SZKIP v Minister for Immigration and Citizenship [2008] FCA 95 (18 February 2008)

Last Updated: 20 February 2008

FEDERAL COURT OF AUSTRALIA

SZKIP v Minister for Immigration and Citizenship [2008] FCA 95

SZKIP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1970 OF 2007

COWDROY J
18 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1970 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE OF ORDER:	18 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Appellant pay the costs of the First Respondent in the amount of $1,700 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.

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 1970 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKIP Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	COWDROY J
DATE:	18 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of Federal Magistrate Scarlett of 13 September 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 15 February 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse the grant of a protection visa to the appellant.

BACKGROUND

2 The appellant is a citizen of the People’s Republic of China who arrived in Australia on 7 July 2006. On 12 July 2006 the appellant lodged an application for a protection visa and that application was refused on 3 August 2006. On 23 October 2007 the appellant applied to the Tribunal for a review of that decision.

3 The appellant claimed to have well-founded fear of persecution as a Falun Gong practitioner. He claimed he was introduced to Falun Gong in May 1999. Central to his claims was an arrest by the police in July 2002 where he was detained for one month and mistreated. He claimed he was released after his family paid a fine and after he had signed a statement that he would not practise Falun Gong anymore. He asserted that soon after his release he was dismissed from his employment as his employers knew he was a Falun Gong practitioner and did not want trouble from the local police. The appellant claimed he practised Falun Gong covertly and was worried about his safety.

THE DECISION OF THE TRIBUNAL

4 The appellant attended a hearing before the Tribunal on 28 November 2006 and gave oral evidence with the assistance of an interpreter in the Mandarin language. Amongst other things, the Tribunal tested the appellant on his claims, including questioning him on his knowledge of Falun Gong.

5 The Tribunal found the appellant was not a witness of truth and that his claim of fear of further harassment by the police was a fabrication. The Tribunal found inconsistencies in his claims, documentation and evidence.

6 The Tribunal was satisfied on the evidence given at hearing that the appellant knew a reasonable amount about the practice of Falun Gong exercises. However, it noted that the information provided by the appellant was readily available. The Tribunal was of the view that the mere fact a person knows a reasonable amount about a particular issue would not without more be capable of satisfying the Tribunal that the appellant was a genuine Falun Gong practitioner. On the basis of the information before it, the Tribunal found that the appellant had never been a genuine Falun Gong practitioner.

7 The Tribunal considered the claim that the appellant practised Falun Gong in Australia, but in light of its initial finding that he was not a witness of truth, the Tribunal was not satisfied he engaged in that conduct otherwise than for the purpose of strengthening his claim as a refugee. Consequently, the Tribunal disregarded the appellant’s conduct in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’).

8 The Tribunal considered the claim that the appellant wished to return to China in ‘a couple of years’ which led the Tribunal to doubt the appellant had a subjective fear of harm.

9 The Tribunal found none of the appellant’s material claims to invoke refugee protection to be true. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason and affirmed the delegate’s decision

APPLICATION IN THE FEDERAL MAGISTRATES COURT

10 By application filed on 13 March 2007 the appellant sought to review the Tribunal’s decision in the Federal Magistrates Court. The appellant sought to challenge the Tribunal’s finding that it was not satisfied the appellant had a well-founded fear of persecution and contended that the Tribunal erred in disregarding the appellant’s relevant conduct according to s 91R of the Act.

11 The Federal Magistrate was of the view that there was no jurisdictional error. His Honour noted that the Tribunal’s adverse findings to the appellant’s claim did not in itself establish that the Tribunal’s mechanism of review was unjust or unfair. In relation to the grounds regarding s 91R of the Act, the Federal Magistrate found the Tribunal properly had consideration to s 91R(3) in relation to the appellant’s conduct in Australia because it had not been satisfied that the appellant had engaged in the conduct otherwise than for the purpose of strengthening his claim as a refugee. His Honour found there was no breach of ss 424A and 425 of the Act. The Federal Magistrate was unable to discern any jurisdictional error and dismissed the application.

APPEAL TO THIS COURT

12 On 2 October 2007 the appellant sought to appeal the decision of the Federal Magistrate by filing a notice of appeal which raised the following two grounds:

1. The Federal Magistrate erred in finding that there was no jurisdictional error.

2. The Federal Magistrate erred in finding the Court had no jurisdiction to interfere in the case pursuant to the Act.

13 At the hearing of the appeal before me the appellant appeared with the assistance of an interpreter. The appellant submitted that the Federal Magistrate did not deal with his case fairly. He said that he was not healthy at that time and asked for an adjournment. However, he was not able to recall whether he made that application before the Tribunal or before the Federal Magistrate.

14 With regard to the second ground contained in the notice of appeal the appellant claimed that he was discriminated against. He said that he was unable to express himself and unable to tell the Federal Magistrate what had happened to him in the Republic of China. Accordingly, the decision was unfair.

15 As to the claim that the appellant was treated unfairly, his assertion does not establish that there is jurisdictional error. In substance the appellant seeks to challenge the merits of the Tribunal’s finding which is not the subject of judicial review by this Court: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; and Minister for Aboriginal Affairs Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40-42.

16 It follows that ground one has no substance and must be rejected.

17 As to the appellant’s claim that he was discriminated against, there is no evidence to support his allegation. The Tribunal considered the appellant’s claims in order to determine whether he had a well-founded fear of persecution for a Convention reason and did so in accordance with s 91R(3) of the Act. Such section required the Tribunal to disregard any conduct engaged in by a person in Australia unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

18 The Tribunal acknowledged that the appellant had continued to practise Falun Gong since his arrival in Australia in 2006 but in view of the adverse credibility finding was satisfied that such practice was conducted for the purpose of strengthening his claim as a refugee.

19 No matter has been advanced which establishes any jurisdictional error on the part of the Tribunal. The Court has considered the whole of the decision of the learned Federal Magistrate in view of the fact that the appellant is not legally represented. It is not able to discern any error in his Honour’s findings. For this reason the appeal must be dismissed.

COSTS

20 The Minister seeks costs in the amount of $1,700. The court will make an order for such sum pursuant to O 62 r 4(2)(c) of the Federal Court Rules in respect of such amount.

I certify that the preceding Twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 18 February 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Appellant:
Counsel for the Respondent:
Solicitor for the Respondent:	Brendan O'Brien
Date of Hearing:	18 February 2008
Date of Judgment:	18 February 2008