SZHKC v Minister for Immigration and Citizenship

[2007] FCA 1297

FEDERAL COURT OF AUSTRALIA

SZHKC v Minister for Immigration and Citizenship [2007] FCA 1297

SZHKC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 613 OF 2007

BESANKO J
3 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 613 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHKC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	3 AUGUST 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.

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 613 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHKC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order made by a Federal Magistrate. The Magistrate dismissed the appellant’s application for constitutional writs in relation to a decision of the Refugee Review Tribunal.

2. The appellant is a national of the People’s Republic of China. He arrived in Australia on 11 December 2004 and, on 15 December 2004, he lodged an application for a Protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”). On 24 March 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa to the appellant.

3. On 27 April 2005, the appellant applied to the Tribunal for a review of that decision.

4. The appellant was invited to a hearing before the Tribunal. He attended and gave evidence. On 20 September 2005, the Tribunal affirmed the delegate’s decision not to grant a protection visa to the appellant.

5. On 19 October 2005, the appellant lodged an application in the Federal Magistrates Court for constitutional writs in relation to the decision of the Tribunal. The grounds of his application were as follows:

   “1.The applicant applied for a protection visa a few days after arriving in Australia. The Tribunal failed to take this matter into account in the course of finding that ‘the applicant is [not] a genuine Falun Gong adherent’. (‘prompt application issue’).

   2.The Tribunal based its decision on the applicant’s demeanour. In the circumstances, the Tribunal breached the principles stated by Kirby J in MIMA v SGLB (2004) 78 ALJR 992 at [73]. (‘demeanour issue’)”

6. In written reasons delivered on 22 March 2007, the Magistrate rejected both of these grounds.

7. On appeal to this Court, the appellant raises only one ground of appeal. It is in the following terms:

   “1.His Honour erred in holding that the short period of time between the appellant’s arrival in Australia and the appellant’s application for a protection visa was not a relevant matter that the second respondent was bound to take into account in making its decision.

   PARTICULARS

   The first respondent refused the appellant’s application for a protection visa. The appellant applied to the second respondent which affirmed the first respondent’s refusal. The appellant contends that the second respondent, in reaching that decision, was bound to take into account the fact that the appellant applied for a protection visa within four days of arrival in Australia. The second respondent did not consider that fact, however, in reaching its decision.”

8. This ground is similar to the first ground in the application the appellant made to the Magistrate.

9. The Magistrate began her consideration of this ground by noting that it was conceded before her that the promptness of the appellant’s application for a protection visa upon his arrival in Australia was never relied upon by the appellant before the Tribunal, nor was any submission made by the appellant which, in any way, referred to that matter.

10. The Magistrate noted that the appellant’s submission was that one of the matters the Tribunal was required to consider was whether he had a fear of persecution, and the promptness of the application was relevant to that issue.

11. The Magistrate noted the submissions made by the first respondent and in particular his reference to certain authorities. The Magistrate noted that it was common ground between the parties that the promptness of the application was not a matter that the Tribunal was prohibited from taking into account. The contention of the first respondent before the Magistrate was that the promptness of the application was a matter the Tribunal was able to consider but was not bound to consider, and a failure to do so was not an error. The Magistrate expressed her conclusions as follows:

    “Counsel for the First Respondent conceded that promptness may be potentially relevant, in considering whether or not the Applicant has a subjective fear of persecution, however, the Tribunal would only have been bound to consider that fact, where it was raised by the Applicant as an integer of his claim.

    Accordingly, the promptness of the Applicant’s application for a protection visa after having arrived in Australia was not a consideration, in all the circumstances, that the Tribunal was bound to have regard to such that failure to do so amounted to jurisdictional error. In the circumstances, it was a relevant consideration that the Tribunal may or may not take into account (Peko-Wallsend at 39-40 per Mason J).”

12. I agree with the reasoning of the Magistrate and with the submissions of the first respondent. The promptness of the application was a matter the Tribunal was entitled, but not bound, to take into account. There is nothing in the Act or Migration Regulations 1994 (Cth) which requires the decision-maker to consider it. It is not an integer or part of an integer of the appellant’s claim. It is a matter that was not brought to the attention of the Tribunal and in those circumstances the Tribunal cannot be criticised for not dealing with it.

13. The only ground of appeal in the notice of appeal fails.

14. The appellant made brief oral submissions this morning. Those submissions related to the factual matters dealt with by the Tribunal. Nothing said in the course of those submissions indicates jurisdictional error on the part of the Tribunal. The appeal must be dismissed, and the order of the Court is that the appeal 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 Besanko.

Associate:        

Dated:        31 August 2007

The Appellant appeared in person
Counsel for the Respondent:	Mr B O'Donnell
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	3 August 2007
Date of Judgment:	3 August 2007