SZILK v Minister for Immigration and Citizenship [2007] FCA 185

FEDERAL COURT OF AUSTRALIA

SZILK v Minister for Immigration and Citizenship [2007] FCA 185 SZILK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1825 OF 2006

SIOPIS J

23 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1825 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZILK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 23 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to 'Minister for Immigration and Citizenship'. 2. The appeal is dismissed. 3. The appellant is to pay the first respondent's costs. 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 1825 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZILK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 23 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered 30 August 2006dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 11 January 2006 that was handed down on 31 January 2006. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China ('China'). On 27 May 2005, the appellant lodged an application for a protection visa on the basis of a claim to have a well‑founded fear of persecution as a Falun Gong practitioner. On 18 August 2005, the delegate refused the appellant's application. The Tribunal 3 On 12 September 2005, the appellant sought review before the Tribunal. The appellant appointed a new migration agent and submitted to the Tribunal a statutory declaration dated 12 December 2005 which asserted the appellant's identity was different to that disclosed in the appellant's passport and protection visa application. In her statutory declaration, the appellant also set out a different basis for her claim. The appellant relied on the fact that she was a practitioner of Tien Tao as the basis for her well‑founded fear of persecution if she were to return to China. Her claims were that she attended small gatherings with other followers of Tien Tao, organised by the leader of the group, Mr He, and in February 2005 was questioned by the Public Security Bureau ('PSB') in Fujian province, and was beaten and detained by the PSB. The appellant claimed that the PSB denounced her as being involved with an illegal religious organisation. The appellant said that the PSB asked her to act as a bait to capture Mr He. The PSB inquired every day about Mr He. The appellant became scared and escaped to a friend's place. The appellant's parents told her that there was a warrant of arrest issued against her. 4 At the hearing, the appellant, in response to questions from the Tribunal, gave extensive evidence about the circumstances surrounding the making of her initial claim that she feared persecution on the grounds of being a Falun Gong practitioner, and her entry into Australia on a passport, which described her identity differently. The appellant said that it was her previous migration agent who had advised her to make the claim in those terms. The agent had written the claim for her and the appellant had hand‑copied the claim and signed it. The appellant had advised that migration agent that her true identity was different. However, the appellant said that she had not told the previous migration agent that she was an adherent of Tien Tao. The appellant said that the reason for not doing so, was that she did not want to use Tien Tao as a vehicle for seeking asylum. 5 After the Tribunal hearing the appellant submitted an original Chinese identity card in the name she now claims is her true name. The appellant also submitted a statutory declaration by an Australian resident, who deposed to being a member of a congregation of Tien Tao at Campsie, Australia. The deponent went on to say that the appellant was baptised into the congregation on 12 August 2005 and since then she had participated in weekly public services. The statutory declaration was sent to the Tribunal under cover of a letter from her migration agent which said: 'We are acting as the Migration Agent and instructed to provide further documentary evidences in relation to some issues arising from the Tribunal's hearing dated on 19 December 2005 as follows:‑ o Statutory Declaration from [the deponent] who is a believer of Tien Tao and the indicator of the applicant. o Photos taken at [the congregation]. o Original copy of the applicant's Chinese ID Card.' 6 The Tribunal was satisfied the appellant was a national of China but said that it was 'unable to establish [the appellant's] identity with confidence'. The Tribunal referred to the passport on which the appellant had entered Australia, being in one name, and an original Chinese identity card, being in another name. The Tribunal referred to country information which disclosed that the incidence of official corruption and document fraud was widespread in China, and said that it could not, therefore, rely upon either document as 'conclusive evidence' of the appellant's true identity. 7 The Tribunal accepted the appellant had participated in Tien Tao in Australia, but did not accept the appellant was a Tien Tao practitioner in China or that she was harmed or harassed by Chinese authorities on the basis of being a practitioner of Tien Tao. The Tribunal gave four reasons for this finding. Firstly, the appellant did not mention the claims before the Tribunal to her first migration agent. The Tribunal said that the fact that the appellant had not given truthful biographical details did not reflect well on the appellant's frankness and truthfulness. Secondly, the appellant did not mention the crackdown on Tien Tao practitioners in Fujian province by the PSB to other practitioners in Australia. Thirdly, the statutory declaration provided in support of the appellant's claims after the hearing, did not mention that the appellant was a practitioner of Tien Tao in China and consequently, apart from the appellant's own assertions, there was no evidence before the Tribunal that the appellant had been a Tien Tao practitioner in China. Finally, the appellant's explanation for not contacting Mr He, who was said to reside in Hong Kong, was vague and implausible. 8 Although the Tribunal accepted that the appellant had engaged in the practice of Tien Tao in Australia, the Tribunal considered that s 91R(3) of the Migration Act 1958 (Cth) ('the Act') applied to that activity. The Tribunal was not satisfied the appellant had a well‑founded fear of persecution within the meaning of the Convention. The Federal Magistrate 9 Before the Federal Magistrate, in an amended application filed on 23 June 2006, the appellant raised three grounds of review. 10 Firstly, the appellant claimed the Tribunal misunderstood the appellant's claims, ignored important issues and made mistakes in relation to important findings of fact. 11 Under this ground, the appellant challenged the Tribunal's finding that it was uncertain as to the appellant's identity. The appellant contended that the Tribunal should have made inquiries as to her true identity. The Federal Magistrate found the Tribunal was under no obligation to investigate the material presented by the appellant by making further inquiries. Further, the Federal Magistrate did not consider the information as to the appellant's true identity played a material part in the Tribunal's decision. As to the other challenges made under the first ground of review, the Federal Magistrate characterised those challenges as being challenges to the Tribunal's factual findings, which did not disclose jurisdictional error. 12 The second ground alleged the Tribunal failed to comply with s 424A(1) of the Act. The Federal Magistrate identified the failures relied upon by the appellant as being the Tribunal's failure to give particulars of country information regarding corruption and fraud in China, and the failure to give particulars of the fact that the statutory declaration by the Australian Tien Tao practitioner, did not refer to the appellant's participation in Tien Tao in China. There was also a general complaint that the Tribunal did not put to the appellant its particular concerns which eventually caused it to decline to accept the truth of her claim to have been a Tien Tao practitioner in China. 13 The Federal Magistrate held that the country information and the information in the statutory declaration fell within the exemptions in s 424A(3)(a) and s 424A(3)(b) of the Act, respectively. Furthermore, said the Federal Magistrate, the Tribunal was under no obligation to disclose to the appellant its reasoning processes. There was no breach of s 424A of the Act.