FEDERAL COURT OF AUSTRALIA

SZHUF v Minister for Immigration and Citizenship[2007] FCA 1686

SZHUF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1435 OF 2007

ALLSOP J

31 OCTOBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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 orders made by the Federal Magistrates Court on 5 July 2007, dismissing an application for review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 19 October 2005 and handed down on 15 November 2005, which affirmed a decision of a delegate of the Minister not to grant a protection visa.  The appellant is a national of the People’s Republic of China who arrived in Australia on 1 May 2005 and shortly thereafter applied for a protection visa.  A delegate of the Minister refused that visa in 2005 and the Tribunal affirmed that decision in November 2005.

2                     The appellant’s claims were based upon an adherence to Falun Gong and based upon events that she said had occurred in China before her leaving.  These claims were set out in the reasons of the Tribunal.  The Tribunal questioned the appellant, who appeared at the hearing, about Falun Gong and about aspects of her claims.  The Tribunal concluded after that questioning that, while it accepted that the appellant was a citizen of the People’s Republic of China, it did not accept that she was a Falun Gong practitioner, or that she was involved in Falun Gong activities in China as she claimed.  The Tribunal did not accept the appellant as a witness of truth and did not accept that she had been questioned, detained and ill‑treated.

3                     The Federal Magistrate set out in his reasons the extract from the Tribunal’s reasons for coming to the conclusion that the Tribunal did as follows:

The Tribunal considers that if the applicant were a genuine Falun Gong practitioner she would be able to tell the Tribunal more about Falun Gong and describe or name or demonstrate the Falun Gong exercises.  She cannot do this when asked about the exercises by the Tribunal and stated that this was because she was not “that familiar” with Falun Gong.  The Tribunal considers that if the applicant practised Falun Gong in China and in Australia she would be able to tell the Tribunal more about Falun Gong and generally explain/demonstrate the exercises to the Tribunal.  The Tribunal also considers that if the applicant were a genuine Falun Gong practitioner and fled from China because she feared persecution there because of her involvement with Falun Gong as she claims she would have resumed regular practice of Falun Gong in Australia.  The Tribunal does not accept that the applicant has practised Falun Gong in Australia for the reasons given above.  Also in the Tribunal’s view if the applicant were of interest to Chinese authorities and persecuted for Falun Gong activities as she claims she would not have been able to work over the least five years in the employment that she told the Tribunal about and live at her usual address in the family home where she stated she had lived for the last 10 years and where her husband and son still reside.

4                     I should at this point say for the benefit of the appellant that neither the Federal Magistrate nor myself is charged with the responsibility of finding facts in her case.  It is not our place to believe or disbelieve her evidence about what she put to the Tribunal.  Therefore nothing that I say, and nothing the Federal Magistrate said, was a conclusion of each of us that the appellant was not a witness of truth.  The responsibility for assessing the evidence of applicants for refugee status lies in the first instance on the Minister, through his or her delegate, and then the reviewing Tribunal.  Those are the persons and that is the body with the responsibility of assessing the legitimacy of claims made by applicants for refugee status.  What the Federal Magistrates Court does and what this Court does on appeal is to assess the legality of the approach of the Tribunal.  Unless the Tribunal has approached its task in some fashion that is unlawful, findings of fact, including which witnesses to believe or not believe, are matters for the Tribunal.  Given that the Tribunal came to the view that there was no plausible evidence before it, it could not be satisfied that the appellant was entitled to a protection visa. 

5                     In the Federal Magistrates Court, the appellant filed two documents by way of application.  The first was an application filed on 9 December 2005 which cited three grounds of complaint about the Tribunal’s decision, being:

1.                  The Refugee Review Tribunal did not provide the applicant with procedural fairness.

2.                  The Refugee Review Tribunal erred in law when making the decision.

3.                  The applicant has not been given the benefit of the doubt.

6                     On 24 March 2006, there was filed what was said to be an amended application.  Much of this took the place of submissions.  However, as the Federal Magistrate observed in paragraph 9 of his reasons, the document added a further ground that the Tribunal failed to consider the applicant’s situation at the time of the hearing.

7                     The Federal Magistrate dealt with each of these grounds.  As to the procedural fairness allegation, the Federal Magistrate noted that the only evidence before him was the book of documents.  He did not have the transcript or tape of the hearing.  From the material before him, he could not conclude that any aspect of the Migration Act (1958) (Cth) was not complied with or that there had been any absence of procedural fairness.  In these circumstances, he was not able to come to the conclusion that there was any failure of procedural fairness to ground the unparticularised assertion.  I should add in this respect that the notice of appeal in this court repeats the assertion of a lack of procedural fairness.  I asked the appellant in what way was the Tribunal hearing unfair and she was not able to articulate any unfairness.  There has been no suggestion that the Federal Magistrate was in any way unfair.

8                     The second ground that was dealt with by the Federal Magistrate was that the Tribunal had erred in law in some fashion (that is unarticulated) in making the decision.  The Federal Magistrate was unable to identify any such error in law; nor am I.

9                     The third matter raised by the applicant before the Federal Magistrates Court was that she had not been given the benefit of the doubt.  As the learned Federal Magistrate identified, there appeared to have been little doubt in the Tribunal’s mind as to the approach to the evidence.  Though it is not a matter which will ground any successful appeal, the clarity of the finding that the applicant was not a witness of truth reflects a confidence not often reached and expressed by experienced triers of fact.  Nevertheless, there is no basis to conclude that an inappropriate approach was used to lead to the confident findings that were expressed.

10                  The fourth ground that was dealt with by the Federal Magistrate was that the Tribunal failed to consider the applicant’s situation at the time of hearing.  As the Federal Magistrate said in [9] of his reasons, the rejection of the applicant’s evidence in its virtual entirety made this complaint somewhat empty.

11                  The notice of appeal in this court raised two grounds.  The first was that the applicant was not provided with procedural fairness.  I have already dealt with this and there does not seem to be any foundation to think that the Federal Magistrate made any error in that respect.  The second ground of appeal was an unparticularised assertion that the Federal Magistrates Court erred in law in making the decision.  I am not assisted by any submission on behalf of the appellant as to what that error of law was.  I have considered both the Tribunal’s decision and the Federal Magistrate’s decision and I am not able to begin to articulate any ground whatsoever which might support an assertion of that character, there being no apparent grounds for complaint about the Federal Magistrate’s reasons. 

12                  The only orders that can be made are that the appeal be dismissed and the appellant pay the respondent’s costs.

Associate:

Dated:         19 November 2007