SZKDA v Minister for Immigration and Citizenship [2008] FCA 188 (29 February 2008)

SZKDA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2065 OF 2007

SIOPIS J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2065 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKDA 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

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 2065 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

1 The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on 13 March 2005. On 21 March 2005, the appellant made an application for a protection visa.

2 In a typewritten statement attached to her protection visa application the appellant claimed to be a Falun Gong practitioner. The appellant stated that in 2000 whilst she was practising Falun Gong she was arrested by the police. She was detained for a month and "brutally kicked". She said that she and her sister had escaped China and feared persecution if she returned to China on the grounds that she is a Falun Gong practitioner.

3 A delegate of the first respondent refused the application for a protection visa on 15 April 2005.

4 The appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the delegate’s decision. By order of the Federal Magistrate’s Court, the decision was quashed on 15 August 2006 and remitted to the Tribunal for decision according to law. The reconstituted Tribunal also affirmed the delegate’s decision. The appellant sought judicial review of the Tribunal’s decision. On 26 September 2007, the Federal Magistrates Court dismissed the application for review.

6 At the hearing, the appellant stated that she was not a Falun Gong practitioner. She said that her agent had told her to say she was a Falun Gong practitioner so she could get refugee status and stay in Australia. The appellant went on to say that it was her agent who wrote the claims made in her statement in support of her protection visa application, and that these claims were not true.

7 The appellant stated that she had only practised Falun Gong a couple of times by following a friend who was practising. On one occasion whilst practising with a friend in a park she was apprehended by police who hit her on the head with an electric stick before she could escape.

8 The appellant had told the Tribunal at the hearing that she was Catholic but had demonstrated very little knowledge of that religion. Moreover, she told the Tribunal that she would have no difficulty practising Catholicism in China. The appellant also stated that she had not practised Falun Gong since coming to Australia and would not practise it if she was forced to return to China.

9 The Tribunal also noted that the appellant had stated that she "feared" returning to China because she did not like China. She said that everything in China was not as good as it was in Australia. The appellant claimed that there was no other reason that she did not want to go back to China.

10 The Tribunal accepted the appellant’s claims concerning her migration agent and that she was not a Falun Gong practitioner.

11 It did not accept her claims to have been attacked in a public park by police with an electric stick, and found that her limited knowledge of Falun Gong was completely incompatible with having practiced it. It also found that she showed no knowledge of Catholicism and rejected the appellant’s claim to be a Catholic.

12 For these reasons, the Tribunal found that the appellant did not have a well-founded fear of persecution in China.

13 Before the Federal Magistrate, the appellant raised two grounds of appeal. Firstly, that the Tribunal erred in not satisfying the criteria set out in s 36(2) of the Migration Act 1958 (Cth) (the Act), and secondly, that the Tribunal erred in finding that the appellant "did not have a genuine fear of being persecuted of [sic] my religion or for any other Convention reason".

14 The Federal Magistrate recited each of the claims the appellant had made before the Tribunal and the basis on which the Tribunal had rejected them. The Federal Magistrate found that he was unable to identify any jurisdictional error by the Tribunal and dismissed the application.

15 The appellant raised two grounds of appeal. The first ground stated that the Federal Magistrate erred in not finding that the Tribunal had committed jurisdictional error. The second ground was that the Federal Magistrate erred in finding that the Federal Magistrates Court had no jurisdiction to interfere in the appellant’s case pursuant to the Act.

16 The appellant did not in oral submissions expand upon the general grounds of appeal referred to above. The appellant’s submissions were to the effect that she was a practising Catholic and the Tribunal had been wrong to find that she was not.

In my opinion, there was no error by the Federal Magistrate in finding that the Tribunal had not fallen into jurisdictional error. The Federal Magistrate examined the manner in which the Tribunal had considered and disposed of each of the claims made. The Federal Magistrate did not err in concluding that the Tribunal had considered each of the claims and that it was entitled to reject them, as it had, on credibility grounds. The appellant’s submissions to this Court amounted to an impermissible attack on the factual findings of the Tribunal. They did not demonstrate any error by the Federal Magistrate.

18 As to the second ground, insofar as this is a complaint that the Federal Magistrate did not revisit the merits of the appellant’s application, the ground is without substance because the application to the Federal Magistrates Court was not a merits review. Insofar as the complaint is that the Federal Magistrate erred in failing to find that the Tribunal had fallen into jurisdictional error, the ground is repetitive of the first ground and is dismissed for the same reason.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Counsel for the Appellant:	The appellant appeared in person.

Counsel for the First Respondent:	Ms Therese Quinn

Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	25 February 2008

Date of Judgment:	29 February 2008

Federal Court of Australia

SZKDA v Minister for Immigration and Citizenship [2008] FCA 188 (29 February 2008)