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[2011] FCA 142
Federal Court of Australia
2011-02-24
Siopis J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China who arrived in Australia on 21 December 2009 on a visitor's visa. On 30 December 2009, the appellant lodged a protection visa with the Department of Immigration and Citizenship. 2 In her protection visa application, the appellant claimed that she began to learn to practise Falun Gong in July 1994 after she met a young girl who told her that practising Falun Gong had helped her to recover from an illness. She claimed to have continued this practice until 1999, when the authorities warned her practice group to cease their practise or face arrest. The appellant said that she felt that this threat was unfair, and protested at the Taonan Municipal Government office in September 1999. The appellant said that as a consequence, she was arrested with other practitioners and detained in Taonan City Yongkang Police Station for two days. After refusing to sign a declaration not to practise, she was transferred to Heizuizi Women's Force Labour Camp for one year. The appellant claimed to have been abused and tortured while at the camp. The appellant also claimed that she had to report to the police every week and she and her family were harassed by the local law enforcement officers. 3 The appellant claimed that she had not practised Falun Gong since 1999, but that she had been trying to flee China since 2007. In order to obtain a passport, the appellant said that she had to pay $10,000 to a government official. The appellant said that she feared that she would be arrested by the government again if she was to return to China. 4 On 20 April 2010, a delegate of the first respondent refused the appellant's application for a protection visa.
the tribunal 5 On 21 May 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate's decision. The appellant attended a hearing before the Tribunal with the assistance of a Mandarin interpreter. The hearing took place on 12 August 2010. The appellant gave evidence. 6 In addition to giving evidence about what had occurred in China, the appellant also stated at the hearing that she had practised Falun Gong once since she had arrived in Australia. 7 The Tribunal found that the appellant had not given credible or truthful evidence about her claims. The Tribunal rejected the appellant's claims that she had practised Falun Gong for five years in China, that she had been arrested and tortured, kept in a labour camp for one year and that she had been required to report to the police after her release. 8 In rejecting the appellant's claims, the Tribunal had particular regard to the rudimentary nature of her knowledge of Falun Gong. The Tribunal found that the lack of knowledge was inconsistent with someone who had practised for five years. 9 The Tribunal also referred to the inconsistencies between the appellant's evidence accompanying her protection visa application and the oral evidence of the appellant provided at the Tribunal hearing. The Tribunal referred specifically to the fact that the appellant stated in her visa application that she had been placed in a labour camp for one year, whereas, the appellant told the Tribunal she was in a labour camp for one month. The Tribunal also said that the appellant's evidence as to the description of the labour camp lacked detail. 10 The Tribunal also observed that the appellant had said that she did not want to practise Falun Gong anymore because she wanted to get a job and make money. The Tribunal considered that the appellant's behaviour in not having practised Falun Gong since 1999, and not wanting to practise, was not consistent with the behaviour of a genuine Falun Gong practitioner. 11 The Tribunal found that the appellant was not, and never has been, a genuine Falun Gong practitioner in China, and that she had never practised Falun Gong in Australia. The Tribunal found that there was no real chance of the appellant suffering serious harm should she return to China. Accordingly, the Tribunal affirmed the delegate's decision to refuse the grant of a protection visa.
the federal magistrates court 12 The appellant brought an application for judicial review of the Tribunal's decision. The grounds of the application were: 1. The Tribunal failed to deal with an indice of the Applicant's claim. 2. The Applicant claimed to have practiced Falun Gong in Australia, which gave rise to a potential sur place claim. 3. The Tribunal make no findings about whether or not, if it did happen, it gave rise to a potential sur place claim. 13 The Federal Magistrate accepted the submission put on behalf of the first respondent, that the grounds of the application, in substance, advanced only one complaint, namely, that the Tribunal erred by failing to consider the appellant's claim to have practised Falun Gong in Australia and whether any such practice gave rise to a sur place claim to have a wellfounded fear of persecution in China. 14 The Federal Magistrate rejected that complaint. The Federal Magistrate stated that the Tribunal had considered the appellant's claim to have practised Falun Gong once in Australia. The Federal Magistrate found, however, that the Tribunal, having rejected the appellant's claim to be a genuine Falun Gong practitioner, thereby, rejected the factual foundation for any sur place claim.
the appeal 15 The appellant filed a notice of appeal on 10 January 2011, which contained three grounds. The grounds are: 1. The Refugee Review Tribunal failed to deal with an indice of the Applicant's claim. 2. [The Federal Magistrate] failed to consider the applicant has practiced Falun Gong in Australia, which gave rise to a potential sur place claim. 3. [The Federal Magistrate] failed to consider the Refugee Review Tribunal make no findings about whether or not, if it did happen, it gave rise to a real chance of persecution. 16 It is clear that the Federal Magistrate did consider the question of whether the Tribunal had fallen into jurisdictional error by failing to consider whether the appellant's practising of Falun Gong in Australia gave rise also to a sur place claim. The Federal Magistrate found that the Tribunal had considered the appellant's evidence of having practised Falun Gong in Australia on one occasion. The Federal Magistrate went on to find that the Tribunal had rejected the factual foundation for any such claim. 17 It is apparent that the Tribunal considered and rejected, on credibility grounds, the appellant's claim that she had practised Falun Gong in Australia. It followed from that finding that there was no factual foundation to support a sur place claim by the appellant. The Federal Magistrate did not err in his finding to that effect. 18 Before this Court, the appellant contended that she was a Falun Gong practitioner and that the Tribunal was wrong to find that she was not. Also, said the appellant, the Federal Magistrate should have found that she was a Falun Gong practitioner. The first of these contentions challenges the fact finding process of the Tribunal. In my view, it was open to the Tribunal to have made the factual findings that it did. It did not fall into jurisdictional error in this respect. Likewise, the Federal Magistrate did not err in failing to make a finding as to whether the appellant was a Falun Gong practitioner. It was not part of the jurisdiction of the Federal Magistrate to deal with the merits of the appellant's claim to be entitled to a protection visa. 19 The appeal is dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
SZOQR
Minister for Immigration and Citizenship
[2010] FMCA 1017