FEDERAL COURT OF AUSTRALIA

SZLEE v Minister for Immigration and Citizenship [2008] FCA 1017

Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559

Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17;(2001) 205 CLR 507

Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547

A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56

SZLEE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 296 of 2008

REEVES J

4 JULY 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of this appeal fixed in the sum of  $2150.

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 Smith delivered on 18 February 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 10 July 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

2                     The appellant is a citizen of the People’s Republic of China (‘China’) who arrived in Australia on 20 January 2007.  The appellant lodged an application for a protection visa with the Department of Immigration and Citizenship ten days later. A delegate of the first respondent refused that application on 24 February 2007, leading the appellant to apply to the Tribunal on 27 March 2007 to review that decision.

3                     In her visa application the appellant stated her religion as ‘Falun Gong’ and that she had left China because ‘I was a Falun Gong believer. I was a member of the Falun Gong organization. I had to leave China because I would be persecuted’. She annexed a statement which relevantly stated:

‘…In 1999, I was laid off by my employer because I joined in the Falun Gong Organization. I knew Q-- W-- in 2002. We always took part in the activities of the Falun Gong Organization…Recently, the Chinese Government is making a new move to crack down on Falun Gong…I was on the list of people to be arrested. So I thought of leaving China for a place where we could pursue freedom in belief…’.

4                     The Tribunal received oral evidence from the appellant at a hearing on 24 May 2007. The Tribunal also received a copy of the first page of her passport (as the appellant claimed to have surrendered the original to her tour guide) and a statement attached to the appellant’s application for review which relevantly stated:

‘…Even if I do not hold the important position in illegal organisation, those local policemen arrested me and threatened me. The Chinese government cannot permit any illegal practitioner of Falun Gong to be freedom. Therefore, I strongly feared so that it had distorted my heart if I continued to stay in China…I admitted I am one of non-core members, so when I asked my friend to get the passport, the local authorities officers were so easy to issue one to me...Sometimes there is many non-perfect places when those officers executive their obligation’.

THE TRIBUNAL’s DECISION

5                      Before the Tribunal the appellant maintained her claims of fearing persecution and discrimination in China due to her practice of Falun Gong.  Prior to leaving China she said that she had often attended Falun Gong gatherings and had distributed promotional material, but she had experienced ‘pressure’ from the government and was dismissed from her employment as a bank teller due to her beliefs and warned by police after the crackdown on Falun Gong in 1999. She claimed that she was on the list of Falun Gong practitioners to be arrested by the authorities (although she only claimed to practise once per week, and privately) and that her departure from China was precipitated by the arrest of another Falun Gong practitioner in February 2006.

6                     The appellant claimed that she had initially travelled to Japan for four days and then returned to China so that after she went there ‘it would be easier to come to Australia’; that is, it would be easier to obtain permission to travel to Australia having previously travelled outside China.  She claimed that she is divorced and that her 16 year old daughter remains in China with her parents. She also claimed that she had commenced practising Falun Gong in Australia two weeks prior to the Tribunal hearing and that she had attended a demonstration in Sydney on 13 May 2007.

7                     The Tribunal had several concerns about the appellant’s claims which it described to her at the hearing. The Tribunal accepted that the appellant had some knowledge of the main Falun Gong exercises and could draw the Falun Gong symbol. However, the Tribunal did not accept that the appellant was a genuine Falun Gong practitioner or that she had practised in China.  It did not accept her claims relating to experiences she suffered in China and found that she had invented them to assist her application.  The Tribunal’s view was that her claim of persecution was not consistent with a return to China after travelling overseas, a departure from China on two occasions without difficulties, or continued residence at a single address. Further, the Tribunal ‘did not consider that the [appellant’s] oral evidence at the hearing was generally consistent; on the one hand she told the Tribunal that the police did not have any specific information about her but on the other hand she said that police often summoned her to the local police station and told her not to practise Falun Gong’.

8                     While the Tribunal accepted that the appellant had practiced Falun Gong in Australia, it was not satisfied that this was otherwise than to strengthen her claim to be a refugee.  The Tribunal accordingly disregarded the conduct for the purposes of the application, under s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’). 

9                     Overall, the Tribunal found that ‘there is no plausible evidence before it that the [appellant] has suffered or will suffer persecution because of her political opinion, her imputed political opinion, her religion, because she is a member of a particular social group or for any Convention reason, from Chinese police/authorities or anyone else in her country, either now or in the reasonably foreseeable future, if she returns to China’ and it was therefore not satisfied the appellant held a well-founded fear of Convention-related persecution in China.

10                  The Tribunal created a file note to record the fact that this matter was considered in terms of the first respondent’s discretion under s 417(1) of the Act to stay matters on humanitarian grounds, but this matter did not meet the criteria for such a stay.

THE FEDERAL MAGISTRATE’S DECISION

11                  The appellant sought judicial review in the Federal Magistrates Court in an Amended Application filed at her hearing on 18 February 2008.  In that Application the appellant relied on the following ground for review:

1.         The Tribunal fell into jurisdictional error by failing to address the             applicant’s case, misunderstanding the applicant’s case, asking itself        the wrong question, failing to accord natural justice to the applicant             and ignoring relevant material.

Particulars

(a)    The Tribunal determined the applicant’s claim on the basis that the claim was that she had suffered serious harm in the past in her country of origin.

(b)   The claim of the applicant was that she feared that serious harm may befall her at some time in the future in her country of origin and that she had left the country of origin to avoid such harm.

