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Federal Court of Australia |
Last Updated: 8 March 2007
FEDERAL COURT OF AUSTRALIA
SZJCB v Minister for Immigration and Citizenship [2007] FCA 150
SZJCB
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 2326 OF 2006
KENNY J
20 FEBRUARY
2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal fixed in the amount of $3,200.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZJCB
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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KENNY J
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DATE:
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20 FEBRUARY 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BACKGROUND
1 The appellant is a citizen of the People’s Republic of China. She arrived in Australian on 25 December 2005. On 30 December 2005, she lodged an application for a protection visa with the first respondent’s Department. The appellant claimed to fear persecution in China by reason of her membership of Falun Gong.
2 On 17 February 2006, a delegate of the first respondent refused to grant a protection visa to the appellant. On 24 March 2006, the appellant applied to the Refugee Review Tribunal for review of the delegate’s decision.
3 On 13 April 2006, the Tribunal wrote to the appellant inviting her to give oral evidence at a hearing on 12 May 2006. The appellant appeared at that hearing and gave evidence. On 26 May 2006, the Tribunal affirmed the delegate’s decision, which was handed down on 15 June 2006.
4 On 21 July the appellant lodged an application for judicial review in the Federal Magistrates Court. On 14 September July 2006, the appellant filed an amended application. A Federal Magistrate heard the application on 7 November 2006 and delivered judgment on the same day dismissing the application. The appellant appeals from that decision.
TRIBUNAL DECISION
5 The Tribunal found that the appellant was not a credible or truthful witness. This was because, first, the appellant had "a complete lack of knowledge of Falun Gong’s history and its basic principles". Secondly, her evidence showed a lack of knowledge of Falun Gong practice: for example, she was unable to demonstrate any of the exercises and did not understand the purposes of the exercises. Thirdly, her evidence about what happened to her when the Falun Gong was banned was "unconvincing". Thus, according to the Tribunal, she was unable to provide detail as to the type of questions the police asked her. Finally, the Tribunal found her evidence as to her practising Falun Gong after arriving in Australia "unconvincing". It found that she was not familiar with where she practises in Parramatta.
6 The Tribunal concluded that the appellant was not a genuine practitioner
of Falun Gong or that she was arrested or detained in
China because of being a
Falun Gong practitioner. Taking into account all of the evidence, the Tribunal
concluded that the appellant
fabricated her claims in order to bring herself
within the definition of ‘refugee’. The Tribunal noted that at the
end
of the hearing the appellant claimed that she did not want to return to
China because she had no house, no money and no husband there
– none of
which were Convention-related reasons for wanting to remain in
Australia.
FEDERAL MAGISTRATE’S DECISION
7 The appellant was unrepresented in the Federal Magistrate’s Court and made no submissions in support of her amended application.
8 The Federal Magistrate found that it was difficult to identify the nature of the appellant’s complaint about the Tribunal’s decision from her amended application, paragraph 1 of which contained no particulars. Her Honour held that the Tribunal complied with statutory regime and it was clear from the Tribunal’s decision that it understood and considered the appellant’s claims, made determinations in respect of those claims that were open on the evidence, and gave reasons for its findings. Her Honour noted that the remaining paragraphs of her amended application did not raise grounds for reviewable error. Since there was no error capable of review identified by the amended application and none was apparent on the face of the Tribunal’s decision or in its conduct of the review, her Honour dismissed the application.
CONSIDERATION
9 The appellant appeals to this Court on the following grounds:
"1. The Tribunal failed to address my claim that I was tortured by the police, was forced to declare separation from Falun Gong, and had to report my situation to the local police station every week after my arrest.
2. The Tribunal failed to provide to me, in a s 424A notice letter to me after I gave my oral evidence to the Tribunal, details of the ‘information I had provided to the Department’ earlier which the Tribunal stated was ‘inconsistent’ with my oral evidence as to employment, material status and place of residence."
10 The first respondent filed written submissions, which counsel addressed in Court today. The appellant, through an interpreter, said that her claims were true, that she was a practitioner of Falun Gong, and that she loved Australia. She did not attempt to make further submissions.
11 The first of the appellant’s contentions, as set out in her notice of appeal, is unsustainable. The Tribunal specifically considered the evidence that the appellant provided about what happened to her when Falun Gong was banned, including her evidence concerning her treatment at the hands of the police. The Tribunal set out in detail the evidence that the appellant gave and identified a number of inconsistencies. It is true that the Tribunal did not make specific findings as to whether the appellant was tortured, forced to declare separation from Falun Gong, or made to report to the police every week. It was unnecessary for the Tribunal to do so, however, because, on the basis of the inconsistencies and gaps in her evidence, it rejected her claim to have been arrested and detained because she was a Falun Gong practitioner. It followed that it did not accept her claims as put. The first of the appellant’s grounds of appeal does not disclose reviewable error.
12 The appellant’s second contention apparently asserts a failure to comply with s 424A of the Migration Act 1958 (Cth). This was not apparently raised before the Federal Magistrate but the first respondent did not take this point. Instead, counsel for the first respondent addressed the substance of the submission.
13 The appellant apparently asserts in her draft notice of appeal that the Tribunal was required to provide her with a letter (under s 424A(1)) setting out details of the information provided by her earlier that the Tribunal said was inconsistent with her oral evidence. The Tribunal did not rely on any information that was caught by s 424A(1), however. That is, it did not base its finding that the appellant was not a reliable witness on inconsistent evidence that had been provided to the Department prior to the hearing. This finding and the Tribunal’s ultimate decision arose out the appellant’s lack of knowledge of Falun Gong, a lack of knowledge that the appellant demonstrated at the hearing. It was because of the appellant’s lack of knowledge of Falun Gong that the Tribunal rejected her claims that she was a Falun Gong practitioner and detained in China on this account. Because the Tribunal did not accept her claims in this regard, the Tribunal could not be satisfied that she was a person to whom Australia owed protection obligations under the Convention. That is, the Tribunal’s determination was based on inconsistencies in the evidence before it and not on ‘information’ within s 424A(1).
14 The appellant referred in her draft notice of appeal to her "oral evidence as to employment, [marital] status and place of residence", but none of this evidence, or any supposed inconsistencies with respect to this evidence, constituted the reason, or part of the reason, for the decision. Hence, no obligation under s 424A(1) arose with respect to it.
15 There is a brief mention of matters such as employment, marital status and place of residence towards the end of the Tribunal’s reasons, where, as previously noted, the Tribunal observed that the appellant claimed that she did not want to return to China because she had no house, no money and no husband there. It is clear from the context, however, that this observation did not form the reason, or part of the reason, for the decision. In any event, it is also clear from the context that the appellant gave the relevant evidence at the Tribunal hearing and that no obligation under s 424A(1) arose with respect to it.
16 I also accept the first respondent’s submission that the country information on which the Tribunal relied fell within the exception in s 424A(3)(a).
17 The appeal should be dismissed. There is no appealable error in the Federal Magistrate’s decision. There are no jurisdictional errors of the kind alleged in the decision of the Tribunal.
Associate:
Dated: 20
February 2007
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Counsel for the First Respondent:
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Solicitors for the First Respondent:
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Date of Hearing:
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Date of Judgment:
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