SZKHQ v Minister for Immigration and Citizenship [2007] FCA 2041

FEDERAL COURT OF AUSTRALIA

SZKHQ v Minister for Immigration and Citizenship [2007] FCA 2041

SZKHQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1651 OF 2007

DOWSETT J

20 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1651 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKHQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 20 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the Refugee Review Tribunal be joined as a respondent to the appeal; 2. the Minister for Immigration and Citizenship will hence forth become the first respondent and the Refugee Review Tribunal will become the second respondent; 3. the application be dismissed; 4. the appellant pay the first respondent's costs of the appeal fixed at $2,000.00. 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 1651 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKHQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE: 20 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 5 May 2006. On 16 June 2006 he applied for a protection visa. A delegate of the first respondent (the "Minister") refused this application, and the appellant applied to the second respondent (the "Tribunal") for review of that decision. That application was unsuccessful. The appellant then applied to the Federal Magistrates Court for review. The Federal Magistrate's refusal of his application is the subject of the present appeal. 2 The appellant claims that since coming to Australia he has sent to his mother in China certain material concerning the practice of Falun Gong. His mother is 78 years old and allegedly practises Falun Gong. She believes that it provides relief from pain. Prior to the appellant's coming to Australia his mother had been arrested and detained in connection with her practice of Falun Gong. She was released. The appellant is concerned that should he return to China he will be persecuted because of his conduct in sending Falun Gong material to his mother. There was also some suggestion that the appellant fears persecution because he, himself, practises Falun Gong. In his original application he asserted that he had left China because he had been persecuted for his Falun Gong activities. However, at the Tribunal hearing, he said that he had not been a practitioner of Falun Gong prior to leaving China. He indicated that although he was interested in Falun Gong, his involvement with it in Australia had been strictly limited. 3 The Tribunal rejected his claim that he sent Falun Gong material to his mother. It considered that it was improbable that he would have sent such material to her, exposing both of them to the risk of persecution in the event that his action was detected as, indeed, according to him, it was. The Tribunal also concluded that it was unlikely that he would practise Falun Gong in the future. This was based upon the fact that he seemed to have demonstrated, at best, a very limited interest in it since his arrival in Australia where its practice is not prohibited. 4 In his application to the Federal Magistrates Court the appellant's grounds for seeking review of the Tribunal's decision were: '1. The appellant collected the Falun Gong materials … from the Falun Gong stall in China Town of Sydney, only having a look at them briefly. His mother is a Falun Gong adherent therefore he though they would be the most valuable presents for her brought from Australia. The Tribunal rejected the fact and fell into jurisdictional error; 2. The appellant's mother was taken to the local police branch and tortured. The Tribunal member didn't accept that he would put his mother at risk. The appellant originally certainly didn't want to put his mother at risk by sending her Falun Gong materials. The Tribunal member fell into jurisdictional error in the manner in which it dealt with this matter. 5 Before the Federal Magistrate the appellant also alleged that the Tribunal was unreasonable in not believing that he had sent documents to his mother. The Federal Magistrate concluded that the Tribunal's decision was reasonably open to it and did not demonstrate jurisdictional error. 6 In his notice of appeal to this Court the appellant asserted the following grounds: 'The appellant sent documents to his mother in China which had been intercepted by the Public Security Bureau which led [to] his mother being detained for three days as a result of which he was told to stay in Australia and not return to China. The member of Refugee Review Tribunal didn't accept the fact. The member made an error in finding his finding. Unfortunately Federal Magistrate Cameron FM agreed with the decision. The Federal Magistrate Cameron FM erred in his finding.' 7 There was more than adequate evidence to lead the Tribunal to doubt the accuracy and reliability of the appellant's claims. It is not my function to form a view as to whether he was telling the truth or not. The primary thrust of his oral submissions before me has been that he was truthful in his claims. That was a question for the Tribunal. No jurisdictional error has been identified. It follows that the Federal Magistrate was correct to refuse relief. 8 The appeal must be dismissed. I order that the appellant pay the respondent's costs of the appeal fixed at $2,000. I order that the Refugee Review Tribunal be joined as a respondent to the appeal. I note its submitting appearance. The Minister for Immigration and Citizenship will henceforth be described as the first respondent and the Refugee Review Tribunal, as the second respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.