FEDERAL COURT OF AUSTRALIA

SZMBZ v Minister for Immigration and Citizenship [2008] FCA 1266

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412; [2006] FCAFC 61

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; [1994] FCA535

SZMBZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1116 of 2008

REEVES J

29 AUGUST 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 Orchiston delivered on 30 June 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was handed down on 19 February 2008 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 26 July 2007.  Nearly one month later, on 20 August 2007, after touring the east coast of Australia, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (‘the Department’).  A delegate of the first respondent refused that application on 28 September 2007.  The appellant applied to the Tribunal for a review of that decision on 29 October 2007.

3                     The appellant lodged a statement with her visa application which set out her claim to fear persecution in China on the basis of her Falun Gong practice.  The appellant claimed to have suffered two periods of detention, one lasting a year (after she claimed she had attended a protest in Beijing against the ban of Falun Gong in September 2000) and another lasting fifteen days (when she claimed she was detained in the Dalian Detention Centre after returning to Shanghai).  The appellant alleged that she was subsequently monitored and harassed by the Chinese authorities.  She further claimed that she only obtained a passport after paying a bribe in the sum of RMB100,000 (AUD150,000).

THE TRIBUNAL’S DECISION

4                     The appellant attended a hearing before the Tribunal on 13 December 2007.  The Tribunal’s Decision Record sets out the circumstances of persecution alleged by the appellant in the statement filed with her visa application and adopted by her at the hearing (and summarised in [3] above).  During the hearing, the Tribunal questioned the appellant and raised various concerns about her evidence, including her surprisingly limited knowledge of Falun Gong and, in particular, the name and contents of the main text of Falun Gong and what “Falun” represented.  During this questioning, the appellant said she did not wish to continue with the hearing and that she had something else to do.  However, after some discussion about the consequences for her application if she did not continue with the hearing, the appellant eventually agreed to stay and complete the hearing.

5                     According to the Tribunal’s Decision Record, the Tribunal also questioned the appellant and raised concerns it had about a number of other matters including:

(a)        Her practice of Falun Gong in Australia;

(b)        Her practice of Falun Gong in China;

(c)         The circumstances of her claimed detention in the Dalian Detention Centre for 15 days;

(d)       The fact that her claims about her detention for 15 days in Dalian were identical to that of a past application for a protection visa filed with the Department;

(e)        The fact that other aspects of her claims were very similar to another application for a protection visa that had been filed with the Department some years ago - including her claim of having been detained for one year;

(f)        Her claim of having paid a bribe to get a passport and the statement that she arrived in Australia on 15 April 2004;

(g)        That she had not mentioned her claimed one year detention in the relevant part of her visa application form; and

(h)         Despite her claim - to have been detained in 2001 and 2002 and her fear of persecution as a consequence – the fact that she did not leave China until 2007.

6                     The Federal Magistrate aptly summarised the Tribunal’s Findings and Reasons in relation to the appellant’s claims as follows (at [18] – [23] of [2008] FMCA 882):

‘The Tribunal was not convinced that the applicant was a Falun Gong practitioner because she displayed a scant knowledge and lack of confidence when discussing Falun Gong concepts.

The Tribunal also found that the applicant was not a Falun Gong practitioner due to her lack of involvement with any Falun gong practitioners in Australia.

The Tribunal concluded that the applicant copied and hence fabricated her claimed detainment in the Dalian Detention Centre, people harassing her and breaking into her home, and that she was not detained in Dalian or anywhere else.  On this basis, it concluded that the applicant was not a credible witness.

The Tribunal rejected the applicant‘s claim to have travelled to Beijing to protest about Falun gong.  It also considered that she fabricated her claim in relation to bribing an official to issue a Chinese passport to her.

The Tribunal did not accept that the applicant would have any association with Falun Gong, nor that she would be motivated to learn about or develop an interest in Falun Gong, if she were to return to China.

For these reasons, the Tribunal was not satisfied that:

the applicant has a well-founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if she returns to China.  The Tribunal is not satisfied that the applicant is a refugee …

THE FEDERAL MAGISTRATE’S DECISION

7                     In her application for judicial review filed in the Federal Magistrates Court, the appellant claimed:

1.                  The Refugee Review Tribunal rejected the [appellant’s] claimed involvement in Falun Gong in China without considering all of the information the [appellant] provided.

2.                  The Refugee Review Tribunal had no reason not to accept that the [appellant] would have an association with Falun Gong should she return to China.

8                     The appellant appeared at a hearing before Federal Magistrate Orchiston on 13 June 2008 and gave evidence, but she did not provide the Court with a transcript of the hearing before the Tribunal.

