SZIBJ v Minister for Immigration and Citizenship

[2007] FCA 317

FEDERAL COURT OF AUSTRALIA

SZIBJ v Minister for Immigration and Citizenship [2007] FCA 317

SZIBJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2401 OF 2006

MOORE J
8 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2401 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	8 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

3.The first respondent's costs be fixed in the sum of $3000.

4.The name of the first respondent be amended to read the Minister for Immigration and Citizenship.

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 2401 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	8 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of the 27 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal of 18 November 2005: see SZIBJ v Minister for Immigration & Anor [2006] FMCA 1842. The Tribunal affirmed a decision of a delegate of the Minister of 20 May 2005 refusing to grant the appellant a protection visa.

2. The appellant’s claims before the Tribunal centred on the loss of a farm as a result of the conduct of corrupt party officials together with what the appellant claimed was further persecutory conduct he had experienced before leaving the People's Republic of China in late 2004.  The Tribunal accepted that the appellant had been exposed to harm which constituted persecution at the time he lost the farm but did not accept his account of later events which might have constituted persecutory conduct.  Insofar as the Tribunal found that he did suffer harm at the time he lost his farm, it concluded that it was harm which was not suffered for one of the reasons identified in the Refugees Convention.

3. The appellant claimed in the notice of appeal filed in this Court that the judgment of the Federal Magistrate contained errors of law.  While it is not entirely clear, the grounds appear to contain a complaint about the way the Federal Magistrate applied the procedural law and the law applicable to judicial reviews of decisions made under the Migration Act1958 (Cth). There is also apparently an allegation of denial of procedural fairness before the Tribunal.

4. The appellant has filed written submissions in this appeal.  They appear to address two matters.  The first concerned the procedures before the Federal Magistrates Court.  The second concerned the reasoning of the Tribunal.  As to the first matter, the appellant submitted orally that the procedures adopted by the Federal Magistrate were unfair.  The appellant's submissions referred to three documents he had provided to the respondent and an allegation that the respondent did not give him materials in reply to his documents.  This appears to be a reference to a matter addressed by the Federal Magistrate at [3] of his reasons, in which his Honour noted that the appellant had been late in filing his submissions and that the Minister had also been one day late in filing the submissions opposing the appellant’s application.  The Federal Magistrate recorded at [3] that the appellant had told him that he had been able to have the Minister's submissions read to him by a friend.  His Honour refused to adjourn the hearing of the application on the basis that the appellant had had a sufficient opportunity to understand the submissions made by the Minister in opposition to his application. 

5. There is no material before me challenging the findings of fact made by the Federal Magistrate in [3] of his Honour's reasons.  It is not apparent to me that the Federal Magistrate erred in exercising the discretionary power to grant or refuse an adjournment, nor is it apparent to me that the events about which the appellant has spoken constituted a denial of procedural fairness in the proceedings before the Federal Magistrate. 

6. This leads to a consideration of the other matter raised in the appellant’s written submissions, namely the approach taken by the Tribunal to the appellant’s claims of having been persecuted in the PRC and of having a well founded fear of persecution were he to return.  I have read both the Tribunal’s reasons for decision and the reasons for judgment of the Federal Magistrate.  It is not apparent to me that the Tribunal erred in the way in which it approached the claims of the appellant.  It accepted that some aspects of his account of events in PRC and rejected others.  Insofar as it accepted some aspects of the appellant’s account, it does not appear to me that it erred in the way in which it characterised the conduct to which the appellant had been exposed.  Similarly, no legal error attended the Tribunal's conclusion that whatever the persecutory conduct to which the appellant may have been exposed it was not for a Convention related reason.  Nor does any error attend the Tribunal’s ultimate conclusion that the chances of the appellant suffering Convention related persecution in the future were remote.

7. In conclusion, it is not apparent to me that the Federal Magistrate erred in the way he dealt with the appellant’s case.  Nor is it apparent to me that the Tribunal fell into jurisdictional error in considering the application for review.  I order that the appeal be dismissed and the appellant pay the first respondents costs, fixed in the sum of $3000.

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

Associate:

Dated:        12 March 2007

The Appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 March 2007
Date of Judgment:	8 March 2007