SZFTM v Minister for Immigration and Citizenship [2007] FCA 644

FEDERAL COURT OF AUSTRALIA

SZFTM v Minister for Immigration and Citizenship [2007] FCA 644 SZFTM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 191 OF 2007

BESANKO J

4 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 191 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFTM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE OF ORDER: 4 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. 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 191 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFTM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 4 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate. On 2 February 2007 the Magistrate dismissed the appellant's application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). On an application for review, the Tribunal had affirmed a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant a protection visa to the appellant.

The facts 2 The appellant is a national of the People's Republic of China. He arrived in Australia on 22 January 2004. On 3 February 2004 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 9 February 2004 a delegate of the Minister refused to grant a protection visa to the appellant. On 15 March 2004 the appellant applied to the Tribunal for a review of that decision. 3 The appellant made a number of claims which were accepted by the Tribunal in the sense that it made findings in the appellant's favour. I will summarise those findings. The appellant was a Falun Gong practitioner in China. The Falun Gong does not have a hierarchy and the appellant played no organising role within it. The appellant and his family lived in the Namkai District of Tianjin and, at least until 2000, many practitioners of Falun Gong lived in this district and were closely monitored by the Public Security Bureau ("PSB") after the practice of Falun Gong was banned in 1999. 4 The appellant was briefly detained by the authorities in 1999. He signed an undertaking not to practise Falun Gong and he was required to pay a fine. 5 The appellant was not formally dismissed from his employment in a state-owned Tianjin grinding machine factory until 2003. However, he was not paid a full wage from 1997 because of financial problems experienced by the business, and he was not given any work after 1999. He obtained temporary employment in a hotel in 1997 and, subsequently, in various other workplaces. 6 In 2000 the appellant was told by the Street Committee in the Namkai District to attend classes every day and "say Falun Gong was no good" and not practise Falun Gong. The appellant attended a class on one occasion and then stopped and he suffered no punishment as a result of doing that. 7 The appellant was not subjected to any physical ill-treatment during his contact with the PSB in 1999 and he was not subsequently subjected to any physical harm because of the perception or knowledge that he practised Falun Gong. 8 The appellant was not detained or seriously harmed or harassed during his last four years or so in China and he was able to obtain a passport in his own name to leave and re‑enter China without coming into conflict with the authorities. 9 Apart from using a false document from a different workplace, the appellant followed the normal procedures to obtain a passport which meant, according to information accepted by the Tribunal, that he provided his genuine ID card and household registration papers (Hukou) to the Entry and Exit Bureau of the Ministry of Public Security. He was issued with a passport in his own name and he fell into none of the categories of citizens who were not allowed to leave China. 10 Over the years, the appellant was subjected to some discriminatory treatment because he had practised Falun Gong and this treatment involved difficulty in gaining permanent employment. 11 In addition to these findings, the Tribunal found that the appellant was not regarded by the authorities as a significant practitioner of Falun Gong, and the problems he had with the authorities were very minor in comparison with the serious punishment meted out to some practitioners of Falun Gong. The appellant did not modify his conduct in relation to his practise of Falun Gong. He did not change his practise and, if he continued to do the exercises, he did them at home as he had chosen to do before the practice of Falun Gong was banned. After attending one self-criticism "class" he simply stopped going, a decision which, despite his claim to have been fearful at the time, reflected some confidence that he would not suffer any adverse consequences. The same may be said of the appellant's decision to re-enter China in 2003 after travelling to several countries. The Tribunal found that the appellant did not modify his practise of Falun Gong or any related conduct because of a threat of harm.