SZKRB v Minister for Immigration and Citizenship [2008] FCA 189 (29 February 2008)

Last Updated: 3 March 2008

FEDERAL COURT OF AUSTRALIA

SZKRB v Minister for Immigration and Citizenship [2008] FCA 189

SZKRB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2113 OF 2007

SIOPIS J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2113 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SIOPIS J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1 The appeal is dismissed.

2 The appellant pay the first respondent’s costs in the sum of $1,200.00.

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 2113 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SIOPIS J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of the People’s Republic of China (China), who arrived in Australia on 30 September 2006. On 4 October 2006, the appellant lodged an application for a protection visa.

2 In her application for a protection visa, the appellant claimed to have a well-founded fear of persecution due to her practise of Falun Gong. The appellant claimed that she began practising Falun Gong in 1998 after her mother told her about it. In 2000, her mother, who was an active member of Falun Gong, was arrested and jailed for one year and tortured. Before her mother was arrested in 2000 the appellant was detained and questioned, and beaten. After the appellant’s mother was released, the police came to their home periodically to check on them and the appellant was "required to have brain washing" by the police on several occasions.

3 A delegate of the first respondent refused the application for a protection visa on 6 December 2006.

The Tribunal’s decision

4 On 29 December 2006, the appellant applied to the Tribunal for a review of that decision.

5 The Tribunal was not satisfied the appellant was a credible witness due to her lack of knowledge of Falun Gong and her lack of interest in practising Falun Gong since coming to Australia. The Tribunal, therefore, found that the appellant and her mother did not practise Falun Gong, or suffer any resulting persecution. The Tribunal did not accept that if the appellant returned to China there was a real chance that she would be persecuted for any Convention reason.

The Federal Magistrates Court

6 On 22 May 2007, the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant claimed that the Tribunal was biased "and made a decision...based on some hearsay independent information".

7 The appellant also claimed that the Tribunal had contravened s 424A of the Migration Act 1958 (Cth) (the Act); and failed to consider the claims of the appellant.

8 The Federal Magistrate found that there was a lack of evidence supporting the allegation of bias and that there was nothing in the Tribunal’s decision which indicated bias. As to the independent country information, the Federal Magistrate found that, although this allegation was not particularised, it probably referred to the information about departure checks in China which was referred to by the Tribunal. The Federal Magistrate went on to say that the Tribunal was "entitled to inform itself as it sees fit" and that, in any event, this information was not the reason for the Tribunal’s decision. The decision of the Tribunal was based on its view as to the appellant’s belief in, and knowledge of, Falun Gong.

9 The Federal Magistrate found that there was no contravention of s 424A of the Act as the Tribunal’s decision was based on information provided by the appellant which was exempt under s 424A(3)(b) of the Act, and the Tribunal’s thought processes, which did not constitute "information" under s 424A of the Act.

10 In relation to the final ground of review, the Federal Magistrate noted that the ground was not particularised, but he found that it appeared from the Tribunal’s reasons that all claims were considered by the Tribunal.

11 The Federal Magistrate went on to consider two more contentions. The Federal Magistrate found there was no failure to make a decision in accordance with the legislation. The Federal Magistrate also rejected a contention that the appellant’s application was refused by the Tribunal "without evidence". The Federal Magistrate found that this contention misconceived the role of the Tribunal. The Federal Magistrate stated that the Tribunal did not need contradictory evidence to make its decision. It was for the appellant to put evidence before the Tribunal, so that it could be satisfied as to her claims.

The appeal

12 In the notice of appeal filed on 25 October 2007 in this Court, the appellant contended that the Tribunal based its decision on assumption rather than evidence, and failed to consider the application in accordance with s 91R of the Act. Secondly, it is said that the Tribunal contravened s 424A of the Act; and, thirdly, that it failed to assess the chance of the appellant’s persecution on return to China because of her practise of Falun Gong. Before me, in oral submissions, the appellant also added the ground that the Tribunal had been biased.

13 I have treated the grounds of appeal as contentions that the Federal Magistrate erred in failing to make the findings set out in the grounds of appeal.

14 As to the first ground of appeal, the complaint amounts in essence to an attack on the fact-finding process of the Tribunal. The Tribunal was not required uncritically to accept the evidence that the appellant placed before the Tribunal. The Tribunal was entitled to question the appellant and make credibility findings as part of the fact-finding process. This is what the Tribunal did in this case. It heard the evidence of the appellant and asked the appellant questions to test the appellant’s knowledge of, and commitment to, the practise of Falun Gong. The Tribunal put to the appellant its concerns as to the deficiencies in her knowledge of, and commitment to, Falun Gong. On the basis of the answers given by the appellant the Tribunal took an adverse view of the appellant’s credibility. It was on the basis of this adverse view of the appellant’s credibility that the Tribunal rejected the appellant’s claim that she and her mother were Falun Gong practitioners and had suffered persecution on that basis in China. It was open to the Tribunal to come to this view. There was no jurisdictional error. Nor did the Tribunal misapply the law in finding that the appellant did not entertain a well-founded fear of persecution if she was to return to China on the basis of her or her mother’s real or perceived involvement in Falun Gong. Section 91R of the Act was not engaged because the Tribunal found the appellant was not a Falun Gong practitioner. Accordingly, the Tribunal did not err in finding that there was no jurisdictional error. The first ground of appeal is, therefore, dismissed.

15 As to the second ground of appeal, the Federal Magistrate did not, for the reasons that he gave, err in finding that the Tribunal did not contravene s 424A of the Act. Further, insofar as the Tribunal relied on independent information, such information fell within s 424(3)(a) of the Act and was so excluded from the operation of s 424A(1) of the Act.

16 As to the third ground of appeal, the Federal Magistrate did not err in finding that the Tribunal assessed the claim of the appellant. This is evident from an examination of the reasons of the Tribunal. The Tribunal recognised the appellant’s claim as being one that she feared persecution by reason of her and her mother’s involvement in Falun Gong. It recognised that the appellant claimed that she and her mother had been subject to persecution in China on the basis of their religion. However, the Tribunal, as it was entitled to do, rejected the appellant’s claim on credibility grounds. This ground of appeal is dismissed.

17 As to the ground of bias raised during oral argument, the Federal Magistrate did not err in rejecting the appellant’s ground of review founded on bias. There was no extraneous evidence demonstrating any bias on the part of the Tribunal. Nor does it emerge from the reasons of the Tribunal that the Tribunal was biased, either actually or ostensibly. The Tribunal dismissed the appellant’s claim because of the adverse view that it came to as to the appellant’s credibility. It explained its reasons for doing so and gave the appellant an opportunity during the hearing to refute that view. This ground of appeal is also dismissed.

18

The appeal is dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 29 February 2008

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the First Respondent:	Ms E Knight
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 2008
Date of Judgment:	29 February 2008