SZGVW v Minister for Immigration and Citizenship [2007] FCA 675

FEDERAL COURT OF AUSTRALIA

SZGVW v Minister for Immigration and Citizenship [2007] FCA 675 SZGVW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 48 OF 2007

BESANKO J

4 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 48 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGVW

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. 3. The name of the first respondent be amended to "Minister for Immigration and Citizenship". 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 48 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGVW

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. The Magistrate dismissed an application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China. She arrived in Australia on 2 December 2004 and, on 7 January 2005, she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 21 February 2005 a delegate of the Minister refused to grant a protection visa to the appellant and, on 18 March 2005, the appellant applied to the Tribunal for a review of that decision. 3 The appellant gave evidence before the Tribunal. She said that she was born in Shenyang City, Liaoning Province in China. She said that she had become a Falun Gong practitioner under the influence of her parents. Her parents participated in protests against the Chinese Government when Falun Gong was banned and, as a result, they were arrested and detained for 15 days. The appellant claimed that she was also detained for six months during which time she was beaten with an electric rod, denied sleep and forced to sit on cement to study documents. She claimed that this treatment caused her to suffer from arthritis. The appellant said that once she was released, she decided to go overseas. She spent a lot of time collecting the money to travel overseas and she had to sell a house. 4 The Tribunal found that the appellant's evidence at the hearing was unsatisfactory and contradictory. The Tribunal member set out the details of the appellant's evidence and the way in which it was inconsistent. It is not necessary for me to set out the details. The Tribunal member asked the appellant a number of questions about her practice of Falun Gong. He said that her knowledge of Falun Gong was superficial. He said the following: "I would expect that a person willing for a belief to suffer six months of imprisonment and torture to leave behind her son and country would have been able to tell me a lot more about that belief." 5 The Tribunal member found that the appellant was not a practitioner of Falun Gong. He said that it followed that he did not accept that she was arrested, tried or convicted and sentenced to a period of re-education by reason of an affiliation with Falun Gong. He did not accept that she distributed Falun Gong pamphlets or came to the adverse attention of the Public Security Bureau for doing so. He did not accept that she had suffered harm amounting to persecution in the past for the reason that she practised Falun Gong or for any other reason and he did not accept that there was a real chance of her suffering harm amounting to persecution for that reason should she return to China in the foreseeable future. The Tribunal member concluded that the appellant did not have a well-founded fear of persecution in China for the reason of her political opinion, real or imputed, or membership of a particular social group or for any other Convention reason. 6 The Magistrate was unable to discern a jurisdictional error in the approach of the Tribunal member. I will refer to his reasons in the context of the grounds of appeal to this Court.