SZOGA v Minister for Immigration and Citizenship

[2010] FCA 848

FEDERAL COURT OF AUSTRALIA

SZOGA v Minister for Immigration and Citizenship [2010] FCA 848

Citation:		SZOGA v Minister for Immigration and Citizenship [2010] FCA 848
Appeal from:		SZOGA v Minister for Immigration & Citizenship & Anor [2010] FMCA 355
Parties:		SZOGA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 678 of 2010
Judge:		COLLIER J
Date of judgment:		10 August 2010
Legislation:		Migration Act 1958 (Cth) Div 4 Pt 7, s 424A, s 425
Cases cited:		Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 cited
Date of hearing:	10 August 2010
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	19
Solicitor for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First and Second Respondents:	Ms J Dinihan of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 678 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	10 AUGUST 2010
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, fixed in the amount of $1,600.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 678 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	10 AUGUST 2010
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Emmett FM delivered on 20 May 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 19 February 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of China who first arrived in Australia on 24 February 2008. On 24 July 2009 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 15 October 2009. On 13 November 2009 the appellant applied to the Tribunal for a review of that decision.

3. In a statement attached to her application for a protection visa, the appellant claimed that she feared persecution in China by reason of her practice of Falun Gong. She claimed that she was detained between August 2002 and January 2003 for being a Falun Gong practitioner. She was released after her husband paid the Deputy Secretary of the police station 50,000 yuan. However, in September 2004 she was again arrested and detained for up to four months. Her husband again paid 50,000 yuan to secure her release, and she was required to report to the police on a weekly basis. She claimed that she could no longer live in China, so left for Australia. However, as her husband continued to be harassed by the police, she secretly returned to China on 6 October 2008 for nine days to divorce her husband so that he would not be affected by her past. Before the Tribunal, the appellant also claimed to have publicly practised Falun Gong since arriving in Australia.

   REFUGEE REVIEW TRIBUNAL

4. The Tribunal found that the appellant was a very unreliable witness. The Tribunal did not accept that she was ever a Falun Gong practitioner in China or Australia. The Tribunal considered that her claims were not credible, and were seriously undermined by her own actions and behaviour in returning to China for a nine day visit with her son in October 2008.

5. The Tribunal therefore did not accept that she was detained on two occasions in China, or that her husband had to secure her release by paying bribes, or that she was required to report to the police on a weekly basis. The Tribunal also did not accept that she planned to be involved in any protest in China, that her husband was harassed and threatened by police, or that she divorced her husband in order to prevent his mistreatment by police on her account. Additionally, the Tribunal found that her scant knowledge of Falun Gong indicated that she had not practiced regularly since arriving in Australia, as claimed.

6. The Tribunal was therefore not satisfied the appellant was a person to whom Australia has protection obligations under the Convention, and affirmed the decision under review.

   FEDERAL MAGISTRATES COURT

7. On 17 May 2010 the appellant filed an application for judicial review of the Tribunal’s decision. In her application the appellant contended that:

   1.The Tribunal failed to carry out its statutory duty.

   2.Tribunal Member could not demonstrate that I do not face a risk of being suffered harm essentially if return to China.

   3.The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required to observe.

8. The Federal Magistrate was of the view that the above grounds made bare assertions that did not disclose an error capable of review by the Court. Her Honour found that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings which were a matter for it par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J). Further, the Tribunal conducted its review in accordance with the procedural requirements of Div 4 of Pt 7 of the Migration Act 1958 (Cth) (the Act).

9. Having found that the Tribunal decision was not affected by jurisdictional error, her Honour dismissed the application for review.

   APPEAL TO THIS COURT

10. By Notice of Appeal filed on 10 June 2010, the appellant raised the following grounds of appeal against the decision of Emmett FM:

    1.The Tribunal Member could not demonstrate that I do not face a risk of being suffered harm essentially if return to China.

    2.The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.

    [Errors in original]

    SUBMISSIONS OF THE PARTIES

11. At the hearing of the appeal before me the appellant reiterated that she was a Falun Gong practitioner and had told the truth to the Tribunal. She was self-represented.

12. The Minister was represented by counsel, and had filed written submissions prior to the hearing.

    FINDINGS

13. In my view the appellant’s grounds of appeal have no merit.

14. I note that the first ground of appeal was also raised before her Honour below. At [36] her Honour observed:

    I accept the submission of counsel for the first respondent that ground 2 presupposes that the Tribunal has the onus of disproving an applicant’s claims. It is well established that it is for an applicant to satisfy the decision maker that the applicant meets the criteria for being a refugee. The Tribunal must then decide whether an applicant’s claim is made out (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579 per Gummow and Hayne JJ). If the Tribunal is not so satisfied, s.65(1)(b) of the Act mandates that the Tribunal must refuse to grant the visa.

15. This passage states the law correctly. It follows that the appellant’s first ground of appeal should be dismissed.

16. The second ground of appeal is not particularised. At the hearing I asked the appellant to explain which procedures the Tribunal had failed to observe, which it was required to observe by the Act. The appellant was unable to elaborate on this ground of appeal.

17. Reviewing the reasons for decision of the Tribunal I am unable to identify any such procedures. Her Honour below found that the Tribunal had complied with the requirements of s 425, and that s 424A was not enlivened (at [43]-[46]).

18. The appellant has been unable to demonstrate any error in her Honour’s reasoning, or sustainable grounds for review of the decision of the Tribunal.

19. The appeal should be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       10 August 2010