FEDERAL COURT OF AUSTRALIA

SZNDI v Minister for Immigration and Citizenship [2009] FCA 1447

SZNDI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 873 of 2009

MOORE J

9 DECEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondents' costs fixed in the sum of $2979.00

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

1                     This is an appeal against a judgment of a Federal Magistrate of 29 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 December 2008: SZNDI v Minister for Immigration & Anor [2009] FMCA 674.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant’s application for a protection visa.

background

2                     The appellant is a citizen of China who arrived in Australia on 6 June 2008. On 4 July 2008 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 on 30 August 2008.  On 21 September 2008 the appellant applied to the Tribunal for a review of that decision.

3                     Before the Tribunal, the appellant claimed to fear persecution in China for a Convention reason because of her practice of Falun Gong. She claimed that due to the Communist Party’s cruel treatment of Falun Gong practitioners she had worked to encourage people to withdraw from the Party, including printing and distributing material supporting Falun Gong causes.  She claimed that she gave Falun Gong materials to two senior members of the Communist Party and that they sent the material to the public security department of Shanghai Xin Yi Jinzhu Pharmaceutical Corporation which was her employer.  As a result, she was sent a final warning by the security department.  She claimed that had she been caught involving herself in Falun Gong activities again she would have been sent to gaol and tortured.  She claimed that she was placed under strict surveillance, was threatened and brain-washed.

4                     The appellant further claimed that she had participated in Falun Gong activities since her arrival in Australia.  She claimed that a photograph of her at a meeting was published online and that if she was forced to return to China she would be sent to gaol and tortured to provide information about the Sydney Falun Gong organisation.  She also claimed that she had telephoned her superiors at her former employer to announce that she had applied for a protection visa in Australia and to encourage them to join her.

the tribunal decision

5                     The Tribunal was not satisfied as to the credibility of the appellant’s claims to have been a Falun Gong practitioner in China. The Tribunal found that there were a number of inconsistencies and improbabilities in her evidence regarding the company’s knowledge of her Falun Gong activities and its response to this information, matters which were directly relevant to her claim to fear harm in China.  The Tribunal was not satisfied that the appellant had provided a credible account of the discovery of her illegal Falun Gong activity and the reaction to it by her employer, casting doubt over the credibility of her evidence in general.  The Tribunal further noted that the appellant’s evidence regarding her preparation and distribution of pamphlets was inconsistent with the evidence provided by her son, who appeared before the Tribunal as a witness.  The Tribunal did not accept the appellant’s explanation for this inconsistency, and said that it was not satisfied that her claims were credible in this regard.

6                     The Tribunal also considered the appellant’s activity in Australia, accepting that she had some involvement with the Falun Gong movement and its activities in Australia.  However, as it had found that the appellant had not ever practised Falun Gong in China, and given its concerns about her evidence, the Tribunal was not satisfied that the dominant purpose for her conduct was other than to strengthen her claims to be a refugee.  Therefore, the Tribunal disregarded her conduct in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act).

7                     The Tribunal was not satisfied that the appellant had a well-founded fear of persecution because of her alleged Falun Gong involvement or for any other Convention-related reason should she return to China in the reasonably foreseeable future, and affirmed the decision of the delegate.

the federal magistrates court

8                     On 12 January 2009 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  On 31 March 2009 the appellant filed an amended application claiming:  

1.                  The Tribunal found that “consistent with s 91R(3) [of the Migration Act] I have disregarded [the applicant’s conduct in Australia] in assessing her claims”. The Tribunal fell into jurisdictional error in relation to this finding.

2.                  The applicant provided corroborative evidence and witnesses in support of her claims. The Tribunal fell into jurisdictional error in dealing with the corroborative evidence.

3.                  The Tribunal found that it was “not satisfied that [the applicant] has provided a credible account of the discovery of her allegedly illegal Falun Gong activity and the reaction to it by her employer”. The Tribunal fell into jurisdictional error in making this finding.

4.                  One reason the Tribunal rejected the applicant’s claims was because of an alleged inconsistency between evidence given by the applicant and her son. The Tribunal fell into jurisdictional error in relation to the findings of inconsistency.

9                     As to ground 1, the Federal Magistrate did not accept the appellant’s contention that the consequences flowing directly from her conduct in Australia could be divorced from the conduct itself.  His Honour indicated that such an interpretation did not accord with the requirements of s 91R(3) of the Act, and he was satisfied that the Tribunal correctly disregarded the conduct of the appellant in Australia as required by the Act.

10                  As to ground 2, his Honour concluded that the Tribunal did consider all of the evidence, including the corroborative evidence of the appellant’s witness, Ms Peijun Lu, but could not be satisfied that the corroborative evidence outweighed its adverse view of the credibility of the appellant’s evidence.  His Honour noted the Tribunal had no obligation to test the evidence of Ms Lu or to make its own inquiries, and was satisfied that the Tribunal’s approach in this regard was correct.

11                  As to ground 3, the Federal Magistrate did not accept that the Tribunal made a finding based on claims that the appellant did not make, or that it had made a wrong finding of fact.  His Honour concluded that, having regard to the appellant’s statement supporting her application for review and her oral evidence to the Tribunal, there was evidence that the appellant did make the claim that many people in her company, including the management structure, were fully aware of her involvement in Falun Gong and not just her involvement in the campaign to persuade people to quit the Communist Party.  His Honour was also satisfied that the appellant’s statement in support of her visa application provided a basis for the Tribunal’s findings that the activities in which she had been involved were regarded as illegal.  

12                  Finally, his Honour was satisfied that there was an inconsistency between the evidence of the appellant and that of her son.  His Honour found that the Tribunal did not selectively misquote the appellant and noted that the weight given to any piece of evidence was a matter for the Tribunal.  His Honour found that, with reference to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, the failure of the Tribunal to put the evidence of the appellant to her son was not a breach of s 424A of the Act as ‘inconsistency’ does not constitute information for the purposes of s 424A.  

13                  Having found that the Tribunal decision was free from jurisdictional error, his Honour dismissed the application for review.

the current appeal

14                  On 17 August 2009 the appellant filed a notice of appeal which repeats, in substance, the grounds before the Federal Magistrate.

15                  In oral submissions before me the appellant stated that she wished to rely on these grounds, and alleged that the Tribunal failed to comply with the requirements of the Act, failed to deal with her application in a proper way, and incorrectly disregarded her corroborating evidence.  The appellant also reiterated her substantive claims for a protection visa.  As I endeavoured to explain to the appellant, the latter were not matters for this Court to consider or address.

16                  In my opinion, the Federal Magistrate was correct in reaching the conclusions he did, and for the reasons which his Honour gave. 

17                  No error on the part of the Federal Magistrate has been demonstrated.  Accordingly, the appeal should be dismissed. I also order that costs be fixed in the sum of $2979.00.

Associate:

Dated:         9 December 2009