9                     In relation to ground one, the Federal Magistrate began by observing that the appellant had failed to provide any particulars of the information which she said the Tribunal had failed to consider.  Nonetheless, her Honour reviewed the Tribunal’s Decision Record and concluded that:

‘I consider that the Tribunal’s finding of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims concerning her involvement in Falun Gong; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings.’

10                  Before reaching this conclusion, her Honour referred to various relevant authorities including: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

11                  In relation to ground two, the Federal Magistrate stated that the appellant “appears to be asserting that the Tribunal was obliged to accept her contention that she would have an association with Falun Gong if she returned to China, in the absence of evidence to the contrary”.  On this aspect, her Honour referred to various authorities to the effect that: the concept of onus of proof was not appropriate to the Tribunal’s task (Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275); that the Tribunal’s process is an inquisitorial one and it is a matter for the respondent to put whatever evidence or argument she wished before the Tribunal (Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61); that the Tribunal was not required to make the applicant’s case for her (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63); and that the Tribunal was not required to accept uncritically any and all allegations or assertions made by the appellant (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 535). 

12                  Based on her review of the relevant authorities, her Honour found that the Tribunal was not required to accept uncritically any and all of the claims advanced by the appellant. Rather, the appellant was required to “advance [any] such evidence or argument which would have enabled the Tribunal to reach the requisite state of satisfaction on this matter”.  Further, the Tribunal was entitled to reject her claims on credibility grounds and, on that basis, to find that she would not practise Falun Gong in China if she were to return there.  Her Honour concluded that this was a finding of fact that was open to the Tribunal on the evidence before it and that by challenging it, the appellant was effectively seeking to have the Court engage in a merits review of the Tribunal’s decision, which was not open.

13                  Her Honour therefore dismissed the appellant’s application for want of jurisdictional error.

GROUNDS OF THE PRESENT APPEAL

14                  The notice of appeal filed in this Court on 17 July 2008 raised three grounds which can be summarised as follows:

1.                  The appellant meets the refugee criteria as she was prosecuted by the Chinese Government.

2.                  The Tribunal had no reason not to accept that the appellant would have an association with Falun Gong should she return to China.

3.                  The appellant faces a risk of being jailed if she returns to China. 

Grounds one and three (above) clearly purport to raise matters that were not raised before the Federal Magistrate.  Ground two is identical to the second ground agitated before the Federal Magistrate.

THE CONTENTIONS

15                  At the hearing of this appeal before me on 27 August 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Nandagopal appeared for the first respondent.  The appellant made a number of oral submissions, none of which advanced the matter beyond a series of criticisms of the Tribunal’s decision and its failure to believe her.  When I asked the appellant why she should be permitted to raise grounds one and three before me, when she had not raised those matters before the Federal Magistrate, her response was to the effect that she did not know anything about the process.

16                  Ms Nandagopal essentially relied upon the outline of written submissions that had earlier been filed on behalf of the first respondent.  In summary, in those submissions the first respondent submitted:

a.                   It was not in the interests of justice that grounds one and three of the notice of appeal, should be raised before this Court for the first time, particularly where those grounds had no prospect of success.

b.                  In any event, both grounds one and three seek to have the Court conduct an impermissible merits review of the Tribunal’s decision.

c.                   In relation to ground two, the appellant has not provided any particulars of the alleged error on the part of the Federal Magistrate in dismissing this ground.

d.                  In any event, ground two also seeks to have this Court conduct an impermissible merits review of the Tribunal’s decision.

CONSIDERATION

17                  The fact that grounds one and three seek to raise matters that were not agitated before the Federal Magistrate is probably the least of the many deficiencies in the appellant’s grounds of appeal.  More fundamentally, the grounds do not attempt to identify any error in the Federal Magistrate’s judgment and instead they seek to challenge the Tribunal’s findings of fact, rather than attempting to identify any alleged jurisdictional error made by the Tribunal.  It hardly needs to be said that these deficiencies are antithetical to the purpose of any appeal from the Federal Magistrates Court to this Court and, more generally, to the process of judicial review under the Act.  In my opinion, grounds one and three therefore have no prospect of success and should not be permitted to be raised before this Court for the first time.

18                  As to ground two, in my opinion, the approach of the Federal Magistrate and her Honour’s conclusions in relation to the identical ground of review before her, are correct and accord with the authorities to which she referred.  Among other things, I consider that her Honour was correct in concluding that the Tribunal had rejected the appellant’s claims to fear persecution from the practice of Falun Gong if she were to return to China, because the Tribunal did not believe the appellant was a genuine Falun Gong practitioner, based upon its assessment of her claims and her credibility.  Further, I consider her Honour was correct in concluding that these findings were findings of fact that were open to the Tribunal on the evidence and materials before it and therefore did not involve any error, let alone any jurisdictional error.

ORDERS

19                  For these reasons, this appeal must be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         29 August 2008