FEDERAL COURT OF AUSTRALIA

SZLKZ v Minister for Immigration and Citizenship [2008] FCA 850

Migration Act 1958 (Cth)

Minister for Immigration v Eshetu [1999] HCA 21

VTAG v Minister for Immigration [2004] FCA 447

Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210

SZLKZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 482 of 2008

REEVES J

6 JUNE 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                                             This is an appeal against a judgment of Federal Magistrate Raphael dated 20 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was delivered on 30 August 2007 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND – SUMMARY OF FACTS and the tribunal

2                                             The appellant is a citizen of the People’s Republic of China (‘China’).  She was born in Jilin in 1969 and moved to Laixi City in Shandong province in 1993 where she married.  She has an 11 year old daughter.  She came to Australia on 1 April 2007 and applied for a protection visa two days later, on 3 April 2007.  That application was refused by the Minister’s delegate on 27 April 2007 and the appellant applied to the Tribunal to review that decision on 2 June 2007.  The appellant attended a hearing before the Tribunal and gave evidence on 31 July 2007 but the Tribunal ultimately affirmed the delegate’s decision.  The appellant applied to the Federal Magistrate’s Court for judicial review of that decision on 8 October 2007.

3                                             The appellant submitted a statement in support of her application for a protection visa which stated ‘[b]ecause I am a Falun Gong practitioner, I had suffered from persecution by the Chinese authorities in China.’  She stated that she commenced practicing in 1995 on weekends for health reasons and ‘in a few years’ time I introduced, developed and taught too [sic] many new practitioners, including Mr Wang Xujia.’  She came to Australia with Mr Xujia on a ‘visitor visa’.  In Australia she claimed to have made contact with local Falun Gong groups and to have been welcomed.  She sought protection from ‘the persecution by the Chinese government in connection with my Falun Gong activities in Australia’.  Her husband and her daughter have remained in China. 

4                                             Before the Tribunal the appellant claimed that she feared arrest and imprisonment if she returned to China because she was a Falun Gong practitioner.  She claimed to have been arrested while exercising in 2000 and detained for three months, during which time she was beaten.  The appellant said that as a result of her detention her mother had a heart attack and died and her husband ended up in a car accident.  She claimed she was monitored by Chinese authorities after being released from detention following the intervention of her employer. 

5                                             The appellant was issued a passport in December 2002 and from late 2003, she travelled to Japan and spent six months there before returning to China.   The appellant claimed that in October 2006, she was taken from a friend’s house, where she was practicing Falun Gong, by two ‘PSB’ officers.  She claimed she was taken to the local PSB station for three hours and admonished and kicked.  She claimed she was warned she would not get off so easily next time.  The appellant left China five months later and claimed that she feared she would face further persecution on the basis of her Falun Gong practice should she return to China.  She departed China legally from Pudong Airport on 31 March 2007.

THE TRIBUNAL’S DECISION

6                                             At the outset of the ‘Findings and Reasons’ section of its decision, the Tribunal found the appellant to be a witness ‘of low reliability’.  However, it considered it would be ‘unsafe’ to dismiss her claims on that basis and therefore the Tribunal proceeded to examine them individually.  Earlier in its decision the Tribunal records that at the hearing it ‘outlined its concerns about the [appellant’s] claims.  These included the fact of her return travel to Japan and her delayed departure from China, both of which were hard to reconcile with a genuine fear of persecution; her limited knowledge about key aspects of Falun Gong, such as the Zhongnanhai incident and reported events in Laixi City itself; and her evident lack of engagement in Australia.’  The Tribunal noted that in response, the appellant repeated some of her earlier explanations and queried what further evidence the Tribunal required.

7                                             The Tribunal did not accept that the appellant was a Falun Gong practitioner as claimed.  It set out seven reasons for that conclusion including the appellant’s ‘patchy knowledge’ of the Falun Gong exercises, its teachings, its history and its seminal text ‘Zhuan Falun’.  It also pointed to her lack of knowledge of major Falun Gong gatherings in her home city of Laixi in 1998 and 1999, her travel documentation and history being inconsistent with that of a genuine Falun Gong adherent and her limited practice of Falun Gong since coming to Australia.  Based on these reasons the Tribunal concluded that the appellant was not and never had been a Falun Gong practitioner privately or publicly in China or Australia ‘let alone a[s] a long-term practitioner and ‘key member’ in Laixi City, as claimed’, nor that she had been arrested or had a bad record with Chinese authorities. 

8                                             The Tribunal found the appellant’s ‘travel history, her conduct and her personal circumstances including her continuous employment and place of residence since 1993 were at odds with the reported severe mistreatment of Falun Gong practitioners in China, or for that matter anyone who suffers persecution.’  The Tribunal accepted that the appellant’s family had suffered some misfortune, but did not accept that these events were connected with any Convention-related persecution. 

