SZGUV v Minister for Immigration and Citizenship

[2007] FCA 1775

FEDERAL COURT OF AUSTRALIA

SZGUV v Minister for Immigration and Citizenship [2007] FCA 1775

SZGUV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD1630 OF 2007

EMMETT J
8 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1630 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGUV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	8 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the sum of $3,500.

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	NSD1630 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGUV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	8 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this appeal, the appellant asks the Court to set aside orders made by the Federal Magistrates Court on 27 July 2007, whereby the Federal Magistrates Court dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). 

2. When the appeal was called on for hearing this morning, there was no appearance for the appellant.  I have seen evidence that, by letter of 19 September 2007, addressed to the appellant at his address for service, the appellant was notified by the Court of the date fixed for the hearing as well as the time and place.  In addition, on 30 October 2007, the solicitors for the first respondent, the Minister for Immigration and Citizenship (the Minister), wrote to the appellant at his address for service, enclosing a copy of the Minister’s outline of submissions and notifying the appellant of the time and place for the hearing of the appeal.

3. The appellant is a citizen of the Peoples Republic of China who arrived in Australia on 12 December 2004.  He applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act) on 20 January 2005. A delegate of the Minister refused to grant the visa on 24 February 2005. The appellant sought review of the delegate’s decision by the Tribunal, which affirmed the delegate’s decision on 7 June 2005. However, on 19 October 2006, the Federal Magistrates Court set aside the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law. On 12 January 2007, the Tribunal, differently constituted, affirmed the decision not to grant a protection visa.

4. On 20 February 2007, the appellant commenced a further proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s second decision.  In his application, the appellant asserted the following grounds:

   “(1)The decision made an error of the law, being an error involving an incorrect application at the law to the facts as found by the respondent.

   (2)There was no evidence or the other material to justify the making of the decision.

   (3)The Tribunal not consider the difficult for me to collect evidence from [China]”.

5. In his reasons of 27 July 2007, the primary judge noted that the Tribunal had concluded that the appellant fabricated his evidence.  His Honour then dealt with the three specific grounds and found that they had no substance. 

6. The Tribunal observed that the appellant had claimed to fear persecution in China because he is a member of a social group consisting of a group of farmers whose land was acquired for development by the Fuqing City government, or a group of farmers who protested against the acquisition.  The Tribunal heard evidence from the appellant, but considered the appellant’s changing claims, concerning when certain of the farmers’ land was acquired, contained significant inconsistencies.  The Tribunal considered the inconsistencies between claims made in the application and at the hearing led the Tribunal to doubt the claimed sequence of events.  The Tribunal concluded that the appellant did not suffer any harm in China for a Convention reason:  the inconsistencies that the Tribunal described, together with a lack of detail concerning significant events, when considered cumulatively, led the Tribunal to conclude that the appellant had fabricated the claims concerning land being acquired unfairly by the government, and fabricated a story of being arrested, detained, and injured. 

7. In the light of those findings, there is no apparent error in the reasons of the Federal Magistrates Court. 

8. In the notice of appeal to this Court, the appellant cited the following grounds:

   “(1)The Refugee Review Tribunal’s decision was based on unwarranted assumptions.

   (2)The Tribunal failed to carry out its function in a bona fide manner.

   (3)The Refugee Review Tribunal had jurisdictional errors at processing my review application.”

9. None of those grounds, of course, points to any error on the part of the Federal Magistrates Court.  However, since the appellant is not legally represented, I would be prepared to construe the notice of appeal as stating that the Federal Magistrates Court erred in not finding that the Tribunal’s decision was affected by jurisdictional error on those grounds.  However, those grounds have no substance whatsoever.

10. Following the non-appearance of the appellant, the Minister moved for dismissal of the proceeding.  There is clearly no substance in the appeal and it is appropriate, therefore, to accede to the Minister’s application. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        20 November 2007

The Appellant did not appear.
Counsel for the First Respondent:	Mr J. Mitchell
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007