SZFHH v Minister for Immigration and Citizenship
[2008] FCA 266
•6 March 2008
FEDERAL COURT OF AUSTRALIA
SZFHH v Minister for Immigration and Citizenship [2008] FCA 266
SZFHH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2330 OF 2007GILMOUR J
6 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2330 OF 2007
BETWEEN:
SZFHH
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
6 MARCH 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2. The appellant pay the first respondent’s costs to be taxed if not agreed.
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 2330 OF 2007
BETWEEN:
SZFHH
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
6 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to appeal from the orders made by Federal Magistrate Smith on 6 November 2007. His Honour dismissed an application for review by the applicant in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) delivered on 17 June 2007. It was dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) on the basis that it did not raise an arguable case for the relief claimed. The Tribunal had affirmed the decision of a delegate of the first respondent made on 14 July 2004 not to grant a protection visa.
The decision of an earlier Tribunal handed down on 18 November 2004 was set aside by consent in the Federal Court on 15 March 2006 and remitted to a second Tribunal. The decision of a second Tribunal delivered on 6 July 2006 was set aside by consent in the Federal Magistrates Court on 9 March 2007 and remitted to a third Tribunal. I will refer to the third Tribunal in these reasons as “the Tribunal”.
BACKGROUND
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 4 July 2004. The applicant claimed he had a well-founded fear of persecution due to his practice of Falun Gong. He claimed he was detained by the Chinese authorities for a week and beaten after being discovered in the Beijing Airport with Falun Gong materials which he had obtained during a business trip in Germany in December 2003.
PROCEEDINGS BEFORE THE TRIBUNAL
The Tribunal was not satisfied that the applicant was a credible witness, and did not accept his claims of persecution, as his evidence was found to be “vague, incoherent and lacked basic knowledge of Falun Gong.”
The Tribunal therefore was not satisfied the applicant had a well-founded fear of persecution for a Convention reason.
PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE
In his application to the Federal Magistrates Court filed on 20 August 2007, the applicant claimed that:
1.A breach of the rules of natural justice occurred in connection with the making of the Decision.
2.The Tribunal have no other evidence to make the decision that I had not been involved in activities about Falun Gong in China.
3.The Tribunal failed to consider the current situation in relation to the persecution of Falun Gong in China.
(Transcribed from the original without amendment or alteration)
The application was listed for a “show cause” hearing under Rule 44.12 of the FMC Rules.
The Federal Magistrate found no breach of natural justice or of the Migration Act 1958 (Cth) [7]. His Honour noted that the Tribunal must be satisfied that the applicant is a refugee and that its finding that he was not a refugee was open on the evidence [8]. Further, the Tribunal did not need to consider the current situation of Falun Gong practitioners in China as it did not accept the applicant’s alleged personal history [9].
The Federal Magistrate therefore found the application raised no arguable case and it was dismissed under r 44.12(1)(a) of the FMC Rules: [10].
APPLICATION TO THIS COURT
In the affidavit annexed to the application for leave to appeal filed in this Court on 26 November 2007 the applicant claimed that:
1. I am a Falun Gong Practitioner.
2.The decision of Refugee Review Tribunal involved a number of errors in Law, founded by the applicant.
The draft notice of appeal contains the following grounds:
1.It was not reasonable for the Tribunal not to accept that I was a Falun Gong practitioner whatever I could not remember clearly Falun Gong events in my home town.
2.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
3. The Tribunal failed to consider the whole of my claims.
(Transcribed from the original without alteration or amendment.)
At the hearing before me, the applicant made no additional oral submissions which went beyond the grounds in the draft notice of appeal.
REASONING
The dismissal of the application by the Federal Magistrate was an interlocutory decision: r 44.12(2) FMC Rules. Accordingly leave to appeal is required.
In my opinion the Federal Magistrate correctly found that none of the grounds in the application disclosed an arguable case for the relief claimed.
Ground 1:
It was open to the Tribunal, on account of the applicant’s unconvincing evidence, to reject his claims. In effect, the applicant is seeking an impermissible merits review: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40).
Ground 2:
This does not disclose a proper ground for leave to appeal.
Ground 3:
This ground is not particularised. There is no evidence that there was any failure on the part of the Tribunal to consider any part(s) of his claims. If this ground is intended to repeat the third ground which was before the Federal Magistrate, then his Honour’s reasoning and conclusion apply equally to this application. The Tribunal was not obliged, once it rejected the applicant’s claims, to consider the then current situation in relation to the persecution of Falun Gong in China. The Federal Magistrate was correct in dismissing this ground.
It is clear from the Tribunal’s decision record that it considered the applicant's claims but, as a result of the adverse findings it made as to the applicant’s credibility, they were rejected.
The generally applied approach to applications for leave to appeal is well established: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 104 ALR 621 at [622].
I am not satisfied that there is sufficient doubt concerning the Federal Magistrate’s decision to warrant it being reconsidered by this Court. The Federal Magistrate considered the application and in my opinion, correctly found that it did not raise an arguable case for the relief claimed. The Court was entitled then to dismiss the application. The applicant has not demonstrated any arguable error in the Federal Magistrate’s reasons or conclusion.
I do not consider, assuming the decision below to be wrong, that refusing leave to appeal would result in a substantial injustice to the applicant. I have come to this conclusion on the basis that I consider the proposed grounds of appeal to have no reasonable prospects of success for reasons which I have outlined above.
The application for leave to appeal should be dismissed. The applicant should pay the costs of the first respondent.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 6 March 2008
The Applicant appeared in person: Counsel for the First Respondent: Mr J Pinder Solicitors for the First Respondent: DLA Phillips Fox Date of Hearing: 6 March 2008 Date of Judgment: 6 March 2008
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