SZJUY v Minister for Immigration and Citizenship

[2007] FCA 1118

FEDERAL COURT OF AUSTRALIA

SZJUY v Minister for Immigration and Citizenship [2007] FCA 1118

Federal Court of Australia Act1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 91R, 424A
Federal Magistrates Court Rules rule 44.12(1)(a)

SZJUY v The Minister for Immigration and Citizenship [2007] FMCA 497

SZJUY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 585 OF 2007

HEEREY J
1 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 585 OF 2007

BETWEEN:

SZJUY
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed at $1,600

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 585 OF 2007

BETWEEN:

SZJUY
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE:	1 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal against a decision of the Federal Magistrates Court, SZJUY v The Minister for Immigration and Citizenship [2007] FMCA 497. The Federal Magistrate dismissed the application for an order to show cause pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules on the basis that it failed to disclose an arguable case for the relief claimed. The orders of the Federal Magistrate were discretionary under rule 44.12 and therefore interlocutory and the applicant requires leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2. In the Federal Magistrates Court the applicant sought to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse him a protection visa.  The details of the visa application, the Tribunal’s decision and the reasons of the Federal Magistrate are more particularly set out in the Federal Magistrate’s decision which is available on the Internet. 

3. The basis for the applicant’s claim was an alleged well-founded fear of persecution in China by reason of being a member of Falun Gong.  He claimed that he became a member of Falun Gong in 1997 and promoted its work to his colleagues at a printing factory where he worked.  He claimed that although Falun Gong was made illegal in 1999 he and his converts continued their activities, in particular printing leaflets promoting Falun Gong.  He claimed that he attended a protest in Beijing where he was caught by the authorities and mistreated severely.  He claimed that in 2005 he was caught at his factory printing illegal promotional leaflets and after paying a substantial sum to secure his release, he arranged to travel to Australia.

   The decision of the Tribunal

4. The Tribunal on 5 September 2006 wrote to the applicant under s 424A of the Migration Act 1958 (Cth) raising matters about his passport entries and inconsistencies in his visitor visa application and protection visa application. On 27 September the applicant wrote a response to that letter.

5. The Tribunal did not accept that the applicant had anything but a cursory familiarity with Falun Gong.  It referred to independent information regarding Falun Gong practitioners.  The Tribunal noted that the applicant had shown little or no interest in practising Falun Gong since arriving in Australia. 

6. The Tribunal was not satisfied that the applicant had practised Falun Gong in the past or that he would in the future.  The applicant produced dentures to the Tribunal and claimed that his teeth had been knocked out in the course of his arrest and mistreatment but there was no evidence to show any link between the alleged mistreatment and the lost teeth.  The Tribunal also noted that the applicant was able to leave and return to China without difficulty after he allegedly suffered harm.  The Tribunal did not accept that the applicant worked in a printing factory.  It found it highly unlikely that an employer would allow staff to engage in illegal activities for six years when those actively promoting Falun Gong were hounded and persecuted by the authorities.  The Tribunal rejected the claim that the applicant was involved in printing Falun Gong material and was detained and ill treated as a result. 

   The decision of the Federal Magistrate

7. Before the Federal Magistrate the grounds raised were:

   1.bias and failure to consider the application in accordance with s 91R of the Act;

   2.failure to consider proper independent information;

   3.failure to consider the response to the s 424A letter because of bias;

   4.making a decision based on assumptions when there was no evidence or material to support the decision.

8. The Magistrate was unable to identify any jurisdictional error which was even arguable.  His Honour noted that the applicant’s application followed “unhelpful precedents” and no substance could be found in any of the claims.  The claims lacked particularity.

   The appeal to the Federal Court

9. The application for leave to appeal to this Court set out the proposed grounds which were basically the same as those advanced to the Magistrate.  In this Court the applicant was not represented but was assisted by an interpreter.  When invited to put any matters to the Court he asked the Court to review his case.  He said at the time (which I take to be the time before the Tribunal) he was not allowed to say anything and everything was spoken in English and he didn’t understand.  The hearing before the Tribunal was conducted with an interpreter in Mandarin.  There was also an interpreter assisting the applicant in his application before the Magistrate.  I am satisfied that there is no arguable ground for an appeal against the decision of the Magistrate.  The decision of the Tribunal was plainly based on its assessment of the applicant’s credibility and was within jurisdiction.  The grounds are no more than formulaic invocations of generalised arguments. 

10. The application will be dismissed with costs fixed at $1600.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY.

Associate:

Dated:        1 August 2007

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Michael Snell
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 August 2007
Date of Judgment:	1 August 2007