FEDERAL COURT OF AUSTRALIA

SZHVS v Minister for Immigration and Citizenship [2008] FCA 220

SZHVS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2284 OF 2007

GILMOUR J

3 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the First Respondent’s costs to be taxed if not agreed. 

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 the orders made by Federal Magistrate Emmett on 29 October 2007 dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 January 2007 and handed down on 30 January 2007. The Tribunal had affirmed the decision of a delegate of the first respondent made on 2 June 2005 not to grant a protection visa. 

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China who arrived in Australia on 2 May 2005.  The appellant initially claimed she had a well-founded fear of persecution if she were to return to China due to her practice of Falun Gong.  She claimed that she began practicing Falun Gong after learning it from her husband, and that she and her husband joined in on Falun Gong activities as well as participating in demonstrations and meetings in Beijing.  In 1999 she and her husband were allegedly detained for four days and suffered physical and mental harm at the hands of the Chinese authorities.  The appellant claimed that in 2004 police went to her house to investigate her and her husband as the Chinese authorities suspected her husband had been a key member in organising Falun Gong practice for local people of Falun Gong by contacting overseas branches. The appellant claimed that she and her husband were key members of Falun Gong.

PROCEEDINGS BEFORE THE TRIBUNAL

3                     On 30 June 2005 the appellant applied to the Tribunal for a review of the delegate’s decision.  The Tribunal affirmed the decision of the delegate not to grant a protection visa on the 28 October 2005.

4                     The review of the decision of the first Tribunal on 28 October 2005 was set aside by consent by the Federal Magistrates Court on 18 September 2006, and remitted to a second Tribunal, the decision of which is the subject of the present appeal.  An interpreter was present. 

5                     The appellant attended a hearing of the Tribunal on 7 December 2006.  The Tribunal sent the appellant a letter that same day pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”) advising that the evidence given by her at the hearing raised new information that would, subject to any comment she might make, be the reason or part of the reason for deciding that she was not entitled to a protection visa.  The letter invited comment on certain issues by 2 January 2007.  No response was received by the Tribunal.

6                     The Tribunal found that the appellant was not a reliable, credible or truthful witness.  It found that the information in her protection visa application and her oral evidence was inconsistent.

7                     It found that her evidence was vague and that she was unable to provide any information beyond the most banal generalities with regard to Falun Gong.  Although she had claimed that her husband joined her as a practitioner he failed to give evidence in support of her and the applicant failed to respond to the Tribunal’s opportunity to explain why this was so and why it should not be inferred that his evidence would not support her claims.

8                     Further, the Tribunal found that:

Having regard to the applicant’s overall credibility, the Tribunal is not satisfied that the applicant had participated in any Falun Gong related activities in Australia.  Even if the Tribunal were to accept, which it does not, that the applicant has attended meetings or has participated in “activities” in Australia, the Tribunal is of the view that her conduct has been designed to assist her in her endeavour to remain in this country by strengthening her claims against a protection visa application.

…

For the above reasons…the Tribunal is not satisfied that her conduct in Australia has been otherwise than for the purpose of strengthening her claim to be a refugee.  

9                     The Tribunal found that the appellant was not a Falun Gong practitioner or that her husband introduced Falun Gong to her. The tribunal was not satisfied that the applicant participated in any Falun Gong activities in China or that she was arrested for that reason. The tribunal found the applicant did not suffer any resulting persecution, or face a real chance of Convention persecution in China in the reasonably foreseeable future.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE

10                  In her amended application to the Federal Magistrates Court filed on 31 May 2007, the appellant claimed that:

(a)        The Tribunal failed to understand the claims of my application and did not believe that I am a genuine Falun Gong practitioner based on assumption, The Tribunal failed to consider my application with accordance with s 91R of the Migration Act.

(b)       The Tribunal did not refer to proper independent information for the consideration of my application. The Tribunal was lack of knowledge of China and wrongly believed that I would not be persecuted on my return to China. The Tribunal failed to assess the chance of my persecution on my return to China.

(Transcribed from the original without alteration or amendment.)