THE FEDERAL MAGISTRATE’S DECISION

9                                             In her Federal Magistrates Court application, the appellant claimed that:

‘1.  The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 

2.  It is illogical for the Tribunal to conclude that I am not a Falun Gong practitioner while I displayed at the hearing a patchy knowledge of the Falun Gong exercises and teachings.

3.  The Tribunal decision took the following irrelevant considerations into account in the exercise of the power: the general country information without consideration of the facts of my case.

4.  The Tribunal is required by s424A of the Act of the Migration Act 1958 to give the applicant notice of the particulars of the information and the reason why the Tribunal considered it relevant to the case, the Tribunal failed to do so.’

10                                          The Federal Magistrate considered the Tribunal’s decision in light of the claims and oral submissions made by the appellant.  His Honour noted that the appellant had failed to particularise the impropriety of the exercise of power or the information which should have been provided to her under s 424A of the Migration Act 1958 (Cth) (‘the Act’).  His Honour referred to Minister for Immigration v Eshetu [1999] HCA 21 in support of the proposition that although the appellant might feel the reasoning was wrong, it was not ‘illogical’ for the Tribunal to find that the she was not a Falun Gong practitionerand, in any event, a finding of illogical reasoning would not of itself constitute jurisdictional error (citing VTAG v Minister for Immigration [2004] FCA 447).   

11                                          His Honour found that the general country information referred to by the Tribunal, regarding Falun Gong activities and a crackdown by Chinese authorities, was not irrelevant to the appellant’s claim.  His Honour dismissed the application on the basis that the Tribunal had committed no jurisdictional error.

GROUNDS OF PRESENT APPEAL

12                                          The appellant filed a Notice of Appeal in this Court on 9 April 2008.  That notice raises the identical (unparticularised) grounds that she raised in her application to the Federal Magistrates Court except that the first ground regarding improper exercise of power has been omitted.

THE CONTENTIONS

13                                          At the hearing of the appeal before me, the appellant appeared in person and was unrepresented.  She was assisted by an interpreter.  Mr Pinder appeared for the first respondent.

14                                          The appellant submitted that she was a genuine Falun Gong practitioner and that the Tribunal should not have disbelieved her.  She said that the main problem was that the Tribunal did not understand the conditions in China.  When I pointed out that her notice of appeal to this court had not identified any error on the part of the Federal Magistrate, as it should, she responded that her case should be determined by what she had said earlier, ie that she was a genuine Falun Gong practitioner and so on.

15                                          Mr Pinder relied upon the written submissions as filed.  In response to the appellant’s oral submissions he submitted that the appellant was seeking a merits review and that was not permissible.

CONSIDERATION 

16                                          It has been stated many times in this Court that the purpose of an appeal to this Court from the Federal Magistrates Court is to correct error on the part of the Federal Magistrates Court.  The appeal hearing should not be taken as an occasion to review the decision of the Tribunal: see, for example, Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10].  Moreover, both this Court on appeal from a decision of a Federal Magistrate and, before that, the Federal Magistrates Court on judicial review of a decision of the Tribunal, are only able to intervene where the Tribunal’s alleged error amounts to jurisdictional error.  Neither Court can intervene in relation to an alleged error of fact per se committed by the Tribunal, which includes an alleged error committed by the Tribunal in its assessment of an applicant’s credibility.  It necessarily follows that neither Court can review the merits of the Tribunal’s decision.

17                                          With the omission of the first ground, the appellant’s grounds of appeal to this Court are identical to those relied upon in her application for judicial review to the Federal Magistrates Court.  Not surprisingly, therefore, none of them identifies any error on the part of the Federal Magistrate and they are all directed to alleged errors in the decision of the Tribunal.  In so far as they seek to attack that decision they do so, in my view, by pointing to aspects of the decision which, if they involved any errors at all, are clearly errors of fact.  This is plainly the case with ground one, which criticises the Tribunal’s alleged ‘illogical’ assessment of the appellant’s credibility, and ground two, which questions the reliability of the ‘general’ country information upon which the Tribunal relied.  Ground three refers generally to ‘the information’ the Tribunal relied upon and is meaningless without particulars.  Therefore, even if they were open to be considered on this appeal (which they are not), none of these grounds identifies any jurisdictional error that would permit this Court, or the Federal Magistrates Court for that matter, to intervene.  I therefore respectfully agree with the learned Federal Magistrate in his rejection of these grounds. 

ORDERS

18                                          I order that this appeal be dismissed.

19                                          I will hear the parties on the question of costs.

Associate:

Dated:         6 June 2008