SZJHP v Minister for Immigration and Citizenship

[2008] FCA 119

FEDERAL COURT OF AUSTRALIA

SZJHP v Minister for Immigration and Citizenship [2008] FCA 119

Migration Act 1958 (Cth) s 424A

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 referred to

SZJHP AND SZJHQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1996 OF 2007

TAMBERLIN J
19 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1996 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJHP AND SZJHQ
Appellants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	19 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs in a sum fixed at $2,280.00.

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 1996 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJHP AND SZJHQ
Appellants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	19 FEBRUARY 2008
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”) which in turn affirmed the decision of a delegate of the first respondent to refuse an application for a protection visa pursuant to the Migration Act 1958 (Cth) (“the Act”).

2. In its findings and reasons, the Tribunal states that it did not accept the appellant as a witness of truth, and sets out a number of factors as to why it considered there were inconsistencies in the factual circumstances and other claims alleged by the appellant.

3. In particular, the Tribunal considered that the appellant was not a practitioner of Falun Gong, and instead used the Falun Gong movement as a means of embellishing his claim.  Contrary to some of the principal elements of the appellant’s claim, the Tribunal was not satisfied that he was arrested as a result of a complaint about farmers’ compensation, nor that the arrest was compounded by his possession of Falun Gong literature.  Furthermore, the Tribunal did not accept that the appellant was detained and threatened in China by security authorities, nor that he has suffered persecution in China for any reason contained in the Refugees Convention.  The reasons for these conclusions are spelt out clearly in the reasons of the Tribunal, and no error has been identified by the appellant when the matter came on for hearing in this Court. 

4. The notice of appeal contains two grounds. The first is that the Tribunal breached its duty under s 424A of the Act. Although there was no argument put to me to support this allegation, I have had regard to the decisions and reasons of the Federal Magistrate and the Tribunal, and I am not persuaded there has been any breach of that section. I agree with the reasoning of the Federal Magistrate in relation to the authority of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, namely, that s 424A of the Act is not engaged by statements which merely point to inconsistencies in an applicant’s evidence.

5. In relation to the second ground of appeal, which is that the Tribunal failed to refer to sufficient independent country information to properly consider the appellant’s application, I am not persuaded that this ground has any force for three reasons.  The first reason is because the decision as to what constitutes sufficient independent country information is a matter for the Tribunal; it is purely a question of fact which is not capable of giving rise to a jurisdictional error and cannot be entered into by this Court.  Secondly, the decision as to what type of independent country information should be consulted is again a matter for the Tribunal which cannot be the subject of review.  Finally, there is no indication either in the submissions of the appellant or on the face of the Tribunal’s reasons as to any way in which other independent country information was not taken into account.  In the absence of any reference to specific material which it is said ought to have been taken into account, this ground of appeal cannot succeed.

6. Accordingly, for these reasons, I conclude that the appeal ought to be dismissed, and that costs be fixed in a lump sum of $2,280.00.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        20 February 2008

The appellants appeared in person
Counsel for the Respondent:	Mr G. Hooper
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008