SZIMD v Minister for Immigration and Citizenship

[2007] FCA 1124

FEDERAL COURT OF AUSTRALIA

SZIMD v Minister for Immigration and Citizenship [2007] FCA 1124

Migration Act 1958 (Cth) s 424A

SZIMD v Minister for Immigration [2007] FMCA 445 affirmed

SZIMD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 710 OF 2007

HEEREY J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 710 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIMD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as the second respondent.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs fixed at $2000.

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 710 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIMD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate which dismissed an application for review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa.  Details of the application, the Tribunal’s decision and the decision of the Federal Magistrate are set out in the judgment of the latter, SZIMD v Minister for Immigration [2007] FMCA 445, which is available on the internet.

2. The appellant is a citizen of the People’s Republic of China.  He claimed to have well-founded fear of persecution based on his membership of Falun Gong.  He claimed to have practised Falun Gong since 1998 in order to assist his health.  He also claimed that after the ban on Falun Gong in 1999 his health deteriorated.  He claimed to have been detained on five occasions and been tortured.

   The Decision of the Tribunal  

3. Before the Tribunal the appellant claimed that he practised Falun Gong exercises in Australia with friends.  He also claimed that he had a visa to visit Singapore, but had not in fact travelled there because on the way to the airport to go to Singapore he had been stopped and beaten.  The Tribunal did not accept that the appellant was a Falun Gong practitioner and was subject to arrest and torture in China.  He provided no written evidence and his application contained minimal details.  He was not a credible witness in respect of key aspects.  His evidence was unconvincing, generalised and lacking specificity, especially in relation to the claims of arrest.  He was unable to elaborate in any details on the belief system of Falun Gong.  He had not had contact with the Falun Association in Australia.  The Tribunal found that the paucity of the appellant’s evidence led it  to find that he was not genuinely in fear of persecution. 

   The Decision of the Federal Magistrate

4. Before the Federal Magistrate the grounds of the application were that the Tribunal failed to carry out its duty under s 424A of the Migration Act 1958 (Cth) and had failed to give sufficient reasons for its decision. The Federal Magistrate’s conclusion at [17] was that the appellant’s evidence had been rejected by the Tribunal because of its lack of specificity and highly generalised nature. This conclusion did not rely on information in respect of which the Tribunal had any obligation under s 424A(1). The information fell within the exception in s 424(3)(b). The Tribunal had no obligation to disclose its thought processes.

   The Appeal to the Federal Court

5. The grounds of appeal to this Court were:

   (1)That the Tribunal was biased in finding that the appellant was not a Falun Gong practitioner. 

   (2)That the Tribunal did not provide materials and evidence to justify its decision. 

   (3) That the Tribunal did not comply with s 424A.

6. The appellant was not represented on the appeal, but was assisted by an interpreter. When invited to put argument to the Court the appellant said he had nothing to say. In my opinion, there is no substance in the grounds alleged. Bias is a matter which has to be proved. The Tribunal’s reasons disclose no indication of bias, whether actual or apprehended. In respect of the second ground the Tribunal’s reasoning was based on its assessment of the evidence and explained the conclusion it reached. In respect of the third ground I agree with Federal Magistrate that there was no failure to comply with s 424A.

7. The Court Orders that:

   1.The Refugee Review Tribunal be joined as the second respondent.

   2.The appeal be dismissed.

   3.The appellant pay the first respondent’s costs fixed at $2000.

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:        31 July 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	A Markus
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007