafter, before being arrested.
Further, the Tribunal found that the appellant’s claim to have been able to obtain a passport after her record had been “cleaned” to be inconsistent with her claim that security officials continued to come to her house three or four times a month until her departure for Australia.
The Tribunal also found the appellant’s evidence that she was dismissed from her employment after her alleged release from prison in 2002 to be inconsistent with her claim earlier in the hearing that she had worked in the same job from 1972 until she left China for Australia in 2008. Further, the Tribunal found that the appellant’s explanation for this inconsistency, namely, that although dismissed she was still an employee, not to be plausible.
The Tribunal found that these matters meant that her evidence generally was not credible and was not satisfied that the appellant had any involvement with Falun Gong in China nor that she had ever suffered harm for such a reason.
The Tribunal accepted that she had some involvement with Falun Gong in Australia. However, the Tribunal said that it was not satisfied the appellant had engaged in that conduct other than for the purposes of strengthening her claim to be a refugee. Consequently, the Tribunal said that it had disregarded such conduct pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act).
Further, the Tribunal rejected the claim that on her return the authorities would be interested in her as a Falun Gong practitioner who had applied to remain in Australia, on the basis that she was not a Falun Gong practitioner in China, and that there was no material before it to suggest that she would be suspected of having applied for protection in Australia.
The Tribunal also rejected any claim that she would be at risk on return to China because of what she said had occurred to her family during the “Cultural Revolution” over thirty years earlier.
Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
THE FEDERAL MAGISTRATE
On 18 May 2009, the appellant sought judicial review in the Federal Magistrates Court. The application claimed that:
1.The Refugee Review Tribunal failed to consider and determine whether the applicant faces a real chance of persecution in China on the basis that she is a Falun Gong practitioner. The ground could give rise to a well-founded fear of persecution for a convention reason, and there was evidence before the Tribunal to that effect. As a consequence of above-mentioned reason, the decision from the Tribunal is affected by jurisdictional error and must be quashed.
2.The Refugee Review Tribunal failed to deal with an integer of my claims, I have practiced Falun Gong since my arrival in Australia. I will be prosecuted if I return to China because I practice Falun Gong in Australia. The Tribunal made no finding as to whether or not this occurred, no findings about the potential application of section 91 (R), and no findings about whether or not, if it did happen, it gave rise to a real chance of persecution.
The Federal Magistrate dismissed each of the grounds of review relied upon by the appellant.
THE APPEAL
On 9 September 2009, the appellant filed a notice of appeal in which she repeated the claims made in her application for judicial review in the Federal Magistrates Court. I have treated the notice of appeal as a contention that the Federal Magistrate erred in rejecting each of the two grounds of review.
In relation to the first ground of appeal, the Federal Magistrate stated that the Tribunal had carefully considered the appellant’s claims and the evidence.
Further, the Federal Magistrate observed that the complaint made by the appellant did not rise above a request that the court engage in a merits review. The Federal Magistrate observed that it was not for the court to undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The Federal Magistrate went on to observe that the findings of the Tribunal were open to it on the evidence before it and for which it gave reasons.
In my view, the Federal Magistrate did not err in making these findings. The Tribunal identified inconsistencies in the appellant’s evidence and the Federal Magistrate correctly found that the findings made by the Tribunal were open to it. It was not the role of the Federal Magistrates Court to embark upon a merits review.
Before me, in oral submissions, the appellant contended that the Tribunal should have accepted her evidence because she had told the truth. These submissions, however, did not disclose any error by the Federal Magistrate.
The first ground of appeal is dismissed.
In respect of ground 2, the Federal Magistrate found that the Tribunal had dealt with the appellant’s claim that she had practised Falun Gong in Australia, and accepted that the appellant had some involvement with Falun Gong in Australia.
However, said the Federal Magistrate, the Tribunal had then considered the application of s 91R(3) of the Act, and found that it was not satisfied that this conduct was engaged in other than for the purpose of enhancing her refugee claim. It, therefore, disregarded the conduct.
In my view, the Federal Magistrate did not err in making the findings which he made on this ground of review. The Tribunal did deal with this aspect of the claim (see [63] of the Tribunal’s reasons), but disregarded the conduct in Australia, pursuant to s 91R(3) of the Act, on the basis of its finding that it was not satisfied the conduct was not engaged in for the purposes of strengthening the claim to be a refugee. This finding is quite consistent with the rejection of the appellant’s claim to have been a Falun Gong practitioner in China, on credibility grounds.
This ground of appeal is dismissed.
The appeal is dismissed with costs.
I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 13 November 2009
Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Mr GT Johnson Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 11 November 2009 Date of Judgment: 13 November 2009
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