SZJRX v Minister for Immigration and Citizenship (includes corrigendum dated 10 March 2008) [2008] FCA 153 (20 February 2008)

Last Updated: 12 June 2009

FEDERAL COURT OF AUSTRALIA

SZJRX v Minister for Immigration and Citizenship [2008] FCA 153

CORRIGENDUM

SZJRX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2014 OF 2007

STONE J
20 FEBRUARY 2008 (CORRIGENDUM 10 MARCH 2008)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2014 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

CORRIGENDUM

1. On the cover page delete “2008” where it first occurs and insert “2007”.

2. On the order page delete “2008” where it first occurs and insert “2007”.
   
3. On the reasons for judgment page delete “2008” where it first occurs and insert “2007”.
   

Associate to Justice Stone
10 March 2008

FEDERAL COURT OF AUSTRALIA

SZJRX v Minister for Immigration and Citizenship [2008] FCA 153

SZJRX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2014 OF 2008

STONE J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2014 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

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 $2,000.
   

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 2014 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate on 24 September 2007; [2007] FMCA 1745. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal, refusing the grant of a protection visa to the appellant, who is a citizen of the People’s Republic of China. 
2. The appellant claimed to have a well-founded fear of persecution mainly because of her involvement with the Falun Gong movement. She said that she became a Falun Gong member in 1997 and helped to develop Falun Gong branches in different cities in China. She claimed to have become very important in the movement and that, after it was banned in 1999, she attended demonstrations and lobbied the government in support of the movement. She claimed that in 2001 she was detained for 48 hours after attending a demonstration.
3. She also claimed that after witnessing the suppression of the demonstrators in Tiananmen Square she began to have “rebellious thoughts” about the government and said that people in China should be able to express their thoughts and that it was unfair that China was not democratic.
4. At a hearing before the Tribunal on 21 August 2006, the appellant modified her account. When pressed to provide more specific information about Falun Gong she was unable to do so. She then said that she was not, in fact, a practitioner but had “simply supported her friends’ activities’. The Tribunal noted that when asked why the Chinese authorities would be interested in targeting her she said that they would not be interested in her but in her friends and classmates. She was also unable to give any satisfactory explanation of how she was able to leave China on a Chinese passport without difficulty.
5. Following the hearing the Tribunal sent the appellant a letter dated 23 August 2006 pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) inviting her to comment on information she had given. In that letter the Tribunal referred to the appellant’s statement that in her dealings with the Chinese Consulate in Sydney she had not experienced any difficulties. The Tribunal commented that if she feared persecution it was “unusual” that the authorities would allow her to leave the country in the first place and that they showed no interest in her when she applied to renew her passport. The Tribunal also asked the appellant to expand on her evidence concerning her arrest at a demonstration.
6. The appellant’s reply dated 13 September 2006 was brief. The substantive comments were:

The reissued one is only a travel document, it is not a passport.
I was observing a demonstration, and I was detained by the police for interrogation, that is another claim of my application.

7. Apparently, and understandably, the Tribunal did not find that these comments assisted the appellant’s claim and affirmed the decision not to grant the appellant a protection visa. In brief the Tribunal’s reasons were that it was not satisfied the appellant was a credible witness because she lacked any knowledge of Falun Gong; she admitted that the authorities would not be interested in her; and that there was a lack of evidence or explanation supporting her claims. The Tribunal therefore found the appellant was not involved in any way with Falun Gong practitioners and that she had never been arrested or detained. This and the generalised nature of her claims against the government, would not have given rise to a real chance of persecution in China now or in the reasonably foreseeable future.
8. Before the Federal Magistrate, the appellant in an amended application asserted the Tribunal relied on wrong independent country information relating to payment for her passport; made a decision that was irrational and illogical; breached s 424A of the Act; and was biased against her and failed to consider her claims in accordance with s 91R of the Act.
9. The Federal Magistrate found that claims of payment for the appellant’s passport were not before the Tribunal, and in any event, that reliance on incorrect information would be an error of fact and not a jurisdictional error. His Honour noted that the second ground contained no particulars and the reason for the Tribunal’s decision was that it was not satisfied that the appellant was a refugee. His Honour found that the s 424A letter complied with the requirements of the section. In relation to the final ground, His Honour found the allegation of bias was not made out as there were no particulars or evidence in support of the claim. The Federal Magistrate could not understand the appellant’s contention that the Tribunal failed to consider the appellant’s claims in accordance with s 91R of the Act, and the appellant was unable to assist His Honour at the hearing. His Honour therefore found no jurisdictional error and dismissed the application.
10. By Notice of Appeal filed on 9 October 2007, the appellant appeals from the decision of the Federal Magistrate. She claims that the Tribunal:

(a) relied on wrong independent country information and came to the wrong conclusion about the issuing of her passport;

(b) was biased against her application and failed to consider her claims in accordance with s 91R;

(c) did not provide her chance with adequate particulars of the independent country information; and

(d) failed to assess her chance of persecution on return to China because of her practice of Falun Gong.

11. At the hearing of the appeal the appellant was not able to make any submissions that would assist the Court. The submissions she made were directed to inviting the Court to review the Tribunal’s finding on the merits of her application which, as I explained, the Court is not entitled to do.
12. The appellant has not provided any particulars regarding the alleged inaccuracy of independent country information relied upon by the Tribunal. The Tribunal may have drawn inferences from the fact that appellant was able to leave China on a passport issued in her own name and approach the Chinese Consulate without any incident in order to have her passport renewed. In any event, this was put to the appellant in the s 424A letter. I accept the first respondent’s submission that this ground “can only be understood as an invitation to this Court to engage in impermissible merits review”.
13. An allegation of bias is very serious and it must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531. At no stage has the appellant has adduced any evidence or particulars of bias on the part of the Tribunal. Similarly, she has not provided any explanation of her claim that the Tribunal failed to consider her claims in accordance with s 91R. In any case, it is clear that the Tribunal did consider the appellant’s claim of fear of persecution. Having rejected the appellant’s claims that she was a person of interest to the Chinese authorities because of her pro-democracy beliefs and support for friends who practiced Falun Gong, the Tribunal held that she did not have a well-founded fear of persecution for a Convention-related reason.
14. The appellant has not provided any particulars regarding the alleged failure of the Tribunal to provide her with adequate particulars of the independent country information. I accept the first respondent’s submission that “This was not a case in which independent country information was central to the dismissal of the application”, and in any event, this ground must fail in light of s 424A(3)(a) of the Act.
15. There is nothing before this Court to support the claim that the Tribunal failed to assess the appellant’s chance of persecution on return to China because of her practice of Falun Gong. My summary of the Tribunal’s reasoning in [7] above is sufficient to show that the claim must fail.
16. It follows that the appeal must be dismissed with costs which should be fixed in the amount of $2000.
    

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:
Dated: 20 February 2008

Counsel for the Appellant:	The appellant appeared in person assisted by an interpreter
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 February 2008
Date of Judgment:	20 February 2008