FEDERAL COURT OF AUSTRALIA

SZMOF v Minister for Immigration and Citizenship [2009] FCA 827

MIGRATION – appeal from Federal Magistrate – no jurisdictional error – appeal dismissed

Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967, Art 1A(2)

Migration Act 1958 (Cth) s 424A, s 424A(1)

Craig v South Australia (1995) 184 CLR 163

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

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

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

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 18 ALR 407

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824

VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851

SZMOF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 357 of 2009

BARKER J

4 AUGUST 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is to pay the first respondent's reasonable costs as taxed, if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
            The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate of 8 April 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 24 June 2008.  The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship who formed the view that the appellant is not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (Convention) and accordingly refused to grant a protection visa on 10 December 2007.

CLAIMS MADE TO REFUGEE STATUS

2                     Article 1A(2) of the Convention relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it

3                     The appellant is a citizen of China who arrived in Australia on 14 October 2007.  On 26 October 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 10 December 2007.  On 10 January 2008, the appellant applied to the Tribunal for a review of that decision

4                     Before the Tribunal, the appellant claimed to fear persecution in China due to her practice of Falun Gong.  She claimed that she began practising Falun Gong in 2000.  In December 2004 she was arrested and detained until October 2005 after attending a demonstration against the government.  She was beaten and tortured in gaol because she would not denounce Falun Gong.  She was forced to pledge that she would not practise Falun Gong in China.  She claimed that she bribed officials to obtain a passport and visa before coming to Australia.

refugee review tribunal

5                     The Tribunal did not accept that the appellant was a genuine Falun Gong practitioner who had practised Falun Gong in China or Australia, as it did not accept that the appellant was a witness of truth.  The Tribunal found that the appellant's knowledge of Falun Gong was not commensurate with the period of time she claimed to have practised Falun Gong as well as inconsistencies both in her evidence to the Tribunal and between the evidence given to the Tribunal and her original protection visa application.  The Tribunal also noted that her evidence that she lived at the same address after being released from detention and left China on a passport in her own name was inconsistent with her claims to fear persecution and to be of adverse interest to the authorities.  The Tribunal consequently rejected all of the appellant's claims, stating that there was no plausible evidence before it that enabled it to conclude that the appellant was a genuine Falun Gong practitioner and would suffer any persecution.

6                     These above findings were based on the following:

·                    the appellant's inability to draw the whole Falun Gong symbol and her doubts about the fifth exercise were inconsistent with her claim to have practised Falun Gong for the period claimed (since 2000);

·                    the appellant's explanation that she needed to show that she was employed in order to obtain a visitor's visa did not explain why she continued to so claim in her protection visa application that she was employed until July 2006, yet she told the Tribunal at the hearing that she had been dismissed from employment at the time of being gaoled (December 2004).  The Tribunal rejected the appellant's further explanations (eg in her response to the s 424A of the Migration Act 1958 (Cth)  letter); and

·                    the appellant's claim that she was of interest to authorities in China and that local authorities were checking on her before she left China and that she was living in China after 2005 at her usual address with her family after her release from detention was not consistent with her claim that she left China on a passport in her own name issued in February 2007.  The Tribunal rejected her claim to have paid a bribe to leave the country or that her reason for leaving from a more remote location in China was to avoid problems from the authorities.

7                     The Tribunal therefore affirmed the decision under review.

FEDERAL MAGISTRATES COURT

8                     The application for judicial review filed in the Court below contained five grounds of review, which read as follows:

1.       There was no evidence or other materials to justify the making of the decision.

2.       The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

3.       The Tribunal member … not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.

4.       I really fear the persecution from my original country, PR China.

5.       The persecution is for the reason of a member of a particular group‑Falun Gong.  I was arrested and sent to jail just because I am a genuine Falun Gong practitioner.

9                     The Federal Magistrate found no jurisdictional error in the decision of the Tribunal, for the reasons explained below and dismissed the application.

appeal to this court

10                  On 28 April 2009, the appellant filed in this Court a notice of appeal from the decision of the Federal Magistrate, in which it is claimed that:

1.       There was no evidence or the other materials to justify the making of the decision.

2.       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.

