SZGEF v Minister for Immigration and Citizenship

[2007] FCA 1711

FEDERAL COURT OF AUSTRALIA

SZGEF v Minister for Immigration and Citizenship [2007] FCA 1711

SZGEF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 1197 of 2007

FINN J
9 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1197 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGEF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	9 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the first respondent’s costs of the appeal fixed in the sum of $2,800.00. 

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 1197 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGEF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE:	9 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Driver dismissing an application under the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal which affirmed a delegate’s decision to refuse to grant the appellant a Protection (Class XA) visa. The appellant is a citizen of China who arrived in Australia on 19 June 2004.

2. It is unnecessary for the purposes of this appeal to outline in any detail the rather lengthy procedural history of this matter.  The appeal itself must be dismissed for the reasons I give below.

   THE TRIBUNAL’S FINDINGS AND REASONS

3. The Tribunal characterised the appellant’s claims to fear persecution in China as having two bases.  The first was because she had actively protested against China’s “One Child” policy and the practices of officials in pursuit of that policy.  The second was that she had come to adverse attention because of her religion.  The Federal Magistrate conveniently and in my view accurately summarised the Tribunal’s reasons and conclusions in the following:

   “The Tribunal: 

   a)did not accept that the applicant gave a truthful account of her journey from her home village to Australia (and gave detailed reasons why); 

   b)found that the applicant’s claims about where she had lived undermined her claims to have been hiding from authorities at the same time; 

   c)found that her claim to have been arrested in February 2002 (which had not been included in her protection visa application) was contradictory;

   d)observed that the applicant was an unimpressive witness (and gave detailed reasons why); 

   e)observed that the applicant’s evidence was at odds with independent country information; 

   f)noted that given the credibility concerns of the Tribunal, it would prefer independent country information to the applicant’s evidence where it differed with the applicant’s evidence; 

   g)found, having regarded to much of the applicant’s own evidence, that there would be no further adverse consequences in China for the applicant as the result of her having had a second child; 

   h)concluded that there was no real chance that the applicant will experience serious harm or systematic or discriminatory conduct in the future arising out of the birth of her second child;

   i)did not accept that applicant’s claims to have been involved in protests about China’s one child policy and found that the applicant was not adversely regarded by authorities for such a reason and did not accept she would be involved in such protests if she were to return to China;

   j)concluded that there was not a real chance the applicant would be involved in anti-government protests if she returned to China now or in the reasonably foreseeable future;

   k)noted that it had concluded that the applicant’s knowledge of Christianity was obtained in Australia;

   l)found that the applicant was not arrested on 28 February 2002 in China for ‘spreading the gospel’;

   m)found that there was not a real chance that the applicant would be prevented from practising her religion if she returned to Fujian now or in the foreseeable future and that she will not have to modify her conduct in order to escape persecution on account of her religious beliefs.

   The Tribunal concluded that the applicant did not have a well founded fear of persecution for a Convention reason if she was to return to China.”

   (Footnotes omitted.)

4. I should add that the Tribunal’s reasons contained an extended exposition of the evidence and reflected a fair and comprehensive analysis of the appellant’s case.  I make this observation because of the late and unsubstantiated allegation of partiality made against the Tribunal. 

5. The grounds on which judicial review was sought (omitting the particulars) were: 

   “1.The Tribunal erred by making a finding based on INCORRECT information, which has NOT been given by me but MISSTATED by the Tribunal itself.  

   …

   2.The Tribunal erred by failing to comply with its obligation under s.424A(1) of the Act. 

   …

   3.The Tribunal failed to properly assess my claims and correctly apply s.91R and thereby fell into jurisdictional error. 

   …

   4.The Tribunal erred by failing to comply with its obligation under s.425 of the Act. 

   …

   5.In summary, the Tribunal failed to consider my claims properly and fairly.  The Tribunal made its finding actually based on unwarranted assumption;  the Tribunal ignored or failed to consider a claim I made to it;  the Tribunal ignored other relevant materials which was before it;  and the Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact.”

   (Emphasis in original.)

6. I would note in passing that the grounds of appeal against the decision of Driver FM are in near identical terms.  Unlike the application for the order of review, they are not particularised.  The appellant’s submissions on the appeal provide, in effect, particulars to the second of the above grounds by reference primarily to matters raised in the s 424A letter that had been sent to the appellant by the Tribunal.

   THE FEDERAL MAGISTRATE’S DECISION

7. His Honour dealt comprehensively with the grounds raised in the application for an order of review.  His Honour indicated that Ground 1 for the most part simply sought review on the merits of the appellant’s case before the Tribunal and it took issue with findings of fact.  His Honour also dealt with the alleged difficulties with the interpreter.  This was a matter that had been brought to the Tribunal’s attention by the appellant and the Tribunal accepted and corrected a misinterpretation on which it had been relying.  His Honour held the Tribunal’s findings in connection with the alleged errors in interpretation were not open to review by him. 

8. The second (the s 424A) ground was rejected properly by the Tribunal as being without substance.  It clearly was open to the Tribunal to rely upon country information.  This was not discloseable information for the purposes of s 424A.  Otherwise the Federal Magistrate was satisfied that the Tribunal complied with its obligations under s 424A when it forwarded a lengthy letter to the appellant and to which the appellant did respond.  Account was taken of that response.

9. The s 91R ground was found again to be without substance.  The Federal Magistrate indicated that the Tribunal correctly set out the requirements of s 91R in its decision.  His Honour found no incorrect application of that section but rather indicated that the cause of complaint was that the Tribunal simply did not believe much of the factual basis of the appellant’s claim. 

10. The s 425 ground was, in his Honour’s view, related simply to a matter of comment by the Tribunal and that the comment appeared to be without point in any event.  It clearly was not being used by the Tribunal as a matter requiring response as relating to the issues arising in relation to the decision under review. 

11. The final ground of review – the Tribunal questioned whether it properly could be so characterised – was rejected by the Tribunal on a variety of bases.  These were that the ground was unparticularised and that, to the extent that it made an allegation of bias, there was no proper basis whatever for this. 

    THE PRESENT APPEAL

12. The appellant put on a submission, as I have indicated, which did no more than state the first, second and fifth grounds of the application for an order to show cause.  At the hearing she read a prepared address which reiterated the substance of the written submission.  It would appear that neither ground 3 (s 91R) or ground 4 (s 425) are being prosecuted on the appeal.

13. The respondent Minister, correctly in my view, has indicated that the appellant has not attempted to identify with any particularity how it is asserted that the Federal Magistrate was in error.  It clearly is the case that the appellant’s complaint properly characterised is that she is dissatisfied with the outcome of her application and in varying guises is seeking to obtain merits review of that outcome.  Her principal difficulty is, though, that she simply was not regarded as a credible witness and the adverse credibility findings are fatal to her application.

14. Having considered the Federal Magistrate’s decision and the reasons given for rejection of the order to review application, I am satisfied that no appealable error has been disclosed.  I agree with the Federal Magistrate’s conclusion.

15. Accordingly, I will order that the appeal be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        9 November 2007

The Appellant appeared in person.
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 November 2007
Date of Judgment:	9 November 2007