SZKCD v Minister for Immigration and Citizenship [2008] FCA 96 (18 February 2008)

Last Updated: 20 February 2008

FEDERAL COURT OF AUSTRALIA

SZKCD v Minister for Immigration and Citizenship [2008] FCA 96

SZKCD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1829 OF 2007

COLLIER J
18 FEBRUARY 2008
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1829 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE OF ORDER:	18 FEBRUARY 2008
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs, to be taxed if not otherwise agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1829 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE:	18 FEBRUARY 2008
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1 This is an appeal against the decision of Nicholls FM delivered 24 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant 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 21 September 2006. On 28 September 2006 the appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs. A delegate of the first respondent refused the application for a protection visa on 19 October 2006. On 23 November 2006 the appellant applied to the Tribunal for a review of that decision.

3 The appellant claimed to have well-founded fear of persecution on the basis of his practice of Falun Gong or of his distribution of Falun Gong material. He claimed that he was arrested, and that police searched his house resulting in the discovery of Falun Gong material. As a result, he was jailed for six months during which time he claimed he was treated inhumanely. He also claimed that after his release he was monitored and was required to report to the police. The appellant claimed that such actions reminded him of the discrimination he suffered during the Cultural Revolution, when his father died. The appellant claimed further that in 2003 he obtained a passport, and that in 2006 he left China to come to Australia.

Proceedings before the Tribunal

4 The Tribunal was not satisfied that the appellant was a credible witness due to his lack of knowledge of Falun Gong. The Tribunal found he did not practise Falun Gong, or distribute Falun Gong material, or suffer any resulting persecution. The Tribunal found that the only purpose of the appellant’s participation in a protest in Australia was to strengthen his refugee application. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

Application for judicial review before the Federal Magistrates Court

5 On 29 January 2007 the appellant filed an application for judicial review of the Tribunal’s decision. In his application the appellant claimed:

"I am a Falun Gong follower.

I will face a real chance of persecution if I return to the PRC."

6 His Honour found that the Tribunal’s findings were open to it on the evidence before it and were based on a rational assessment of the appellant’s claims. His Honour therefore could find no jurisdictional error, and dismissed the application.

7 In relation to the Tribunal’s finding as to the appellant’s conduct in Australia, the Federal Magistrate stated the following (at [21]):

In relation to the applicant’s claim that he had attended a demonstration after arrival in Australia, having found that the applicant was not a Falun Gong practitioner or follower, then it was plainly open to the Tribunal to find that he had not attended the demonstration in that capacity, and in any event, it was also open to the Tribunal to find that the applicant was attending the demonstration otherwise than for the purpose of strengthening his refugee application. I saw this finding as being with reference to s.91R(3) of the Act.

8 The Federal Magistrate was of the view the Tribunal had complied with all of its statutory obligations, and found there was nothing before him which established that the relief sought should be granted. His Honour accordingly dismissed the application.

Appeal to this Court

9 By Notice of Appeal filed on 10 September 2007, the appellant sought to appeal the Federal Magistrate’s decision on the following grounds:

• "that the Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided"

• "I will face a real chance of persecution if I return to the PRC now, or in the foreseeable future"

• "there was no evidence or (sic) the other materials to justify the making of the decision".

10 An affidavit filed on the same day by the appellant is as follows:

"1. I am a citizen of the People’s Republic of China. I arrived in Australia on 21 September 2006 and lodged an application on 28 September 2006. On 19 October 2006 a delegate of the Minister refused to grant ‘the Applicant a protection visa.’ On 20 December 2006, I attened (sic) a hearing. I am a Falun Gong practitioner and had come to know about Falun Gong at some time during the early 1990’s In 1999, Falung Gong was banned I did my practicing Falung Gong to went (sic) underground. I was arrested in January 2000. I was imprisoned for six months. Thereafter, the authorities kept me under surveillance.

2. Since I arrived in Australia I attended Falun Gong activities and demonstration.

3. Member of the Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided.

"The Tribunal did not accept the Applicant’s claims" is being bias (sic).

That appraisal as to my credit was based on the following:

"(a) the Applicant had no understanding of the Falung Gong exercise."

"(b) the Applicant was not aware of when in 1999 Falung gong (sic) was banned."

11 The first ground of appeal was not raised before the Federal Magistrate, however I granted leave for that ground to be raised on appeal, and Ms Kaur-Bains for the first respondent indicated at the hearing that she was in a position to meet it.

12 The appellant in oral submissions claimed that the Tribunal did not have a proper understanding of Falun Gong, in that the Tribunal emphasised the physical exercise aspects of Falun Gong rather than the spiritual aspects. This was relevant to the first ground of appeal. Other than this statement, however, the appellant made no submissions in support of his appeal.

13 The written submissions of the first respondent were, in summary:

• the Tribunal clearly understood the appellant’s central claim of a fear of persecution arising from his claimed participation in Falun Gong activities and because he spread material about Falun Gong, however the Tribunal did not accept the appellant’s claims because it found that he was not a credible witness

• whether the appellant would face a real chance of persecution if he were to return to China now or in the foreseeable future is a question of fact for the Tribunal, and no jurisdictional error in the Tribunal’s decision has been demonstrated

• with respect to the appellant’s claim that there was no evidence to justify the making of the decision, the learned Federal Magistrate found that the Tribunal decision record revealed that the Tribunal did have regard to the material the appellant had put before it, as well as independent country information.

14 At the hearing Ms Kaur-Bains addressed those written submissions, and directed me to relevant parts of the Decision Record of the Tribunal, and to his Honour's decision, in support of those submissions.

15 In my opinion, there is no substance to the grounds of appeal before me. Questions of credibility are, as found by his Honour, questions of fact, and the weight given by the Tribunal to evidence before it, both oral and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. Further, the Tribunal’s detailed consideration of the appellant’s case and such evidence as was before it, as evidenced by the Decision Record, contradicts the appellant’s claims that there was no evidence to justify the Tribunal’s decision and that the Tribunal failed to understand his case. It is clear that the Tribunal carefully considered the appellant’s claims and the evidence before it. It is also clear that his Honour carefully considered the claims of the appellant before him, and the decision and reasons for decision of the Tribunal.

16 The approach of the Federal Magistrate and his Honour’s conclusion are, in my view, correct, and should not be disturbed.
THE COURT ORDERS THAT:

1. The appeal be dismissed with costs, to be taxed if not otherwise agreed.

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

Associate:

Dated: 18 February 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	S Kaur-Bains
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	18 February 2008
Date of Judgment:	18 February 2008