SZDOF v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 534

FEDERAL COURT OF AUSTRALIA

SZDOF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 534

MIGRATION – appeal from Federal Magistrates Court – no jurisdictional error in magistrate’s decision –appeal dismissed.

SZDOF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1895 OF 2004

HILL J
26 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1895 OF 2004

BETWEEN:	SZDOF APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL
DATE OF ORDER:	26 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.

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	N1895 OF 2004

BETWEEN:	SZDOF APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL
DATE:	26 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J:

1. Before the Court is an appeal from a decision of a federal magistrate dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). 

2. Put shortly, the appellant had applied for a protection visa.  That application was refused by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).  The appellant then sought review of the decision of the delegate by the Tribunal.  He was unsuccessful.

3. It is a criterion for grant of a protection visa that an applicant be a person to whom Australia has protection obligations.  Australia will have protection obligations, generally speaking, to a person who is a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.

4. It was the appellant's case before the Tribunal that he was a refugee because he had a well founded fear of persecution on religious grounds.  He claimed to be a Christian and to have, since 1998, organised religious gatherings and to have become a leader of a Bible study group.

5. He claimed that he had been interrogated by the local police who had declared the group illegal.  He claimed that one of the co-leaders of the group had died in an accident in a quarry where the group leaders were required to do heavy manual work.  He claimed thereafter to have recommenced underground religious activities with one of his original co-founders of the Bible group.  He claimed that this man was, in 2003, arrested and sentenced to 10 years gaol.  He claims to have left China for Australia because he feared persecution for reasons of his religion.

6. The Tribunal sought to test the appellant's claims by asking a number of questions about Christianity.  Passages from the Tribunal's reasons are set out in the decision of the federal magistrate and need not be repeated.  The Tribunal did not believe the appellant.  It did accept that the appellant had been attending a Chinese Christian church in Sydney but did not accept that the appellant had been a leader of Bible activities because his knowledge of Christianity was, to say the least, rather minimal.

7. The Tribunal's reasons can be summarised in the following sentence:

   “…I consider highly implausible, and indeed do not accept, that [the appellant] was a practicing Christian in China or that he was suspected by the Chinese authorities of being one.”

8. The appellant's application for judicial review before the Federal Magistrates Court stated four grounds which are set out in the magistrate's decision.  The magistrate considered and rejected each of the grounds and dismissed the application. 

9. Before me, the appellant complained that the learned magistrate had not listened to what he had said.  He said that he had explained the mistakes which the Tribunal had made but that the magistrate had not accepted his explanation.  He asked that the Tribunal reopen the case.  When asked what matters the magistrate had not listened to and not accepted, the appellant merely repeated a number of times that the magistrate had not accepted his explanation or listened to him.

10. The appellant was apparently unable to explain to the magistrate what it was about the Tribunal's decision that was wrong.  Likewise, he was unable to explain why the magistrate had been in error in dismissing his application for judicial review.  It is, no doubt, true as the appellant has said, that the Tribunal did not believe what he said to it.  However, the federal magistrate was required to consider whether there was a jurisdictional error on the part of the Tribunal and not to consider whether the Tribunal had made some mistake on the merits of the case.

11. In the circumstances, I am not convinced that the magistrate has erred in dismissing the application for judicial review, and for the reasons that he gave.  I would, accordingly, dismiss the appeal against the magistrate's decision and order the appellant to pay the respondent Minister's costs of the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            29 April 2005

The appellant appeared for himself
Counsel for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 April 2005
Date of Judgment:	26 April 2005