SZFCL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1107

FEDERAL COURT OF AUSTRALIA

SZFCL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1107

MIGRATION – no issue of principle SZFCL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 787 OF 2005 CONTI J 11 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 787 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFCL

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 11 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to pay the respondent's costs assessed at $2,500.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 787 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFCL

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 11 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

The appellant's claims and the Tribunal's decision 1 This is an appeal from the orders and reasons for judgment of Federal Magistrate Scarlett, made and given on 4 May 2005 that dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 4 November 2004. The Tribunal affirmed the decision made by a ministerial delegate on 28 May 2004 refusing the appellant's application for a protection (Class XA) visa. 2 The appellant is a citizen of Hong Kong who arrived in Australia on 21 April 2004. In her written statement attached to her protection visa application, the appellant claimed that she had left Hong Kong because of her 'political opinions' and because of her involvement in Falun Gong activities for which she had been allegedly placed by Chinese authorities on a 'black list'. The appellant also complained of suffering unemployment 'for a long time' whilst in Hong Kong and not having freedom of 'political opinions'. She repeated those Falun Gong claims in a short written statement contained in her application to the Tribunal for review of the delegate's decision. 3 The appellant attended a hearing held before the Tribunal on 5 October 2004, during which she gave oral testimony which is recorded in the Tribunal's reasons for decision. The Tribunal asked the appellant why she had left Hong Kong. The appellant replied that she left due to her unemployment and her inability to find work, as well as because of a fear that she was 'not safe because her life was threatened'. The appellant told the Tribunal that the threat to her life came from the heightened risk of her being robbed and beaten in the streets of Hong Kong following its reunification with China, which was said to have led to an influx of people arriving in that territory from China. The Tribunal recorded that at one point in the hearing, the appellant denied that she had ever been detained, arrested or subject to any physical harassment in Hong Kong or China, yet the appellant then claimed to have been arrested for her Falun Gong activities. When asked to explain the inconsistency in those responses, the appellant stated that she had not been arrested, but that she had escaped from the Chinese authorities who tried to arrest her. The Tribunal asked the appellant when it was that she left China, and the appellant replied that she had done so in 1996. The Tribunal then put to her country information to the effect that Falun Gong was not banned in China until 1999. The appellant contended that the Chinese authorities had secretly prosecuted members prior to that date. In relation to her stay in Hong Kong, the appellant claimed that she had not practised Falun Gong during that time because she had been too afraid of possible arrest. The Tribunal found that the appellant did not have a well-founded fear of persecution for practising Falun Gong in Hong Kong, in light of independent country information about the Hong Kong Basic Law that provided for freedom of religion, and because the appellant was not a Falun Gong practitioner. 4 The Tribunal also investigated the appellant's other claim that she was at risk of persecution for her 'political opinions'. The appellant did not elaborate upon the claim in any way whatsoever. 5 The Tribunal found that the appellant was not a person to whom Australia owed protection obligations. In respect of the appellant's general claims about the economic and social situation of Hong Kong, the Tribunal found that those lacked the necessary Convention nexus. The Tribunal expressed numerous concerns about the appellant's claim to fear persecution by reason of being a Falun Gong practitioner, for instance her failure to advance that claim until specifically asked about it by the Tribunal during the hearing, and because of her admitted failure to have suffered any persecution in Hong Kong by reason of her decision not to practise Falun Gong since 1996. The Tribunal also did not accept the appellant's claims to have suffered persecution for her political opinions, first because she did not elaborate sufficiently upon those claims (thus implying that the appellant did not have any), and secondly on the basis of independent country information detailing the relative freedom of political expression prevailing in Hong Kong, as opposed to mainland China.