SZFUF v Minister for Immigration & Citizenship [2007] FCA 949 (7 May 2007)

SZFUF & ORS v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR

NSD313 OF 2007

EMMETT J
7 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD313 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFUF First Appellant SZHXX Second Appellant SZHXY Third Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	7 MAY 2007
WHERE MADE:	SYDNEY

1. The name of the First Respondent be changed to Minister for Immigration and Citizenship.

3. The adult Appellants pay the First Respondent’s costs in the sum of $2,900.

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	NSD313 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFUF First Appellant SZHXX Second Appellant SZHXY Third Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE:	7 MAY 2007
PLACE:	SYDNEY

1 The appellants are husband, wife and daughter. They are citizens of the Peoples Republic of China, and arrived in Australia on 13 March 2004. On 9 June 2004, they lodged an application for protection (Class XA) visas under the Migration Act 1958 (Cth) (the Act). On 16 June 2004, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), then known as the Minister for Immigration and Multicultural and Indigenous Affairs, refused to grant visas. On 15 July 2004, the appellants applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the Delegate’s decision.

2 A decision made by the Tribunal was subsequently set aside by consent by the Federal Magistrates Court on 7 July 2005. On 10 November 2005, the Tribunal again affirmed the decision not to grant protection visas. The appellants thereupon commenced a proceeding in the Federal Magistrates Court by filing an application on 21 December 2005, having been notified of the Tribunal’s decision on 1 December 2005. An amended application was filed in the Federal Magistrates Court on 24 April 2006. On 13 February 2007, the Federal Magistrates Court ordered that the application be dismissed and that the first applicant pay the Minister’s costs of the proceeding. By notice of appeal filed on 5 March 2007, the appellants have now appealed from the orders of the Federal Magistrates Court to the Federal Court of Australia.

3 The appellants have no legal representation. The first appellant appeared in person with the assistance of an interpreter on the hearing of the appeal. He made no effort to identify any jurisdictional error on the part of the Tribunal that would have justified any interference by the Federal Magistrates Court. Nevertheless, I shall say something about the claims made in the Federal Magistrates Court and in the notice of appeal. Only the first appellant made specific claims under the Refugees Convention, his wife and daughter relying on their membership of his family. It is convenient, therefore, to refer to him as the appellant.

4 The appellant is married with a daughter who was aged eight years at the time of the Tribunal’s decision. He has previously worked in South Africa as an agricultural technician from 1998 until 2004. During that time, he made a number of return visits to China. He left South Africa on 4 March 2004. He returned briefly to China with his wife and daughter, and they departed China on 12 March 2004.

5 In his protection visa application, the appellant claimed to be entitled to a protection visa because he faces a risk of being jailed in China as a Falun Gong member. When asked by the Tribunal what it was he feared if he returns to China, the appellant stated that, every time he returns to China, he is told to discontinue practising Falun Gong.

6 The appellant claimed that, when he lived in South Africa, he practised Falun Gong in private. He told the Tribunal that he travelled to South Africa to study English in February 1998, and returned to China in June 2001 where he stayed for five months. In November 2001, he again travelled to South Africa and stayed there until February 2003. He returned to South Africa in May 2003 where he stayed until March 2004.

7 When asked by the Tribunal when he first experienced difficulties from Chinese authorities, the appellant said that, around August or September 1999, his wife told him she was scared because people were asking where he was. However, when he returned to China in May or June 2001, he was not arrested or detained.

8 The Tribunal treated the appellant’s claims on the basis of his assertion that, if he returned to China, he would face persecution for reasons of his practice of Falun Gong. However, the Tribunal did not find the appellant to be credible on some key aspects of his claims. The Tribunal outlined several matters that led it to conclude that the appellant is not a reliable witness in relation to certain aspects of his claims.