11                  Her Honour characterised these grounds in the following way:

The grounds appear to be no more than a disagreement with the findings and conclusions of the Tribunal and, as such, appear to seek merits review, which this Court cannot provide. The Tribunal's rejection of the Applicant's claims was based on the Tribunal's adverse finding as to the Applicant's credibility. That finding was open to the Tribunal based on the evidence and material before it and for which it provided reasons. [20]  

12                  Her Honour therefore could find no jurisdictional error and dismissed the application.

NOTICE OF APPEAL

13                  The Notice of Appeal filed in this Court on 19 November 2007 contains the following grounds:

(a)        The Tribunal did not believe the claims of my application based on the officer’s assumption. The Tribunal did not make a decision on my application based on evidence and materials. The Tribunal failed to consider my application in accordance with s91R of the Migration Act 1958.

(b)       The Tribunal failed to refer to sufficient independent information for the consideration of my application.

(c)        The Tribunal failed to asses the chance of my persecution because of my involvement with Falun Gong.

(Transcribed from the original without alteration or amendment.)

14                  At the hearing of the appeal before me the appellant was invited to make oral submissions in further support of her appeal but she declined to do so. 

CONSIDERATION

15                  The appellant’s grounds in substance repeat the grounds before the Federal Magistrate. They are unparticularised.  As to the first ground it is clear that the Tribunal’s rejection of the Appellant’s claims was based in its adverse finding as to the appellant’s credibility [7]–[12].  The Federal Magistrate correctly found that those findings were open to it on the evidence before it and for which it provided reasons. [20].

16                  In my opinion the Federal Magistrate correctly characterised this same ground as seeking an impermissible merits review.

17                  S91R(3) of the Act provides that:

For the purposes of the application of this Act and the regulations to a particular person:

(a)                in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)       the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

18                  I repeat here the relevant findings of the Tribunal:

Having regard to the applicant’s overall credibility, the Tribunal is not satisfied that the applicant had participated in any Falun Gong related activities in Australia.  Even if the Tribunal were to accept, which it does not, that the applicant has attended meetings or has participated in “activities” in Australia, the Tribunal is of the view that her conduct has been designed to assist her in her endeavour to remain in this country by strengthening her claims against a protection visa application.

19                  These reasons expose an obvious logical inconsistency. However the primary finding of fact is that the Tribunal did not accept that the appellant had participated in Falun Gong activities other than to assist her endeavour to remain in Australia. Accordingly it was strictly unnecessary to consider the provisions in s91R(3) of the Act.

20                  I can find no error in the Federal Magistrate’s reasoning and conclusion and therefore the first ground of appeal must fail.

21                  As to the second ground of appeal, the Federal magistrate noted that the appellant was unable to identify what the “proper independent information” was. This ground uses the expression “sufficient independent information” which is to the same effect. The appellant did not provide any additional country information to the Tribunal.

22                  This ground remains unparticularised.  The Tribunal, clearly had regard to detailed independent country information from sources such as “Human Rights Watch”, and the Department of Foreign Affairs.  This was expressly taken into account in its reasons.  No discernable jurisdictional error is evident and this ground also fails.

23                  The third ground of appeal is that the Tribunal failed to assess the appellant’s chance of persecution because of her involvement with Falun Gong.

24                  The appellant has not provided any particulars for this ground of appeal. The appellant is seeking a merits review, which is impermissible: Minister v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal found as a fact that she was not a Falun Gong practitioner.

25                  As to the findings of fact generally, the Federal magistrate summarised the approach of the Tribunal as follows:

The Tribunal identified with particularity the claims made by the Applicant and the discussions that it had with the Applicant during the course of the hearing about those claims. The Tribunal put to the Applicant its concerns about the credibility of those claims and the reasons for those concerns both at the hearing and in the Tribunal’s letter dated 7 December 2006, in which those concerns were identified to the Applicant, their relevance explained and the Applicant invited to comment. In the circumstances, the Tribunal complied with its obligations under s 424A of the Act.

A consideration of the Tribunal’s reasons amply supports this summary.

26                  Assessments of an applicant’s credibility based on his or her claims’ internal consistency, inherent plausibility and consistency with independent information – such as those made by the Tribunal in this case – are clearly within the Tribunal’s jurisdiction: Re Minister; Ex parte Duyrairajasingham (2000) 168 ALR 407 (HCA) at [67]; W148/00A v Minister (2001) 185 ALR 703 (FCAFC) at [64]-[65].

27                  This ground of appeal also fails.

28                  The appeal should be dismissed.  The appellant should pay the costs of the first respondent to be taxed if not agreed. 

Associate:

Dated:         3 March 2008