SZJRK v Minister for Immigration and Citizenship [2008] FCA 154 (20 February 2008)

Last Updated: 28 February 2008

FEDERAL COURT OF AUSTRALIA

SZJRK v Minister for Immigration and Citizenship [2008] FCA 154

SZJRK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2027 OF 2007

STONE J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2027 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJRK 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 $2,500.

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 2027 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJRK 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 The appellant is a citizen of the People’s Republic of China who arrived in Australia on 24 February 2006.  On 3 March 2006 the appellant lodged an application for a protection visa.  The application was refused by a delegate of the first respondent and later by the Refugee Review Tribunal.  An application for review was dismissed by a Federal Magistrate on 26 September 2007; [2007] FMCA 1746.  The appellant now appeals from his Honour’s decision.  

2 The appellant claimed to have a well-founded fear of persecution as a practitioner of Falun Gong. The basis of his claims may be summarised briefly. He claimed that his wife was an active leader of Falun Gong who organised people to come to their house for meetings. In 1999, following the Chinese crackdown on the practice of Falun Gong, the police raided his home and took away his books but made no arrests. Some time later, the police came back and arrested his wife and sent her to a re-education camp for a year. As a result of her detention his wife became mentally ill and she still suffers from this illness. The appellant claimed the police continued to supervise him by visiting his house annually and searching for books. He claimed to have been informed by friends in November 2005 that he and his wife were to be targeted for their activities by police and arranged to leave for Australia with the assistance of a friend. He entered Australia on 24 February 2006 on a tourist visa that was issued in Shanghai on 15 February 2006.

3 The Tribunal was not satisfied that any of the appellant’s claims were true. The Tribunal found that the appellant’s knowledge of Falun Gong was limited and that he had shown little interest in practising Falun Gong in the six months he had been in Australia (whereas a genuine Falun Gong practitioner might reasonably have been expected to do so). The Tribunal was not satisfied that the appellant had practised Falun Gong in the past or that he would do so in the future. As the first respondent said in its written submissions:

The Tribunal assessed all the evidence before it and found that the appellant had only a "cursory familiarity with the Falun Gong movement". It based this finding on the appellant’s demonstrated limited knowledge of Falun Gong concepts, its symbols and seminal texts and its spiritual aspects and, in particular, the manner in which he answered the Tribunal’s questions about Falun Gong by necessarily and repeatedly referring to his handwritten notes for assistance in answering questions. On this basis, the Tribunal was not satisfied that any of the appellant’s claims, including those relating to his wife’s former involvement with Falun Gong, were true.

4 On 14 November 2006 the appellant sought judicial review of the Tribunal’s decision. Before the Federal Magistrate, the appellant contended (1) that the Tribunal relied on irrelevant material, namely the "Country Information" which was out of date and/or based on hearsay; (2) that it failed to carry out its statutory duty under s 424A of the Migration Act 1958 (Cth); (3) that its decision was based on irrational and illogical reasoning; and (4) that the Tribunal was biased and had failed to consider the appellant’s claims according to s 91R of the Act.

5 The Federal Magistrate could find no evidence to substantiate the allegation of bias. In relation to the claim that the Tribunal based its assessment on assumptions, the Federal Magistrate found that the Tribunal’s decision was clearly based upon a failure to be satisfied that the appellant was a Falun Gong practitioner on the basis that he had been unable to show the Tribunal that he understood very much about the organisation and its method. His Honour found the Tribunal had considered the appellant’s evidence and had not referred to irrelevant material. Furthermore, there was no breach of s 424A of the Act as the Tribunal did not need to inform the appellant of its subjective appraisals, thought processes or determinations. Accordingly, his Honour found that there was no jurisdictional error discernable in the Tribunal’s decision and the application was dismissed.

6 On 11 October 2007 the appellant filed a Notice of Appeal in this Court setting out the first three grounds of appeal that had been pleaded before the Federal Magistrate. The claims the appellant made in his oral submissions included that the Tribunal was biased, did not consider the matter carefully, made its decision on assumptions rather than on the evidence presented by the applicant and did not follow proper procedure.

7 The Federal Magistrate’s careful discussion of the issues and detailed reasons for his decision relieve me of the burden of discussing these grounds in detail. In respect of the first ground, the appellant was unable to point to the country information he contended was out of date and/or based on hearsay, nor did he provide any other information of that nature. In any event, I accept the submission of the first respondent that "the choice and assessment of country information is a factual matter for the Tribunal, and the Tribunal was not obliged to inquire into more recent country information than was before it" and so this ground must fail.

8 The contention that the Tribunal failed to carry out its statutory duty under s 424A of the Act must also fail. The appellant has not provided any particulars of the Tribunal’s alleged failure to comply with s 424A. I am satisfied from my reading of the Tribunal’s decision that there is no information relied upon which would enliven the operation of s 424A and I agree with the Federal Magistrate that the assertion that the Tribunal referred to irrelevant material cannot be sustained in light of the grounds and reasons for the decision.

9 The third ground of appeal, which alleges that the Tribunal’s decision was based on irrational and illogical reasoning is similarly without foundation. The Tribunal, having been unable to accept the veracity of the appellant’s claims that he was a Falun Gong practitioner, found that he did not hold a well-founded fear of persecution for a Convention-related reason. This finding was open to the Tribunal to make and I can detect no reviewable error in it.

10 For these reasons the appeal must be dismissed with costs which will be fixed in the amount of $2,500.

I certify that the preceding ten (10) 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