SZOIU v Minister for Immigration and Citizenship [2011] FCA 62 (8 February 2011)

Last Updated: 10 February 2011

FEDERAL COURT OF AUSTRALIA

SZOIU v Minister for Immigration and Citizenship [2011] FCA 62

Citation:		SZOIU v Minister for Immigration and Citizenship [2011] FCA 62
Appeal from:		SZOIU v Minister for Immigration & Anor [2010] FMCA 821
Parties:		SZOIU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1501 of 2010
Judge:		COLLIER J
Date of judgment:		8 February 2011
Date of hearing:	7 February 2011
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	17
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First and Second Respondents:	Ms L Buchanan of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1501 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE OF ORDER:	8 FEBRUARY 2011
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1501 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE:	8 FEBRUARY 2011
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Smith FM delivered on 22 October 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 24 March 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship 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 23 July 2009. On 18 September 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 1 December 2009. On 23 December 2009 the appellant applied to the Tribunal for a review of that decision.
3. In his protection visa application, the appellant claimed to be in fear of religious persecution as he is a practitioner of Falun Gong. He claimed he first started practising in March 2007. He also claimed that in May 2008, he was practising with fellow practitioners when the house was invaded by police and he was arrested. He claimed he was detained for six months in a “re-education camp”, where he was insulted and tortured. He claimed that after he was released he continued to practise Falun Gong and had to regularly report to the police. He stated that because she was afraid of being associated with a Falun Gong practitioner, his wife petitioned for divorced in June 2008. The appellant stated that since arriving in Australia, he has been practising Falun Gong at home.

REFUGEE REVIEW TRIBUNAL

4. The appellant appeared before the second Tribunal on 16 February 2010 to give evidence and present arguments. After discussing the claims made by the appellant and the evidence before it, the Tribunal found it was not satisfied that the appellant was a person to whom Australia owed protection obligations.
5. The Tribunal was satisfied that the appellant was able to demonstrate some understanding and knowledge of the theory of Falun Gong and therefore accepted that he had been studying Falun Gong. However, the Tribunal noted that knowledge alone did not establish a genuine belief in Falun Gong.
6. Firstly, the Tribunal noted the concerns it had relating to the appellant’s lack of involvement in any Falun Gong activities in Australia. In this regard, the Tribunal did not accept the appellant’s explanations that he did not become involved because he did not speak English; was afraid; did not like going out; it was not necessary to practise with others or had to work. The Tribunal considered that the appellant’s reason for not publicly practising in Australia was due to the fact that he is not now, nor ever has he been, a genuine Falun Gong practitioner.
7. Furthermore, the Tribunal noted that the appellant claimed he began practising Falun Gong in March 2007, yet he was unable to provide information on key aspects of Falun Gong which it considered was commensurate with the length and regularity of his claimed practise. In particular, he was unable to recite the verses before the exercises which are integral to practising the exercises. He was also unable to indicate that Zhaun Falun comprises nine lectures, even though he claimed he has been reading the text since his arrival in Australia and also studied it in China since March 2007. Finally the Tribunal noted he was unable to perform the exercises confidently. The Tribunal also considered his explanations for not practising the exercises confidently were not plausible and also noted the inconsistent information he provided at the hearing in relation to how often he practised in Australia.
8. The Tribunal did not accept the appellant ever was a Falun Gong practitioner in China and was not satisfied that he engaged in conduct in Australia otherwise than for the purposes of strengthening his claim for refugee status. The Tribunal found that to the extent that his conduct in Australia could of itself give rise to a well-founded fear of being persecuted, it was required by s 91R(3) of the Migration Act 1958 (Cth) to disregard it.
9. For these reasons, the Tribunal affirmed the decision of the delegate.

FEDERAL MAGISTRATES COURT

10. On 15 April 2010 the appellant filed an application for judicial review of the Tribunal’s decision, and claimed the following (without alteration):

1. There exists lack of procedural fairness.

2. There exists error in the application of law.

3. The facts were not ascertained and wrong decision was made based on insufficient evidence.
   
11. The Federal Magistrate dismissed these grounds as they were not given any meaningful content by way of an amended application or written submissions. The Federal Magistrate also dealt with an oral submission made by the appellant that the Tribunal had arrived at its conclusion on illogical or unreasonable grounds, so as to provide jurisdictional error such as was recognised in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, or recently in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362. In this regard, the Federal Magistrate found that the Tribunal’s reasoning did not proceed in an arbitrary manner as suggested by the appellant. The Federal Magistrate also distinguished the decision in SZLSP, stating at [20]:

Unlike SZLSP, the present Tribunal did identify the independent information which it relied upon when assessing the [appellant’s] level of knowledge and confidence in practice, and I am not persuaded that it arrived at unreasonable or irrational opinions when applying that material to the assessment of the [appellant’s] claims. This is a case where, in my opinion, the Tribunal could “legitimately explore what [the appellant] knows about [Falun Gong] in order to assess the genuineness of the claim” (see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [47]).

12. Not being able to identify any other arguable ground of jurisdictional error arising from the grounds of the application or otherwise, the Federal Magistrate dismissed the application.

APPEAL TO THIS COURT

13. By Notice of Appeal filed on 3 November 2010, the appellant raised the following grounds of appeal against the decision of Smith FM:

1. Decision is unfair.

2. My case should be re-examined as everything I said is true.

CONSIDERATION

14. At the hearing of the appeal before me yesterday the appellant was self-represented. The Minister was represented by Ms Buchanan of the Australian Government Solicitor.
15. No written submissions were filed by the appellant. Rather, the appellant made oral submissions, which can be summarised as follows:
    • He is a genuine Falun Gong practitioner.
    • He wants a fair decision. The Tribunal had been unfair in its decision-making process.
    • Genuine Falun Gong practitioners deserve protection, as do those who are implicated in the practice of Falun Gong.
    • He does not understand the difference between a “devoted” and “not-devoted” Falun Gong practitioner.
16. Neither the grounds of appeal nor the submissions of the appellant identify any appellable error in the decision of the Federal Magistrate. The reasons for decision of the Tribunal reveal detailed and careful consideration of the appellant’s case by the Tribunal. In my view no jurisdictional error infects the decision of his Honour below, nor the reasons for decision of the Tribunal.
17. The appeal should be dismissed with costs.
    

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 8 February 2011