3.       The Tribunal is required by s 424A 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.

Ground 1: There was no evidence or the other materials to justify the making of the decision.

11                  The appellant raised this complaint before the Federal Magistrate.  Her Honour noted that, in this case, the Tribunal's decision was based on its appraisal of the appellant's claims having regard to the visitor visa application, the protection visa application and her oral evidence to the Tribunal.  For the reasons it gave, the Tribunal found that the appellant was lacking credibility.

12                  Her Honour found that the appellant was unable to establish that the Tribunal's assessment of this evidence was not open to it for the reasons it gave.  In particular, it had not been established that the Tribunal made a finding that was a critical step in its ultimate conclusion for which there was no evidence in support in the manner considered in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 or that there was no evidence in relation to a jurisdictional fact or essential preliminary in the decision-making process (see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302).  The Federal Magistrate also referred to the discussion by Greenwood J in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] in relation to the limits of the no evidence ground.

13                  Her Honour found  (at [23]) that "the generally expressed contention in ground one of the application for review does not establish that this is such a case or that the Tribunal findings on credibility should on that basis be disturbed (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67])".

14                  In oral submissions at the hearing of this appeal the appellant contended, in effect, that the Tribunal's judgment was not fair.

15                  In my view, no error can be found in the above reasoning of the Federal Magistrate.  In essence, ground 1 and the appellant's oral submission invite the Court to undertake merits review – going beyond legal review – of the Tribunal's decision, which is not its function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.

16                  Ground 1 must fail.

Ground 2: 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.

17                  It does not appear that this claim was directly raised before the Federal Magistrate.  In any event, it is well settled that the choice of, and weight given to, independent information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 per French J at [27].  In this case, it cannot be said that the Tribunal relied on 'irrelevant material' (Cf Craig v South Australia (1995) 184 CLR 163).  In this case the Tribunal regarded relevant country information.  However, as noted above, the Tribunal's decision was based on its appraisal of the appellant's claims having regard to the visitor visa application, the protection visa application and her oral evidence to the Tribunal.  For the reasons it gave it found that the appellant was lacking credibility.

18                  Ground 2 must fail.

Ground 3: The Tribunal is required by s 424A 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.  

19                  The Tribunal wrote to the appellant pursuant to s 424A in a letter dated 7 March 2008. The particulars of the relevant information related to information contained on the departmental file.   On 1 April 2008 the Tribunal received a response from the appellant, which it took into account, but ultimately did not accept due to the inconsistencies in her evidence (see AB 70).  No error can be found in this regard.  Nor was there any other information which was required to be put to the appellant pursuant to s 424A.  The only information before the Tribunal was that contained in the departmental file, the delegate's decision, and that provided by the appellant for the purpose of the review.  Ultimately, the Tribunal found that the evidence given by the appellant was inconsistent, and that she was not a witness of truth.  It is well settled that the Tribunal’s thought appraisals of an applicant's evidence do not enliven the obligations under s 424A(1): SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609.

20                  In oral submissions at the hearing of the appeal, the appellant did not identify any particular information relied on by the Tribunal of which she was not given notice.

Other consideration

21                  No error of law can be otherwise detected in the decision of the Federal Magistrate.  Nor can any other jurisdictional error be detected in the decision of the Tribunal.  The Tribunal identified with particularity all of the appellant's claims and supporting material before it; explored her claims with her at a hearing; raised with the her the inconsistencies in her evidence and doubts over her claims (both at hearing and in the s 424A letter sent on 7 March 2008); made findings based on the evidence and material before it; and, applied the correct law to its findings in reaching its conclusion that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention.

conclusion and order

22                  In my opinion, the approach of the Federal Magistrate and her Honour's conclusions do not reveal appealable error.  Additionally, there is nothing to suggest the Tribunal committed any jurisdictional error.

The appeal should be dismissed with costs.

Associate:

Dated:         4 August 2009