SZJOA v Minister for Immigration and Citizenship

[2008] FCA 120

FEDERAL COURT OF AUSTRALIA

SZJOA v Minister for Immigration and Citizenship [2008] FCA 120

Migration Act 1958 (Cth) s 424A

SZJOA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1961 OF 2007

TAMBERLIN J
19 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1961 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOA
Appellant

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 costs of the respondents in a sum fixed at $2,750.00.

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 1961 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOA
Appellant

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 judgment of a Federal Magistrate which dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which in turn affirmed a decision of a delegate of the first respondent to refuse an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2. When the matter came on for hearing before the Court, the appellant, understandably given of his lack of fluency in the English language and knowledge of the law, was unable to identify any error in the decisions of either the Tribunal or the Federal Magistrate.  There were, however, three grounds raised in the notice of appeal.

3. Having considered the submissions made on behalf of the Minister, I am satisfied that none of these grounds are made out.

4. In relation to the first ground, it is said that the Tribunal failed to consider sufficient independent country information.  However, the additional information, which it is alleged ought to have been considered, was not identified in any way.  The decision as to what constitutes sufficient independent country information is a question of fact and degree which is reserved to the Tribunal.  An unwillingness to consult more independent country information does not, in the usual case of which this is one, amount to jurisdictional error.

5. The second ground is based on s 424A of the Act. As submitted by the Minister, this issue has been thoroughly canvassed in the reasons of the Federal Magistrate. Like his Honour, I am not persuaded that the Tribunal failed to inform the appellant of any information which it ultimately took into account. Rather, the Tribunal’s reasons address inconsistencies in the appellant’s claims, and the mere exposition of such inconsistencies in the Tribunal’s reasons does not amount to a non-compliance with s 424A.

6. The third ground of appeal is based on a claim that the appellant will be persecuted because of his practice of Falun Gong.  Although this ground was effectively withdrawn during the hearing before the Court because the correct pleading related to the appellant’s practice of Chritianity, it is worth noting that the Tribunal did not accept the evidence of the appellant in relation to his Christian beliefs and practice.  Perhaps Falun Gong may have been part of the practices which the appellant claims to have adopted, but in any event the critical factor is that his evidence was rejected on the basis of a lack of credibility.  This rejection has not been attacked or shown to be wrong on this appeal.  Accordingly, no errors in the reasons of the Tribunal or of the Federal Magistrate have been identified.

7. Accordingly, the appeal must be dismissed.  Costs will be fixed at $2,750.00.

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

Associate:

Dated:        20 February 2008

The appellant appeared in person
Counsel for the Respondent:	Ms K. Morgan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008