FEDERAL COURT OF AUSTRALIA

SZKED v Minister for Immigration & Citizenship [2007] FCA 1206

SZKED v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 929 OF 2007

GILMOUR J

9 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed. 

2.         The appellant pay the first respondent’s costs fixed at $1,200.  

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

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a Federal Magistrate of 9 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 6 December 2006 and handed down on 4 January 2007.  The Tribunal had affirmed a decision of a delegate of the then Minister for Immigration and Multicultural Affairs to refuse grant of a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China who most recently arrived in Australia on 29 August 2004.  On 31 August 2004 the appellant lodged an application for a protection visa and on 10 September 2004 a delegate of the first respondent refused that application.  On 12 October 2004 the appellant applied to the Tribunal for a review of that decision.  The appellant did not attend a hearing before the Tribunal previously constituted.  TheTribunal, differently constituted, affirmed the delegate’s decision on 26 November 2004.  The appellant sought review of the Tribunal’s decision by the Federal Magistrates Court and on 27 September 2006, the Federal Magistrates Court set aside that decision and remitted the matter to the Tribunal to be determined according to law.

CLAIMS BEFORE THE TRIBUNAL

3                     According to the appellant’s protection visa application, the appellant was born in China on 3 April 1972, whose wife and 2 children reside in China.  The appellant claimed that he was a technician at a ‘Knitting Machinery Factory,’ prior to leaving China.

4                     In his protection visa application, the appellant provided an unsigned and undated statement as follows:

‘Introduced by my wife I became a member of “Falungong” which has been banned by the Chinese authorities. Practicing Falungong makes me feel peaceful, and gradually, my health was becoming better and better.  On a Sunday in April 2004, when I was having a gathering, local police found out and came to arrest people.  With the help of other members, I could return home.  However, some other members were arrested and they were tormented cruelly by the Chinese authorities and could not be released unless they disclose other members’ locations.  I worry about my safety and left China to Indonesia in May 2004. After I went to Indonesia, I realized that race discrimination is very serious there; I could not enjoy the same rights as other Indonesians because of my Chinese ethnicity, so I cam to Australia for protection. Both China and Indonesia are not safe for me. China is not safe for me because of my being a member of “Falungong” which has been banned by the Chinese authorities. Indonesia is not safe for me because of my Chinese ethnicity. I sincerely hope that Australian government can provide me with protection.’

5                     When lodging his application for review to the first constituted Tribunal, the appellant provided a further statement, in which he repeated the above claims.  

6                     The appellant appeared before the differently constituted Tribunal on 29 November 2006 to give evidence and present arguments.  The appellant provided his passport to the Tribunal prior to the commencement of the hearing, and a copy was placed on the Tribunal file.

7                     The appellant stated that he is from Heibei in China, and departed China on 14 May 2004 for Indonesia where he stayed for three months, and then left for Australia.  He claimed that his friends in China advised him to go to Indonesia to avoid harm in China.  However, he claimed that he discovered there was ‘serious racism’ against Chinese people in Indonesia and found that he was unable to remain there.  The appellant claimed that he had worked in Indonesia for a short time.

8                     The appellant’s passport indicates he came to Australia on 13 June 2004 and then left Australia on 17 June 2004 to return to Indonesia.  The appellant claimed at the hearing that he was fearful in Indonesia, due to the Presidential elections.  He had obtained a transit visa to Australia but initially went to Vanuatu.  He stayed there for approximately three to five days but did not want to stay there as there were few Chinese people there and he had heard that ‘very few’ Chinese people had been murdered there.  The appellant then travelled to Australia.

9                     The appellant stated that the Chinese government was attempting to find out the names of Falun Gong practitioners and that he would be tortured in China.  He stated that he had practised Falun Gong in China, but not for a long time.  The appellant also stated that he practised Falun Gong in Australia, but only once a fortnight in a park in Campsie.

10                  Before the Tribunal, the appellant then claimed that he had been practicing Falun Gong since 1996, because his wife recommended it to him, and that he practised the Falun Gong movements with 2 or 3 other people and that he practised in China once every week.’  The appellant claimed that he and his friends would take it in turn to use each other’s homes to practise Falun Gong.

11                  The appellant stated that he only practised 2 Falun Gong exercises.  When asked by the Tribunal as to why he had only learnt 2 of the 5 Falun Gong exercises, the appellant stated that the reason for this was because he felt that he could not get to the next stage.

12                  The appellant claimed that on a Sunday in April 2004, two of his friends were arrested, and then tortured whilst they were in detention.  The appellant claimed that he had been practising Falun Gong with these people and was frightened that they would confess to the police that he had been with them, and that the police would pursue him.  The appellant claimed that he was with his friends when the police came to arrest them, but that his friends allowed him to escape and that he ran home.  The appellant claimed that he stayed at home in hiding, that he was continually frightened that his friends would confess and that he then ran away and went into hiding at a relative’s place, remaining there for 13 or 14 days.

THE DECISION OF THE TRIBUNAL

13                  The Tribunal gave consideration to the appellant’s knowledge of Falun Gong and found he had some basic knowledge.  However, the Tribunal found that his extremely limited understanding of the principles and meaning of Falun Gong and his inability to perform some of the exercises was inconsistent with his claim of practising Falun Gong for some 10 years.  For example, the Tribunal noted the appellant was unable to explain why he practised only two of the five exercises despite the claimed length of his practice of Falun Gong, that he was unaware of the names of Falun Gong texts and exercises, and that he was unable to provide any understanding of the principles behind Falun Gong.  The Tribunal also found the appellant’s explanation that Falun Gong was not important to him any more because it has resulted in a separation from his family, was inconsistent with his claim to have practiced in Australia. 

