SZJKE v Minister for Immigration and Citizenship [2007] FCA 796

FEDERAL COURT OF AUSTRALIA

SZJKE v Minister for Immigration and Citizenship [2007] FCA 796 SZJKE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD615 OF 2007

COLLIER J

23 MAY 2007

BRISBANE (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD615 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJKE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J DATE OF ORDER: 23 MAY 2007

WHERE MADE: BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD615 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJKE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE: 23 MAY 2007

PLACE: BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Turner FM of 23 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 11 August 2006 and handed down on 31 August 2006. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

Background 2 The appellant is a citizen of the People's Republic of China ("PRC") who arrived in Australia on 6 February 2006. On 15 March 2006 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 for a protection visa on 3 May 2006. On 5 June 2006 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed to have well-founded fear of persecution by the authorities because she was a Falun Gong practitioner. The appellant provided a statement attached to her protection visa application which expressed her claims. In that statement, she claimed she had commenced practicing "six years ago" (from the date of application which was March 2006) and that she would practice in secret along with her group. The appellant claimed that in May 2002 she was required to report to the police station and from that time was forced to go there every week. The appellant claimed that when the PRC government realised that such penalties had no effect they began to put practitioners in gaol. The appellant claimed that in 2004 friends assisted her to obtain a passport and she came to Australia in 2006. 4 In her application to the Tribunal, the application attached a more detailed statement of her claims. She provided similar claims to her protection visa application, providing further details, but also gave details of further incidents. She claimed to have practiced Falun Gong since February 1999 to improve her health. She claimed that on 15 March 2000 the local police ordered the appellant to attend a "brainwashing session" and she was released after signing a guarantee that she would stop practising Falun Gong. The appellant claimed she did so under threat of being sent to a labour reform camp. She claimed that as a result of the stress and fear, her child was born premature and she could not breastfeed her child. 5 By letter dated 23 June 2006, the Tribunal invited the appellant to a hearing scheduled for 19 July 2006. The appellant attended the hearing and gave oral evidence with the assistance of an interpreter. She provided to the Tribunal her passport, photographs in support of her claims, and a statutory declaration dated 14 July 2006 by a third party which stated: I began to meet [the appellant] on Thursday evenings at Camperdown more than one month ago, where we read "Zhuan Falun" book and share experiences together. She also demonstrates in front of Chinese official buildings in Sydney on Sunday morning. She also took part in anti-torture exhibition in Canberra. 6 After the hearing the Tribunal presented the appellant a letter pursuant to s 424A Migration Act 1958 (Cth) ("the Act"), dated 19 July 2006, which outlined contradictions and inconsistencies between the initial protection visa application and information presented at the hearing as well as outlining similarities with a statement of claim previously submitted to the Department on behalf of another appellant. On 28 July 2006 the appellant provided a response to this letter which explained the process by which the protection visa was completed, namely that the appellant provided her claims to her migration agent who completed the application for her.