SZGNP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1839

FEDERAL COURT OF AUSTRALIA

SZGNP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1839

SZGNP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1940 of 2005

BRANSON J
6 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1940 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGNP
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

6 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1940 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGNP
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	6 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant appeals from a judgment of the Federal Magistrates Court delivered on 4 October 2005.  By that judgment a Federal Magistrate dismissed an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse the appellant a protection visa. 

   BACKGROUND

2. The appellant is a national of China who claims to have left China illegally in 1998 on a false passport. He entered Australia on 27 July 1998 using the same false passport and a visa which had been issued to the person bearing the name on the passport.  The visa expired on 30 July 1998.  The appellant has remained in Australia since that time. 

3. In February 2005 the appellant was detained by Departmental officers and taken to Villawood detention centre.  On 11 March 2005 the appellant lodged an application for a protection visa. He was assisted by a Legal Aid solicitor.  The appellant claimed to fear persecution in China as a result of his political opinion and practice of Falun Gong. 

4. A delegate of the Minister refused the appellant’s application for a protection visa on 22 March 2005 and the appellant applied for review of that decision to the Tribunal on 29 March 2005.  A Legal Aid solicitor again assisted the appellant in respect of the Tribunal hearing.  On 27 May 2005 the Tribunal affirmed the delegate’s decision.  The decision of the Tribunal was based on the Tribunal’s finding that the appellant’s evidence was ‘inconsistent, contradictory and implausible’. 

   PROCEEDING BEFORE THE FEDERAL MAGISTRATE

5. The appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  He received advice from a lawyer under the Federal Magistrates Court’s free advice scheme although he appeared in person before the learned Federal Magistrate. 

6. At the hearing before the Federal Magistrate the appellant applied for an adjournment to give him further time to engage a lawyer as he had been released from detention only a few weeks earlier.  The Federal Magistrate refused the application for an adjournment. 

7. The Federal Magistrate concluded that the Tribunal’s credibility findings were open to it as a matter of law and that no jurisdictional error affected the Tribunal’s assessment of the appellant’s claims.  The Federal Magistrate also gave consideration to each of the appellant’s complaints regarding natural justice and concluded that none of the appellant’s complaints gave rise to jurisdictional error.   

   THE AMENDED NOTICE OF APPEAL

8. The amended notice of appeal filed on 22 November 2005 sets out two grounds of appeal.  As happened before the Federal Magistrates Court, the appellant was not able to address me with respect to the grounds of appeal contained in his notice of appeal which he said had been drafted by a friend.  Nonetheless, I consider it appropriate to give brief consideration to the grounds of appeal. 

9. The first ground of appeal contends that the Tribunal constructively failed to exercise its jurisdiction by not considering the appellant’s claim to fear that PSB spies have infiltrated Australia and informed authorities in China of the appellant’s practice of Falun Gong in Australia.  No specific allegation regarding PBS spies in Australia appears to have been raised before the Tribunal or, indeed, the Federal Magistrate. Accordingly, the Tribunal did not in this respect fail to consider a claim made by the appellant.  A more general proposition regarding the Tribunal’s failure to address the appellant’s claims resulting from his activities in Australia was put to the Federal Magistrate.  The Federal Magistrate, in my view, correctly concluded that the Tribunal sufficiently identified and addressed all claims made by the appellant, including those based upon his activities in Australia. 

10. Secondly, the amended notice of appeal appears to assert that the Federal Magistrate erred by asking the wrong question with regard to the appellant’s ability to avoid persecution because the Tribunal unreasonably concluded that it was not satisfied about the genuineness of the appellant’s commitment to Falun Gong.  This ground of appeal appears to challenge the Tribunal’s finding regarding the credibility of the appellant’s claims to practice Falun Gong.  Neither the Federal Magistrate nor this Court is able to reassess credibility findings made by the Tribunal.  No error on the part of the Federal Magistrate has been shown in relation to this complaint. 

    ORAL SUBMISSIONS

11. Before me today the appellant has argued that it was hard for him to obtain evidence to place before the Tribunal, or before the Federal Magistrates Court, because he was held in detention until a few weeks before the hearing of his application to the Federal Magistrates Court.  However, the appellant accepts that he did not seek an adjournment of the hearing before the Tribunal on this or any other basis.  The conclusion of the Federal Magistrate that no jurisdictional error attended the decision of the Tribunal not to give the appellant more time to obtain evidence is, for this reason, not attended by error.

12. The appellant has further argued that the Tribunal should have asked him further questions concerning the practice of Falun Gong before it rejected his evidence that he is committed to the practice of Falun Gong.  The adverse view taken of the appellant’s credibility on the question of his commitment to the practice of Falun Gong was based on his own evidence of very limited practice of Falun Gong since his arrival in Australia.  Assessment of the credibility of the claims made by the appellant in support of his application for a protection visa was a matter for the Tribunal; it is not a matter within the jurisdiction of the Federal Magistrates Court or this Court.  No jurisdictional error can be seen to attend the conclusion of the Tribunal in this regard.

    CONCLUSION

13. No error has been shown to affect the judgment of the Federal Magistrates Court.

14. The appeal will be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            14 December 2005

The appellant appeared in person.
Counsel for the First and Second Respondents:	S A Mason
Solicitor for the First and Second Respondents:	Phillips Fox
Date of Hearing:	6 December 2005
Date of Judgment:	6 December 2005