SZLNY v Minister for Immigration and Citizenship

THE TRIBUNAL DECISION 5 The Tribunal was not satisfied that the appellant had been a Falun Gong practitioner in the PRC or in Australia. It found the appellant's oral evidence concerning her involvement with Falun Gong was 'vague, confused and variable' and did not reflect a personal or authentic knowledge of Falun Gong. 6 The Tribunal was not satisfied that if the appellant had been a genuine Falun Gong practitioner in the PRC and had fled the PRC because of that practice, the appellant would be prevented from practising Falun Gong in Australia because of work pressures. 7 As the Tribunal was not satisfied that the appellant was a Falun Gong practitioner the Tribunal was not satisfied that there was a real chance that she would suffer serious harm amounting to persecution in the PRC resulting from her practice of Falun Gong. 8 The Tribunal was not satisfied that the appellant had well-founded fear of persecution for any Convention Relating to the Status of Refugees 1951 reason. The Tribunal affirmed the delegate's decision to refuse to grant the protection visa to the appellant.

APPLICATION IN THE FEDERAL MAGISTRATES COURT 9 By application filed in the Federal Magistrates Court of Australia on 26 October 2007 the appellant sought judicial review of the Tribunal's decision. The application raised three grounds of appeal as follows: 1. The Refugee Review Tribunal made several judicial [sic] errors in making of the decision to refuse the applicant's application for a protection visa. 2. The Refugee Review Tribunal did not carefully consider the real situation in China in relation to Falun Gong practitioners. 3. The Refugee Review Tribunal did not adequately consider the pressures of work in Australia which the applicant must face. 10 Federal Magistrate Scarlett considered the first ground of review and noted that an adverse decision itself does not establish jurisdictional error. His Honour found that the first ground attempted to cavil with the merits of the Tribunal's decision and accordingly dismissed such ground. 11 In considering the appellant's second ground of review the Federal Magistrate found that such ground appeared to seek an impermissible merits review of the Tribunal's decision. His Honour nevertheless found that while the Tribunal had considered independent country information relating to the treatment of Falun Gong practitioners in the PRC, the Tribunal's rejection of the appellant's claims was based on its adverse finding relating to her credibility. 12 Scarlett FM found that the appellant's third ground of review sought to challenge the factual findings of the Tribunal. His Honour accordingly rejected such ground of review.

APPEAL TO THIS COURT 13 On 26 March 2008 the appellant filed a notice of appeal in this Court which raised three grounds of appeal as follows: 1. The Tribunal failed to carry out its statutory duty. 2. The Refugee Review Tribunal made several judicial [sic] errors in making of the decision to refuse the applicant's application for a protection visa. 3. The Refugee Review Tribunal did not adequately consider the pressures of work in Australia which the applicant must face.

FINDINGS 14 The first ground of appeal claims that the Tribunal failed to carry out its statutory duty. This ground was not raised before the Federal Magistrate. Accordingly, leave is required to raise such issue: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. In deciding whether leave should be granted, the relevant principle to be applied by the Court is whether it is expedient and in the interests of justice to allow the ground to be argued: see Iyer at [16]. Such consideration requires the Court to consider the merits of the ground raised: see Iyer at [24]. 15 In the absence of any particulars, the Court is satisfied that the ground has no reasonable prospects of success. The Court accordingly refuses to grant leave to the appellant to raise the first ground of appeal. 16 Ground two asserts that the Tribunal made errors in the making of its decision. No particulars are provided of the alleged errors. The appellant, by virtue of this ground, seeks to challenge the factual findings of the Tribunal. The Court has no jurisdiction to entertain a review of the Tribunal's factual findings: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392 per Mason CJ; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42. Accordingly, ground two of the notice of appeal is rejected. 17 The third ground of appeal alleges that the Tribunal 'did not adequately consider the pressures of work in Australia which the applicant must face'. Again, no particulars of this ground have been provided. Such ground was raised before the Federal Magistrate and the Court can find no error in his Honour's findings. Accordingly, this ground must also be rejected. 18 No jurisdictional error is apparent in the decision of either the Tribunal or of Scarlett FM. It follows that the appeal must be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 26 May 2008 Counsel for the Appellant: The Appellant appeared in person