FEDERAL COURT OF AUSTRALIA

SZLWO v Minister for Immigration and Citizenship [2008] FCA 1294

SZLWO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 988 OF 2008

GILMOUR J

20 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondents 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 against a judgment of a Federal Magistrate of 11 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 13 December 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

PROCEDURAL HISTORY

2                     The appellant is a citizen of China who arrived in Australia on 3 May 2007.  On 29 May 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural & Indigenous Affairs.  A delegate of the first respondent refused the application for a protection visa on 23 June 2007.  On 30 July 2007 the appellant applied to the Tribunal for a review of that decision.

3                     He made various claims in three written statements as well as in oral evidence before the Tribunal that he had been detained, interrogated and beaten by police in China owing to his practice of Falun Gong there.

THE TRIBUNAL DECISION

4                     The Tribunal found the evidence provided by the appellant in his three statements and at the hearing to be inconsistent.  The Tribunal found that the appellant was not a witness of truth and that he had fabricated his claims to support his application for a protection visa.  It accordingly did not accept any of his claims, including that he was, or is, a Falun Gong practitioner.

5                     The Tribunal also did not accept that the appellant had attended various Falun Gong public events in Australia as claimed, or that he would be persecuted if he returned to China because of his alleged involvement in these events.  

6                     The Tribunal did find that the appellant had a reasonable knowledge of Falun Gong, however it considered that the appellant had gained this knowledge since his arrival in Australia.  It was not satisfied that the appellant was engaged in the study of Falun Gong in Australia other than for the purpose of strengthening his protection visa application and therefore disregarded those activities under s 91R(3) of the Migration Act 1958 (Cth).

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

7                     Before the Federal Magistrate in his amended application the appellant relied upon two grounds:

1.                  The Tribunal, having accepted that the applicant has a good knowledge of Falun Gong, failed to consider whether the applicant will continue to practice Falun Gong in China and face persecution as a Falun Gong practitioner. In the circumstances, the Tribunal failed to [consider] an aspect of the applicant’s claims, giving rise to jurisdictional error.

2.         In the circumstances of the case, the Tribunal should have contacted the agent assisting the applicant and investigated the applicant’s claims that the agent had not properly set out his claims in the first and second statements provided to the Tribunal on behalf of the applicant. The Tribunal failure to do so gave rise to jurisdictional error.

8                     The Federal Magistrate considered the Tribunal’s finding that the appellant had not, practised Falun Gong in China prior to coming to Australia.  The Federal Magistrate found that the Tribunal correctly applied s 91R(3)(b) of the Act in disregarding the appellant’s involvement in the study of Falun Gong in Australia as the Tribunal was not satisfied that the appellant engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.  The Federal Magistrate found that, having determined this, there was no evidence before the Tribunal, beyond the appellant’s assertions, that required it to go further and determine whether there was a real chance that the appellant would be at risk of persecution for practising Falun Gong if he returned to China.

9                     The Federal Magistrate found that the Tribunal had plausible justification for not seeking to contact the appellant’s migration agent.  The Federal Magistrate noted that the Tribunal found inconsistencies between the appellant’s third statement which he had prepared himself and which he told the Tribunal was the “correct” statement and the evidence he gave at hearing.  Further, the appellant continued to use the agent even after making the claim that she had inaccurately prepared the first and second statements.  The Federal Magistrate stated that the Tribunal found the appellant’s claims overall lacked credibility and that the Tribunal put him on notice of the inconsistencies between the statements.  Consequently the Federal Magistrate did not accept the appellant’s assertion that this was one of those “rare and exceptional cases where the Tribunal acting reasonably would have made some further inquiry before making a decision”: Minister for Immigration and Citizenship v Le [2007] FCA 1318.

THE PRESENT APPEAL

10                  The notice of appeal raised the following grounds:

1.         The Tribunal did not carefully consider if I continue to practice Falun Gong if I were required to return to China, and whether there was a real chance I would be persecuted as a result.

2.         The Tribunal did not evidence or taking other further investigation in regarding to my complaint of the migration agent whom failure did her job properly

3.         The Tribunal did not evidence or other materials to justify the making of the decision

(Transcribed from the original without alteration or amendment)

11                  The first two grounds in effect repeat the grounds argued below.  They do not directly challenge the findings of the Federal Magistrate. 

12                  At the hearing of the appeal before me the appellant, who appeared in person, reiterated his grounds of appeal.  

REASONS

Ground 1

13                  The Tribunal did not accept the appellant’s claim that he was, or had been in China, a Falun Gong practitioner.  It so concluded on the basis of its credibility findings adverse to the appellant in respect of his claim to have practiced Falun Gong in China.  The Tribunal found that the appellant had gained knowledge of Falun Gong since his arrival in Australia.  However the Tribunal was not satisfied, as required by s 91R(3)(b) of the Act, that the appellant had engaged in the study of Falun Gong in Australia otherwise than for the purposes of strengthening his claim.  It correctly disregarded this conduct in arriving at its decision. 

14                  As the Federal Magistrate noted the relevant finding of the Tribunal was as follows:

In essence and for the stated reasons, the Tribunal is not satisfied that the applicant has been involved in any Falun Gong activities, or that he suffered or would suffer any of the claimed harm.

On the basis of the available information, the Tribunal is not satisfied that the applicant had suffered any Convention-related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future. 

Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention-related reason. 

15                  This finding, implicitly in effect, is a finding that the appellant would not practice Falun Gong should he return to China because he had not practised it in China before.  The finding was clearly open on the evidence and supported the consequent finding that there was no real chance should he return to China then or in the foreseeable future that the appellant would suffer Convention related harm. 

16                  No relevant error on the part of the Federal Magistrate is discernible in this respect.  This ground of appeal fails.

Ground 2

17                  The Federal Magistrate considered this ground in detail at [47]-[61].  The Federal Magistrate was of the opinion, applying Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 15 that there was no need for the Tribunal to contact the migration agent.  There was ‘plausible justification’ for this course.  This was because of the material inconsistencies between he appellant’s third statement and his oral evidence at the hearing; the appellant’s continued use of the agent after making the claim that the agent had inaccurately prepared the first two statements and his overall lack of credibility.  The appellant himself prepared the third statement.  He told the Tribunal at the hearing that it was the “correct” statement.  It makes no mention that he had been kicked and beaten when detained by Chinese police in January 2000.  In his oral evidence however he claimed that this had occurred.  The Tribunal also referred to his evidence that in 2005 he had returned from Australia to China despite what he said had previously happened to him at the hands of the Chinese police.  These matters, quite independently of its findings of inconsistencies between the first and second statements and between each of them and the third statement as well as his oral evidence were sufficient warrant for the Tribunal rejecting the appellant’s claims.  The Federal Magistrate did not accept at [61], correctly in my view, that this was a rare or exceptional case requiring the Tribunal, acting reasonably, to have made some further inquiry by contacting the migration agent before making its decision.

18                  This ground of appeal fails. 

Ground 3

19                  This ground was not raised in the Court below.  It is not particularised.  The Tribunal properly considered the appellant’s claims and made findings on the material before it, which were open to it.  The Tribunal reasons are set out in great detail and the Tribunal provided its reasons for rejecting the appellant’s claims to be a Falun Gong practitioner.  There is no substance in the appellant’s contention that there was no evidence to support the Tribunal’s decision.

20                  The appeal should be dismissed and the appellant should pay the first respondents costs.

Associate:

Dated:         20 August 2008