SZFDN v Minister for Immigration and Multicultural &
[2005] FCA 768
•7 JUNE 2005
FEDERAL COURT OF AUSTRALIA
SZFDN v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 768SZFDN v MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRSNSD 681 of 2005
LINDGREN J
7 JUNE 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 681 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZFDN
APPELLANTAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
7 JUNE 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
NSD 681 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZFDN
APPELLANTAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE:
7 JUNE 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 25 May 2005, I ordered, to the extent that it might be necessary, that the appellant have leave to file and serve a notice of appeal in accordance with the form of notice of appeal annexed to his affidavit sworn 25 April 2005 in support of his application for an extension of time ([2005] FCA 725).
The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 23 February 2005. By that decision the FMCA dismissed his application for a review of a decision of the Refugee Review Tribunal. The Tribunal’s decision was handed down on 31 July 2003 and affirmed a decision of a delegate of the respondent Minister (‘Delegate’ and ‘Minister’ respectively) not to grant a protection visa.
The grounds of appeal stated in the notice of appeal are as follows:
‘(a)the Tribunal failed to consider and properly exercise its discretionary power provided under s427(1)(b) of the Migration Act 1958;
(b)the judge failed to consider the Tribunal’s decision, no basis for making such a statement. The Tribunal accepted the types of penalty constitutes persecution according to the principles laid down in the judgment of McHugh J P57. The observation is made nor is it necessary element of persecution that individuals should be the victim of a series of acts. A single act of oppression may suffice.’
Under the heading ‘Orders Sought’ in the notice of appeal, the appellant seeks, firstly, an order that the respondent pay his costs, and, secondly, an order that there be a further ‘application for judicial review of the decision of the Refugee Review Tribunal dated 1 July 2003 should be accepted for filing by the Registry of the Federal Court of Australia’ (sic). I view this second order sought as an order that the matter be remitted to the Tribunal.
According to the reasons for decision of the Tribunal, the appellant first arrived in Australia on 12 February 1998 and last arrived here on 1 February 2002. Shortly after the latter arrival, on 19 February 2002, he lodged an application for a protection (Class XA) visa. On 12 March 2002 the Delegate advised the appellant of certain matters which might lead to his application being refused. On 15 April 2002, the appellant provided further information. Nonetheless, on 16 April 2002, the Delegate refused the grant of a protection visa.
On 17 May 2002 the appellant lodged his application for review of the Delegate’s decision with the Tribunal.
On 13 March 2003 the Tribunal notified the appellant that the Tribunal would conduct a hearing on 27 May 2003, which the appellant was invited to attend. However, on 1 April 2003 the appellant notified the Tribunal that he would not attend the hearing. According to the Tribunal’s reasons for decision, the appellant wrote to the Tribunal stating that he did not wish to give oral evidence and wished the Tribunal to make a decision ‘on the papers’.
The Tribunal reviewed the papers before it. I will not summarise its reasons. The Tribunal noted the appellant’s claim that he feared persecution on the ground of his being a Falun Gong practitioner. The Tribunal reviewed country information relating to the People’s Republic of China, and, in particular, relating to Falun Gong.
The Tribunal observed that the application was very general and lacked the degree of detail which the Tribunal needed in order to establish the relevant facts in an application of the present kind. In particular, the Tribunal observed that there was lack of detail as to the extent or level of involvement of the appellant in the practice of Falun Gong, although, according to the Member’s reasons for decision, ‘the lack of detail would indicate a low level involvement’.
The Tribunal also noted that the application did not indicate any knowledge on the appellant’s part of the practice of Falun Gong, or any details as to how the appellant had come to join the Falun Gong group. The Tribunal continued at some length in noting all the things which were not evident on the papers.
The appellant had supported his original application for a protection visa with a two page statement dated 18 February 2002, and he had written a one page letter dated 15 April 2002 supplying further information in response to the invitation from the Department.
The Tribunal also considered independent country information and said that it preferred that information to that supplied by the appellant where they were in conflict. The Tribunal concluded:
‘The application is not genuine’.
A particular matter mentioned by the Tribunal was that the appellant had first arrived in Australia in February 1998 but had not filed an application for a protection visa at that time. Of this circumstance, the Tribunal stated:
‘This unexplained delay is inconsistent with fear of persecution for a Convention based reason’.
On the hearing of the appeal this morning, the appellant stated that he had not come to Australia on 12 February 1998, and that the record of his arrival then must relate to another person. That issue is not referred to in the reasons of Barnes FM, before whom the appellant appeared, although those reasons do record that the appellant first arrived in Australia in 1998. No doubt the appellant did not raise the matter before her Honour. Barnes FM noted that he complained that he did not know how the Tribunal had reached its decision and that the decision was not fair to him.
I see no reason to disagree with the Federal Magistrate’s analysis of the reasons of the Tribunal. The appellant seeks a further review on the merits which is not, of course, open to this Court.
In response to my invitation, the appellant stated that the judgment was ‘not right’ and that there should be a ‘fair judgment’. He complained that the Department had not investigated his case at all. He also said that the case was not his case, by which I took him to mean that the reference to an arrival in Australia on 12 February 1998 must relate to another person.
It would, of course, be a serious error if the recorded arrival on 12 February 1998 did in fact relate to a different person. But there is not before the Court even such records as may have been before the Tribunal relating to his arrival on 12 February 1998, and, in any event, it would be a factual question not ordinarily to be resolved on the hearing of an appeal to the FMCA or from the FMCA to this Court. The appellant’s notice of appeal to this Court does not raise the matter. So far as I know, the claim was made for the first time orally before me this morning.
The appellant has not established any jurisdictional error on the part of the Tribunal and the appeal should be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 14 June 2005
The Appellant appeared in person Solicitor for the Respondent: Ms S Burnett of Clayton Utz Date of Hearing: 7 June 2005 Date of Judgment: 7 June 2005
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