12                  The Federal Magistrate had the benefit of a transcript of the hearing before the Tribunal and the assistance of counsel representing the appellant. Counsel for the appellant made submissions to the effect that the Tribunal had ignored the appellant’s fear of persecution due to further information which the Chinese authorities mightdiscover, in addition to her status as a known practitioner.  Specifically, counsel suggested that the authorities might become aware that she had distributed Falun Gong material.

13                  The Federal Magistrate examined the transcript of the Tribunal hearing and concluded that the Tribunal had properly referred to all of the appellant’s evidence.  His Honour noted that the appellant’s claims suggested that she not only feared future persecution but also that she had suffered harassment from the authorities in the past as a Falun Gong practitioner.  It was therefore relevant for the Tribunal to address the appellant’s claimed history when addressing the claimed fear of future persecution: referring to Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 575 – 576, and Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 544 – 545.

14                  His Honour also noted the appellant’s counsel’s contention that the use of the phrase ‘the applicant claims that she left China because she was/will be persecuted by the authorities if she returns there’ in the summary, found in the ‘Findings and Reasons’ section of the Tribunal’s decision, disclosed jurisdictional error.  Counsel for the appellant suggested that the ‘generality of the summary was so inadequate as to suggest a failure properly to appreciate the claims which were before the Tribunal’.  However, his Honour found that the Tribunal’s subsequent conclusion properly addressed the appellant’s future fears based on her past experience. 

15                  The Federal Magistrate concluded by stating that ‘the arguments which were presented to me to establish a misunderstanding of the [appellant’s] case amounted to no more than arguments against the merits of the reasoning presented by the Tribunal for disbelieving the [appellant’s] history’, and his Honour accordingly dismissed the application for want of jurisdictional error.

GROUNDS OF THE PRESENT APPEAL

16                  In the Notice of Appeal filed in this Court on 4 March 2008 the appellant raised the following three grounds of appeal:

1.                  The Tribunal failed to consider the claims of my application because of the bias against me;

2.                  The Tribunal failed to consider my application in accordance with s 424A of the Migration Act1958 (“The Act”) notice [sic] in writing of particulars of information that formed part of the reasons for affirming the decision of the delegate; and

3.                  The Tribunal fell into jurisdictional error by not identifying itself as a Falun Gong practitioner. Even though I knew the name of the five main exercises of Falun Gong and could draw the symbol, the Tribunal found that I had only practiced and learned about Falun Gong in Australia.

THE CONTENTIONS

17                  At the hearing of this appeal before me the appellant appeared in person and was unrepresented. She was assisted by an interpreter. The appellant made oral submissions which essentially repeated the matters raised in her Notice of Appeal.

18                  Mr Cleary appeared for the first respondent.  Mr Cleary had earlier filed an outline of written submissions. He submitted that all of the appellant’s grounds of appeal are fresh grounds – none of them appeared in the application for judicial review before the Federal Magistrate.  He submitted that leave is therefore required to raise these fresh grounds and leave should not be granted because none of the grounds have any prospect of success.  Mr Cleary submitted that this was so because none of the grounds of appeal raised any error on the part of the Federal Magistrate, nor any jurisdictional error on the part of the Tribunal. 

19                  Furthermore, he submitted that each ground of appeal is independently defective. In relation to ground one, he submitted it is un-particularised and contained a bald assertion of bias on the part of the Tribunal, which is meaningless without particulars.  He submitted that any allegation of bias would have to be firmly and distinctly made and clearly proven: referring to Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J.  Mr Cleary submitted that the appellant has clearly not done so and this ground is therefore defective.

20                  In relation to ground two, Mr Cleary submitted s 424A of the Act was not enlivened in the present case because the Tribunal relied on the appellant’s evidence and country information both of which are excluded by s 424A(3) of  the Act and therefore this ground is defective.

21                  Finally, in relation to ground three, Mr Cleary submitted that the Tribunal’s findings about the appellant’s practice of Falun Gong were factual findings which were open to the Tribunal on the evidence before it. The findings were also based on adverse credibility findings the Tribunal made in relation to the appellant’s evidence.  He submitted that in those circumstances they could not amount to jurisdictional error such that this Court could review them, referring to Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 56. For these reasons, this ground is also defective.

CONSIDERATION 

22                  I agree with Mr Cleary‘s submissions for the reasons he has given.  In summary, none of these grounds of appeal was raised before the Federal Magistrate, none of them identifies any error on the part of the Federal Magistrate, none of them identifies any jurisdictional error on the part of the Tribunal and none of them is properly particularised such that it is possible to identify the true import of the ground.

23                  Even if any of these grounds of appeal could be considered, the failure to particularise grounds one and two, means that it is impossible to know what claims or information (respectively) the appellant is referring to such that this Court could begin to consider them.  Ground three has not identified any jurisdictional error on the part of the Tribunal, but rather seeks a de novo merits review of the appellant’s evidence about her practice and knowledge of Falun Gong which is clearly not permissible.

24                  For these reasons, none of the appellant’s grounds of appeal has any merit and this appeal must therefore be dismissed.

ORDERS

25                  On the question of costs, Mr Cleary submitted that should the first respondent be successful in this appeal, he sought an order for costs fixed in the sum of $2150.  He was given leave to file an Affidavit in accordance with Practice Note number 27 to prove the amount and has since done so.

26                  I therefore order that this appeal be dismissed and that the appellant is to pay the first respondent’s costs of this appeal fixed in the sum of $2150.

Associate:

Dated:         4 July 2008