SZNNX v Minister for Immigration and Citizenship

INTRODUCTION 1 This is an appeal from a decision of the Federal Magistrates Court given on 3 September 2009 dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal'). 2 The appellant is a citizen of the People's Republic of China ('China') who arrived in Australia on 10 October 2008. On 31 October 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. 3 A delegate of the first respondent refused the appellants' application for a protection visa on 1 December 2008. On 30 December 2008 the appellant applied to the Tribunal for a review of that decision. On 26 March 2009 the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a protection (Class XA) visa to the appellant. On May 2009 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. 4 The appellant claims to fear persecution by the Chinese authorities. In a statement which accompanied his protection visa application, the appellant claimed that his parents had experienced significant harm from the Chinese authorities, including being tortured during lengthy periods of detention. The appellant claimed to be afraid that the authorities would target him on the basis of his parents' Falun Gong activities. 5 On 13 November 2008 the appellant failed to attend an interview in connection with his protection visa application. On 1 December 2008, the delegate refused the protection visa application on the basis that on limited information before him the delegate was not satisfied that the appellant had substantiated his claims. 6 On 11 March 2009 the appellant attended a hearing before the Tribunal and gave evidence. The Tribunal's decision includes an account of the hearing, and it is apparent from that account that the Tribunal explored the appellant's claims in detail with him and put to him for his comment a number of concerns the Tribunal had with his evidence. 7 The Tribunal affirmed the delegate's decision determining that: (a) although there is some independent country information to the effect that family members of Falun Gong practitioners may be targeted by the Chinese authorities, the appellant did not have a well-founded fear of suffering any such persecution on that basis because, as a matter of fact, neither he nor his parents were Falun Gong practitioners; (b) to the extent that the appellant claimed to be a Falun Gong practitioner at the introductory level, his knowledge of Falun Gong was incommensurate with that of a genuine practitioner; (c) the appellant's evidence that his parents practised Falun Gong in a public park as late as October 2008 was inconsistent with independent country information, which indicates that there has been an absence of Falun Gong practice in parks since the Chinese authorities banned Falun Gong in 1999; (d) the appellant's willingness to leave his baby daughter with his parents when he travelled to Australia undermined his claims that his parents were under surveillance and at risk of being placed in detention again; (e) a letter submitted by the appellant's wife following the hearing, which repeated the appellant's claims, did not persuade the Tribunal of the veracity of those claims; (f) as the appellant's parents were not Falun Gong practitioners, neither they nor the appellant had experienced any difficulties with the Chinese authorities or any employers on that basis; (g) The appellant's conduct in travelling to Malaysia for a holiday in August 2008 and returning to China without having enquired about seeking protection in Malaysia led the Tribunal to conclude that the appellant did not hold any genuine fear of persecution at that time; and (h) accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations. 8 The Tribunal was not satisfied that there was a real chance that the appellant would be persecuted in China for any Convention reason if he returned. The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection (Class XA) visa.