SZHKK v Minister for Immigration and Citizenship

[2007] FCA 1264

FEDERAL COURT OF AUSTRALIA

SZHKK v Minister for Immigration and Citizenship & Anor [2007] FCA 1264

Migration Act 1958 (Cth) ss 91R, 424A

SZHKK v Minister for Immigration and Citizenship [2007] FMCA 842 affirmed

SZHKK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1050 OF 2007

HEEREY  J
17 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1050 OF 2007

BETWEEN:

SZHKK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY  J
DATE OF ORDER:	17 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellant pay the first respondent’s costs.

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 1050 OF 2007

BETWEEN:

SZHKK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY  J
DATE:	17 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of FM Smith who dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. 

2. The nature of the appellant’s claims, the essence of the Tribunal’s reasoning and the reasons of the Magistrate are set out in the decision of the court below, which is available on the Internet: SZHHK v Minister for Immigration and Multicultural Affairs [2007] FMCA 842. It is not necessary to repeat that material other than to say that the appellant’s claim was that he had a well-founded fear of persecution by reason of his Christianity. He claimed to be the leader of an underground church and that his home had been searched by authorities.

   The decision of the Federal Magistrate

3. Before the Federal Magistrates Court the grounds of review were: first: the Tribunal failed to carry out its statutory duty; and secondly: the Tribunal had bias against the appellant and did not believe that he was a leader of an underground church in China or even a Christian.

   The appeal to the Federal Court

4. On the appeal to this Court the appellant’s grounds were: first: the Tribunal had bias against him and failed to consider his application according to s 91R of the Migration Act1958 (Cth); secondly: the Tribunal failed to consider his application according to s 424A of the Act; thirdly: the Tribunal failed to notify him of the reason or part of the reason for affirming the decision; and fourthly: the appellant was not given an opportunity to explain his case.

5. At the appeal the appellant was not represented but was assisted by an interpreter.  The Minister filed written submissions by Ms Gazi, and the appellant, with the assistance of an interpreter, read those submissions.  When invited to address the Court in support of his appeal, the appellant said through the interpreter that he was a refugee in China, that he had been persecuted by the Chinese government and that he was seeking protection from the Australian government. 

6. In my opinion the appeal has no substance. There is no evidence of bias apparent in the way the Tribunal considered the matter. It questioned him about his knowledge of the Christian religion, but this was an ordinary exercise of its fact finding function. There was no breach of s 424A. I find no error in the decision of the Federal Magistrates Court.

7. The appeal will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY.

Associate:

Dated:        17 August 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	L Gazi
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 August 2007
Date of Judgment:	17 August 2007