9 The Tribunal referred to the appellant’s evidence that, in August or September 1999, his wife told him the police were asking where he was and that she was frightened. However, the appellant was neither arrested nor detained when he returned from China in May/June 2001. While the appellant claimed that the local public security bureau questioned him, during that visit to China, about the distribution of Falun Gong leaflets in South Africa, he apparently had no difficulty in departing China when he returned to South Africa in November 2001. The Tribunal was not satisfied that, had the appellant been of adverse interest to the authorities in China, he would not have been arrested or detained. More importantly, the Tribunal was not satisfied that, had he been of adverse interest to the authorities, he would have been able to depart China without difficulty at that time.

10 The Tribunal referred to the appellant’s claim that, in March 2003, the Public Security Bureau Chief, accompanied by other policemen, went to his home and asked if he was again publicising Falun Gong. He claimed that the police found Falun Gong material in his home. Nevertheless, he was not arrested or charged by reason of his possession of such material. The Tribunal did not accept that the authorities would not have dealt more harshly with him had they found the materials as he alleged. The Tribunal was, therefore, not satisfied that the appellant was in possession of Falun Gong material at that time.

11 The appellant also claimed that, in April 2003, police again attended his home where he admitted to the police that he was practising Falun Gong. He told the Tribunal that he went to the police station at that time to explain why he was practising with some people. The Tribunal did not accept that the police would have been so lenient with the appellant, particularly in the light of his evidence that he had already come to their attention previously in relation to Falun Gong. The Tribunal was not satisfied that the appellant was detained by the police in April 2003 as he claimed.

12 The appellant also claimed that, in March 2004, police again visited his home in China and found material relating to Falun Gong activities. The appellant claimed that the police did not arrest him, even though they had located that material. The Tribunal was not satisfied that, had the police located such material, they would not have arrested and detained him. The Tribunal was not satisfied that the appellant was of adverse interest to the Chinese authorities in March 2004. It was not satisfied that, had he been of adverse interest, he would have been allowed to depart China unhindered, as he did, in order to travel to Australia in March 2004.

13 In all of those circumstances, the Tribunal was not satisfied that the appellant is a Falun Gong practitioner or has been practising Falun Gong since 1995 as he asserted. The Tribunal was supported in that finding by the appellant’s lack of knowledge relating to the philosophy, preparation and thinking behind Falun Gong, which was evident when the appellant was questioned about a particular exercise during the Tribunal hearing. The finding was also supported by the appellant’s lack of knowledge relating to the beliefs of Master Li. The appellant initially stated that he had read Master Li’s book. However, after questioning about a particular belief held by Master Li, the appellant’s explanation for his inability to provide evidence about that matter was because he had not read the book for quite some time.

14 The Tribunal considered that the appellant’s ability to travel unhindered in and out of China on three separate occasions since 2001 suggests that he is not of any adverse interest to the Chinese authorities. The Tribunal rejected the appellant’s claims, therefore, that he would suffer persecution if he returns to China because of his practice of Falun Gong.

15 In his amended application to the Federal Magistrates Court, the appellant specified a number of grounds as follows:

17 It is clear that there is no substance in the grounds, all of which appear to be an invitation to the Federal Magistrates Court to reconsider the appellant’s claims on the merits. The failure to provide notice in relation to independent country information is dealt with expressly in s 424A. The primary judge considered the grounds outlined in the amended application, and gave reasons for rejecting each of the grounds.

18 In the notice of appeal, the grounds are that the Tribunal breached s 424A of the Act by failing to invite the appellant to comment on information that is relevant to his application and that the Federal Magistrates Court erred in finding that the Tribunal’s failure to serve country information did not breach s 424A. The notice of appeal also appears to point to a ground that the Federal Magistrates Court failed to examine whether there was information other than the country information that the Tribunal failed to serve on the appellant and to invite him to comment on.

19 As I have said, the appellant did not seek to make any submissions in support of the grounds. There was no apparent error on the part of the Federal Magistrates Court in dealing with the grounds raised in the amended application to that Court. There does not appear to me to be any error apparent on the face of the reasons of the Tribunal. It follows that the appeal should be dismissed.

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

The Appellant appeared in person.

Counsel for the Respondent:	Ms T Wong

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	7 May 2007

Date of Judgment:	7 May 2007