14                  The Tribunal did not accept the appellant was a Falun Gong practitioner in China or Australia, given that the appellant could not perform even 2 of the 5 Falun Gong exercises, as well as other deficiencies in the appellant’s evidence.  After hearing the appellant’s evidence at the hearing, the Tribunal concluded that the appellant had learnt basic aspects of Falun, for the purposes of providing evidence at the Tribunal hearing relating to his claim of being a Falun Gong practitioner.  

15                  The Tribunal did not accept the appellant suffered serious harm in China as a result of being a Falun Gong practitioner.  The Tribunal also did not accept the appellant’s claim that if he were to return to China in the reasonably foreseeable future, that there was a real chance that he would be persecuted for his real or imputed religious belief or membership of a particular social group for the purposes of the Convention, due to his claimed involvement with Falun Gong, noting that the appellant did not claim any other reason for fearing to return to China.

16                  The Tribunal noted that the appellant had spent a short period of time in Indonesia and Vanuatu and stated in its decision that it had considered the claims in relation to Indonesia and Vanuatu.  However, the Tribunal found it was required to assess the appellant’s claims against his country of nationality only, and as such, found that the appellant did not have a well founded fear of persecution in China. 

17                  The Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol and consequently did not satisfy the relevant criteria to be granted a protection visa.

GROUNDS BEFORE THE FEDERAL MAGISTRATE

18                  In an amended application the appellant raised three grounds of review:

‘1.        The Tribunal referred to irrelevant independent information for the application of my application.

2.         The Tribunal refused my application based on assumption of the officer, not evidence.

3.         The Tribunal failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958.  I was not given an opportunity to comment upon the reason for affirming the decision (please refer to the details of the particulars).’

19                  The appellant made oral submissions that the Tribunal did not follow s 424A of the Act, did not give him an opportunity to comment and was prejudiced.

THE DECISION OF THE FEDERAL MAGISTRATE

20                  Before the Federal Magistrate, the appellant, in relation to an oral submission he made, that the Tribunal was biased and prejudiced against him, was unable to give any reason in support of this, except for the fact that the decision was not in his favour.  As to the second ground his Honour noted that the particular assumption to which the appellant took exception was the Tribunal’s assumption that an experienced Falun Gong practitioner would know how to perform all of the five Falun Gong exercises.

21                  His Honour rejected the assertion that there was a breach of s 424A of the Act, noting that under s 424A(3)(b) of the Act, evidence provided by the appellant to the Tribunal for the purpose of the application for review was excluded from the Tribunal’s obligations under s 424A the Act.  

22                  The Federal Magistrate found there was no evidence of irrelevant information upon which the Tribunal relied, noting that it was ‘hardly irrelevant’ that the appellant could only perform two of the five Falun Gong exercises, and that he could not even perform those two exercises very well.  His Honour also found that there was no evidence that the Tribunal relied on wrong information, even if that were a ground for jurisdictional error, and that there was not evidence of bias at all.

23                  The Federal Magistrate found that the appellant’s claim, that the Tribunal based its decision on an assumption by the Tribunal member rather than evidence, had not been made out.  The appellant’s assertion, as mentioned above, was that the Tribunal had based its decision on an assumption that an experienced Falun Gong practitioner should be able to do more than two of the five exercises.  However, the Federal Magistrate found that this was not an assumption, but rather a logical inference that was drawn from the evidence, further finding that none of the appellant’s grounds were made out in either his original or amended application within the Federal Magistrates Court.

24                  The Federal Magistrate held that there was no arguable ground for jurisdictional error, having considered both the Tribunal decision and the supporting documentation.  His Honour found that the Tribunal had complied with s 425 of the Act by inviting the appellant to a further hearing within plenty of time.  As the Federal Magistrate found that there was no jurisdictional error, his Honour was satisfied that the Tribunal decision was a privative clause decision, as defined by s 474(2) of the Act and dismissed the appellant’s application.

NOTICE OF APPEAL

25                  The Notice of Appeal was supported by an affidavit sworn by the appellant.  The Notice of Appeal contains three grounds which in substance repeat the grounds which were before the Federal Magistrate:

1.                  The Tribunal referred to irrelevant information for the consideration of my application.

2.                  The Tribunal refused my application based on wrong information, and not evidence.

3.                  The Tribunal failed to carry out its statutory duty.  The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.  The Tribunal failed to consider my application according to s 424A of the Migration Act 1958.

26                  The appellant’s affidavit stated as follows:

‘1.        When the Tribunal considered my application for a protection visa, the Tribunal referred to irrelevant inforamtion (sic). The Tribunal refused my application based on wrong informatin (sic), and not evidence.

2.         The Tribunal failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. The Tribunal did not notify me the reason or part of the reasons for affirming the decision. I was not given an opportunity to explain my case and comment upon it.’

27                  At the hearing of the appeal before me the appellant declined my invitation to make oral submissions in support of his application. 

REASONS

28                  The Notice of Appeal does not assert any error in his Honour’s decision but rather seeks to challenge the Tribunal decision.  An appeal to this Court lies against the judgment of the Federal Magistrate and not from the Tribunal’s decision.  An appeal to the Full Court in a refugee matter should not be taken as an occasion to reconsider the Tribunal’s reasons as distinct from considering the primary judge’s reasons: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10].

29                  I am unable to discern any jurisdictional error in the reasoning or findings of the Federal Magistrate. 

30                  Accordingly, the appeal ought to be dismissed with costs. 

Associate:

Dated:         9 August 2007