SZHUF v Minister for Immigration and Citizenship[2007] FCA 1686

REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Magistrates Court on 5 July 2007, dismissing an application for review in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 19 October 2005 and handed down on 15 November 2005, which affirmed a decision of a delegate of the Minister not to grant a protection visa. The appellant is a national of the People's Republic of China who arrived in Australia on 1 May 2005 and shortly thereafter applied for a protection visa. A delegate of the Minister refused that visa in 2005 and the Tribunal affirmed that decision in November 2005. 2 The appellant's claims were based upon an adherence to Falun Gong and based upon events that she said had occurred in China before her leaving. These claims were set out in the reasons of the Tribunal. The Tribunal questioned the appellant, who appeared at the hearing, about Falun Gong and about aspects of her claims. The Tribunal concluded after that questioning that, while it accepted that the appellant was a citizen of the People's Republic of China, it did not accept that she was a Falun Gong practitioner, or that she was involved in Falun Gong activities in China as she claimed. The Tribunal did not accept the appellant as a witness of truth and did not accept that she had been questioned, detained and ill‑treated. 3 The Federal Magistrate set out in his reasons the extract from the Tribunal's reasons for coming to the conclusion that the Tribunal did as follows: The Tribunal considers that if the applicant were a genuine Falun Gong practitioner she would be able to tell the Tribunal more about Falun Gong and describe or name or demonstrate the Falun Gong exercises. She cannot do this when asked about the exercises by the Tribunal and stated that this was because she was not "that familiar" with Falun Gong. The Tribunal considers that if the applicant practised Falun Gong in China and in Australia she would be able to tell the Tribunal more about Falun Gong and generally explain/demonstrate the exercises to the Tribunal. The Tribunal also considers that if the applicant were a genuine Falun Gong practitioner and fled from China because she feared persecution there because of her involvement with Falun Gong as she claims she would have resumed regular practice of Falun Gong in Australia. The Tribunal does not accept that the applicant has practised Falun Gong in Australia for the reasons given above. Also in the Tribunal's view if the applicant were of interest to Chinese authorities and persecuted for Falun Gong activities as she claims she would not have been able to work over the least five years in the employment that she told the Tribunal about and live at her usual address in the family home where she stated she had lived for the last 10 years and where her husband and son still reside. 4 I should at this point say for the benefit of the appellant that neither the Federal Magistrate nor myself is charged with the responsibility of finding facts in her case. It is not our place to believe or disbelieve her evidence about what she put to the Tribunal. Therefore nothing that I say, and nothing the Federal Magistrate said, was a conclusion of each of us that the appellant was not a witness of truth. The responsibility for assessing the evidence of applicants for refugee status lies in the first instance on the Minister, through his or her delegate, and then the reviewing Tribunal. Those are the persons and that is the body with the responsibility of assessing the legitimacy of claims made by applicants for refugee status. What the Federal Magistrates Court does and what this Court does on appeal is to assess the legality of the approach of the Tribunal. Unless the Tribunal has approached its task in some fashion that is unlawful, findings of fact, including which witnesses to believe or not believe, are matters for the Tribunal. Given that the Tribunal came to the view that there was no plausible evidence before it, it could not be satisfied that the appellant was entitled to a protection visa. 5 In the Federal Magistrates Court, the appellant filed two documents by way of application. The first was an application filed on 9 December 2005 which cited three grounds of complaint about the Tribunal's decision, being: