SZJUW v Minister for Immigration and Citizenship

[2007] FCA 1744

FEDERAL COURT OF AUSTRALIA

SZJUW v Minister for Immigration and Citizenship [2007] FCA 1744

SZJUW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1193 OF 2007

EMMETT J
7 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1193 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJUW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	7 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the sum of $1,300.

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	NSD1193 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJUW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	7 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China.  He arrived in Australia on 15 February 2006 and applied for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (the Act) on 30 March 2006. A delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a visa on 17 June 2006. The appellant then applied to the second respondent, the Refugee Review Tribunal (the Tribunal), on 18 July 2006 for a review of the delegate’s decision. On 11 October 2006, the Tribunal affirmed the decision not to grant a Protection Visa.

2. The appellant then commenced a proceeding in the Federal Magistrates Court of Australia on 6 December 2006, seeking judicial review of the Tribunal’s decision.  On 7 June 2007, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $3950.  By notice of appeal filed on the 27 June 2007, the appellant appealed to the Federal Court from the orders of the Federal Magistrates Court.

3. The appellant appeared in person today without any legal representation, although he had the assistance of an interpreter.  When invited to make submissions in support of the appeal, the appellant said that it would be best if he could stay longer in Australia.  He made no effort to address any error on the part of the Federal Magistrates Court.

4. While the Tribunal accepted that the appellant is a citizen of the Peoples Republic of China, it did not accept his claims that he was a Falun Gong practitioner and that he would be persecuted if he returned to China.  The Tribunal was not satisfied that the appellant was a genuine Falun Gong practitioner because he displayed little or no knowledge of the principles or practice of Falun Gong.  The Tribunal outlined in some detail the particular matters that it took into account in concluding that the appellant was not a genuine Falun Gong practitioner.  The Tribunal was, therefore, not satisfied that there was a real chance that the appellant would suffer serious harm if he were to return to China now, or in the reasonably foreseeable future.  While the Tribunal found that the appellant may perform an exercise routine, it was not satisfied that that routine involved the practice of Falun Gong.  The appellant did not claim to fear persecution for any other reason and the Tribunal was not satisfied that he would be of any interest to the authorities if he returned to China. 

5. The grounds of the appellant’s application to the Federal Magistrates Court were that “the [Tribunal’s] decision was affected by Jurisdictional error in that the [Tribunal] acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning”.  The particulars did not support that proposition.  They were as follows:

   “•The Tribunal stated in the decision that there is not a real chance of persecution as the [appellant] practises his exercises at home and is not a genuine Falun Gong practitioner so he would be of no interest to the authorities.

   •By making the above finding the Tribunal incorrectly assumed that a genuine Falun Gong practitioner must practice in public. 

   •By making the above finding, the Tribunal incorrectly assumed that only those Falun Gong practitioner [sic] who practice in public will be persecuted by the Chinese government.”

   They were not in fact the findings of the Tribunal.

6. The Federal Magistrates Court carefully examined the findings that were made by the Tribunal and the alleged lack of logic in the Tribunal’s reasons.  The primary judge considered that the appellant’s arguments were not correctly premised on how the Tribunal actually reasoned. 

7. The only ground in the notice of appeal for this Court is as follows:

   “[The appellant] claims that the [Tribunal’s] finding that there is not a real chance of persecution as the applicant practices his exercises at home and is not a genuine Falun Gong practitioner so he would not be of interest to the authorities.  By making the above finding the Tribunal incorrectly assumed that a genuine Falun Gong practitioner must practice in public.  By making the above finding the Tribunal incorrectly assumed that only those Falun Gong practitioners who practices in public will be persecuted by the Chinese government.  [The appellant] contests that a Falun Gong practitioner who practices at home may also be targeted by the Chinese Government upon his return to China.  The Federal Magistrates Court did not deal with this claim properly.”

   That appears to be an assertion that the Federal Magistrates Court erred in not accepting the grounds of the application to that Court. 

8. As I have said, the primary judge examined the reasons of the Tribunal and could not see anything illogical or unreasonable in the Tribunal’s reasons that could constitute jurisdictional error, affecting its decision.  I have been unable to discern any error on the part of the Federal Magistrates Court.  It follows that the appeal must be dismissed. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        19 November 2007

The Appellant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 November 2007
Date of Judgment:	7 November 2007