SZJVH v Minister for Immigration and Citizenship

[2007] FCA 1743

FEDERAL COURT OF AUSTRALIA

SZJVH v Minister for Immigration and Citizenship [2007] FCA 1743

SZJVH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD1481 OF 2007

EMMETT J
7 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1481 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVH
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 $3,100.

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	NSD1481 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVH
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.  She arrived in Australia on 16 May 2006 and applied for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (the Act) on 22 May 2006. On 28 July 2006, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a visa. On 30 August 2006, the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 25 October 2006, the Tribunal affirmed the decision not to grant a Protection Visa.

2. On 8 December 2006, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking judicial review of the Tribunal’s decision.  An amended application was filed on 26 March 2007.  On 10 July 2007, the Federal Magistrates Court ordered that the application be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $5000.  On 30 July 2007, the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court. 

3. The appellant appeared in person today without legal assistance, although she had the assistance of an interpreter.  The grounds of appeal and her notice of appeal are not particularly illuminating.

4. The appellant claimed before the Tribunal that she feared persecution on the ground that she was a Falun Gong practitioner.  The Tribunal was not satisfied that the appellant is, or ever was, a Falun Gong practitioner.  The Tribunal found the appellant to be unreliable and that her testimony was contradictory in parts.  The Tribunal found her claims were insubstantial and vague.  Most pertinent to the Tribunal’s conclusion that she was not a Falun Gong practitioner, was the appellant’s superficial understanding of what it means to be a Falun Gong practitioner.

5. The Tribunal also found that the appellant’s testimony concerning the harm to which the appellant claimed to have been subjected was vague and considered that her evidence may have been fabricated.  The Tribunal did not accept the appellant’s claims that she was detained and beaten for nine days after visiting her general manager in prison, or that persons knocked at her door telling her to stop practising Falun Gong. 

6. The Tribunal also had regard to the operation of s 91R(3) of the Act, which provides that conduct engaged in by an applicant in Australia must be disregarded in certain circumstances.  The Tribunal was not satisfied that the appellant’s involvement in Falun Gong in Australia was otherwise than for the purpose of strengthening her claim to be a refugee.  In any event, the Tribunal considered that the appellant did not become deeply involved in the practice in Australia, given her low level of knowledge about the practice and her own evidence about the number of times she had attended practice sessions. 

7. In her amended application to the Federal Magistrates Court, the appellant adopted a formula that regularly appears in such applications.  The grounds were was follows:

   “1.The Tribunal failed to consider my application for a protection visa according to section 91R of the Migration Act. The Tribunal failed to consider my claims and failed to refer to proper independent information for consideration of my application.

   2.The Tribunal failed to consider my application in accordance with section 424A of the Migration Act (1958). The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.”

8. There then followed, as purported “Particulars”, a formulaic statement that appears regularly in applications of this nature, which is completely devoid of particulars.

9. The Federal Magistrates Court accepted and adopted, for the purposes of its reasons, the written submissions made by the Minister.  The primary judge found that the Tribunal’s decision was free from jurisdictional error.  That conclusion appears to be justified, since the Tribunal made a factual finding that was unfavourable to the appellant. 

10. The notice of appeal to the Federal Court specifies the following grounds: 

    “1.The Tribunal failed to carry out its statutory duty. The Tribunal failed to consider my application in accordance with section 424 of the Migration Act 1958. The Tribunal had not notified me in writing the reason or part of the reasons for affirming the decision.

    2.The Tribunal had bias against me and did not consider my application according to Migration Act (1958).

    3.The Tribunal failed to refer to proper independent information for the consideration of my application for a protection.”

11. In her oral submission today, the appellant was unable to advance any grounds at all, other than a bald reference to s 424A of the Act.  She made no attempt to outline any grounds upon which this court should conclude that there was error on the part of the Federal Magistrates Court, or that the Federal Magistrates Court should have found jurisdictional error on the part of the Tribunal.  It follows that the appeal must be dismissed.

I certify that the preceding eleven (11) 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.
Counsel for the First Respondent:	B.K. Nolan
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	7 November 2007
Date of Judgment:	7 November 2007