SZJSQ v Minister for Immigration and Citizenship [2007] FCA 729 (15 May 2007)

Migration Act 1958 (Cth)

SZJSQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL
NSD 497 OF 2007

DOWNES J
15 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 497 OF 2007

BETWEEN:	SZJSQ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	15 MAY 2007
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 497 OF 2007

BETWEEN:	SZJSQ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWNES J
DATE:	15 MAY 2007
PLACE:	SYDNEY

1 The appellant is from the People’s Republic of China. He is aged 47 years. He arrived in Australia in February 2006. He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the ground of his membership of, or participation in, Falun Gong. His application was refused on 27 May 2006 and that decision was affirmed by the Refugee Review Tribunal on 29 September 2006. The appellant appealed to the Federal Magistrates Court. His application was dismissed on 7 March 2007. He appeals to this court against that decision.

2 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts.

3 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court. The appeal is, however, confined to an error of law amounting to jurisdictional error.

4 Behind every application for a protection visa lies a factual basis. The factual basis in the present case is that the appellant claimed to fear persecution by Chinese authorities because of his involvement in Falun Gong. The appellant claimed that he had been practising Falun Gong in a public place without incident from 2003 until he was detained for one to two days in December 2005. He did not continue practising Falun Gong when he moved to Australia because his priority was obtaining employment.

5 The Refugee Review Tribunal, constituted by Ms Kerry-Anne Hartman, did not accept that the appellant was a Falun Gong practitioner or that he was detained in China. The Tribunal found that the appellant was not a credible or truthful witness because his evidence at the hearing indicated a lack of knowledge of Falun Gong’s principles and practice, including the name of Li Hongzhi’s book "Zhuan Falun", the location and behaviour of the "Falun", the cultivation of "Xinxing" and the name and description of the five Falun Gong meditation exercises. There were inconsistencies between the appellant’s evidence in his application for a protection visa and his evidence at the hearing. The Tribunal also found that the appellant’s evidence regarding his public practice of Falun Gong as part of a group of 20-50 people and his short-term detention were implausible in light of independent country information. The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

6 The reality of this case is that the appellant has lost it on the facts. However, the only appeal relates to the law. Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts. This raises problems for the many appellants who are in a similar position to the present appellant. However, if there is a relevant error of law an appeal will be successful. Accordingly, I now turn to that question.

7 The notice of appeal contains one ground. It is an allegation of jurisdictional error by taking into account irrelevant information. The appellant asserts that the fact that he had not practiced Falun Gong in Australia is irrelevant to his fear of persecution flowing from his previous practice of Falun Gong in China. This ground was also agitated in the court below. Scarlett FM held that it was open to the Tribunal to have regard to this evidence to assess whether there was a real chance the applicant would face persecution if returned to China. The Tribunal’s reliance on this information must not be overstated. The Tribunal had already made a principal finding that it was not satisfied that the appellant was a Falun Gong practitioner in China. That was based on a number of reasons, none of which related to whether or not the appellant practiced Falun Gong in Australia. The Tribunal said: "The Tribunal is of the view that the applicant has fabricated these claims in order to bring itself within the definition of a refugee". The Tribunal then added that, because the appellant had not practiced in Australia, "[it] does not accept that there is a real chance that he will practice Falun Gong if he returns to China now or in the reasonably foreseeable future". This finding of the Tribunal, while possibly extraneous, does not invalidate the principal finding in any way. The appellant has not put any written reasons and, when called upon to do so, he declined to put any oral submissions.

8 I have read the reasons of the Refugee Review Tribunal and the reasons for judgment of Scarlett FM. I can find no error of law in either decision. It follows that the appeal must be dismissed and will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes

Counsel for the Appellant:	The Appellant appeared in person with the assistance of a Cantonese interpreter

Counsel for the First Respondent:	L Clegg

Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	15 May 2007

Date of Judgment:	15 May 2007

Federal Court of Australia

SZJSQ v Minister for Immigration and Citizenship [2007] FCA 729 (15 May 2007)