SZFDR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 181 (27 February 2006)

Last Updated: 8 March 2006

FEDERAL COURT OF AUSTRALIA

SZFDR v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 181

SZFDR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL


NSD 2186 of 2005





BRANSON J
27 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2186 of 2005

BETWEEN:	SZFDR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	27 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs fixed in the amount of $3000.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2186 of 2005

BETWEEN:	SZFDR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	27 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of the Federal Magistrates Court which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

2 The appellant is a citizen of the People’s Republic of China (‘PRC’). He arrived in Australia on 20 March 2004. On 1 April 2004 the appellant lodged an application for a protection visa (class XA) with the first respondent (‘the Minister’). The appellant claimed to possess a well-founded fear of persecution on grounds of being a Falun Gong practitioner. He claimed that he was detained, tortured and fined by Chinese authorities in 1999 because he was a Falun Gong practitioner. A delegate of the Minister refused to grant the appellant a protection visa.

3 The appellant lodged an application for review of the decision by the Tribunal on 30 April 2004. At the hearing, the appellant provided the Tribunal with a receipt which he claimed was receipt for a fine he had received upon being detained by the authorities because of his practice of Falun Gong.

4 On 11 November 2004 the Tribunal affirmed the decision of the delegate of the Minister. It found that while there may have been elements of truth in some of the appellant’s claims, those claims had been seriously embellished and were inconsistent with independent country information. The reasons for decision of the Tribunal deal with the receipt provided by the appellant in the following way:

‘The receipt is for payment of a fine for unspecified "illegal activities". I have not tested the genuineness of the document, but, even if it is genuine, it shows only that, in 1999, the [appellant] paid a fine.’

5 The appellant’s application to the Federal Magistrates Court was inappropriately drawn in that it sought merits review, rather than judicial review, of the decision of the Tribunal. However, the reasons for judgment of the learned Federal Magistrate reveal that the appellant claimed that the Tribunal was wrong to find that the receipt provided by him did not show that he had been fined for engaging in Falun Gong activities.

6 The Federal Magistrate dealt with the appellant’s claim about the receipt in the following passage from his Honour’s reasons for judgment:

‘At the hearing before me the [appellant] at first said that the receipt made a reference to Falun Gong, but sometime later said that it said "illegal activities". In any event, the [appellant] who has had the benefit of some legal advice has brought no evidence before the Court to dispute the Tribunal’s account of what occurred at the hearing before it. There is nothing to show that the Tribunal was aware that a proper translation was anything other than there was no reference to Falun Gong. Further I note that the issue of the receipt was specifically raised with the [appellant] in the Tribunal’s letter to him of 30 September 2004. The Tribunal made specific reference to its belief at the time, that the receipt that the [appellant] produced purporting to be a payment to secure his release from detention was not genuine. The [appellant], who was assisted by a migration agent throughout his application to the Tribunal, was clearly on notice as to the significance of the issue of the receipt, the Tribunal’s view that it did not believe it was genuine and that this issue was part of the Tribunal’s concerns about the credibility of the [appellant’s] claims. The [appellant’s] response, although not stated as such on its face to the Tribunal’s letter ... does not appear to be responsive to the specific issues raised by the Tribunal in its letter, but in particular in relation to the receipt, the [appellant] makes no mention.’

7 The Federal Magistrate concluded that, in these circumstances, there was no error in the way the Tribunal dealt with the issue of the receipt. After expressing the view that he could see no jurisdictional error in the Tribunal’s decision, his Honour dismissed the application to the Federal Magistrates Court.

8 In this Court the appellant has re-asserted his claim that the receipt shows that he was fined for practising Falun Gong. He has advanced no other submissions in support of his appeal.

9 I am not satisfied that the approach taken by the Federal Magistrate to the appellant’s complaints concerning the way in which the Tribunal dealt with the alleged receipt discloses error on the part of the Federal Magistrate. As the alleged receipt was not in English, its contents were an issue of fact to be determined by the Tribunal. The Tribunal, as its reasons for decision reveal, received evidence from an interpreter as to the contents of the receipt. The interpreter translated the text of the receipt relevantly as follows:

‘Today received from [the appellant] for involvement in illegal activities fine of RMB 5000 (then in words five thousand).’

10 The Federal Magistrate did not err in concluding that the Tribunal was entitled to accept and act on the above evidence. In any event, no evidence in proper form was placed before the Federal Magistrate, or indeed this Court, to suggest that the contents of the receipt were not correctly translated before the Tribunal.

11 It is appropriate to record that the issue of the receipt played only a small part in the reasons for decision of the Tribunal. The Tribunal’s satisfaction that the appellant does not have a well-founded fear of persecution if returned to the PRC was based principally on what it considered to be implausible aspects of his claims and inconsistencies between those claims and independent country information. The Tribunal also attached significance to the appellant’s ability to leave the PRC freely and his abandonment of the practice of Falun Gong.

12 The appeal will be dismissed with costs fixed in the sum of $3 000.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 6 March 2006

The appellant appeared in person.
Counsel for the Respondents:	J A C Potts
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	27 February 2006
Date of Judgment:	27 February 2006