SZJXL v Minister for Immigration and Citizenship

[2007] FCA 1275

FEDERAL COURT OF AUSTRALIA

SZJXL v Minister for Immigration & Citizenship [2007] FCA 1275

SZJXL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 586 OF 2007

BENNETT J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
SYDNEY DISTRICT REGISTRY	NSD 586 OF 2007

BETWEEN:

SZJXL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant is to pay the first respondent’s costs.

3.Leave is granted to the first respondent, if it wishes to pursue an order for fixed costs, to file evidence in support of that application by sending such evidence to the chambers of Bennett J by 4.00 pm on 3 August 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SYDNEY DISTRICT REGISTRY	NSD 586 OF 2007

BETWEEN:

SZJXL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a decision of Smith FM in SZJXL v Minister for Immigration & Anor [2007] FMCA 482. His Honour decided that the applicant was not able to identify an arguable jurisdictional error affecting the decision of the Refugee Review Tribunal (at [12]). His Honour was not satisfied that the application raised an arguable claim for the relief sought and dismissed the case under r 44.12(1)(a) of the Federal Magistrates Court Rules (at [18]). Leave to appeal is required because his Honour’s orders were interlocutory (r 44.12(2)). Such leave should be granted if the decision is attended by sufficient doubt to warrant it being reconsidered by the Court and where substantial injustice would be done if the decision were allowed to stand.

2. In her original visa application, the applicant claimed that she was afraid to return to China because of her practice of Falun Gong.  At the hearing before the Tribunal, the applicant advised the Tribunal that she was not aware of the contents of her written claims and did not pursue those claims at the hearing.  The Tribunal found, based upon what it was told by the applicant at the hearing, that the claims earlier made about her interest and involvement in Falun Gong had no basis in fact.  The Tribunal then proceeded to consider the applicant’s claim to have a well-founded fear of persecution if she returned to China because she had applied for refugee status in another country.  At this hearing before me the applicant, who appears in person assisted by an interpreter, has confirmed that the Tribunal’s record of what took place at the hearing was correct.

3. The draft notice of appeal proposes three grounds of appeal.

   The first ground of appeal

4. The first proposed ground of appeal is that the applicant fears persecution ‘for reason of being a particular group – Falun Gong’.  Either this is an assertion of fact, or of a failure to consider a claim.  In any event, the ground of appeal seems inconsistent with the fact that the applicant told the Tribunal that she was not pursuing a claim to be a member of Falun Gong.  The Tribunal found that the claims made to the Department about the applicant’s interests and involvement in Falun Gong had no basis.  The Tribunal had no reason to consider a claim of practice of Falun Gong which had been abandoned.  To the extent that the first ground of appeal seeks to go to the merits of the Tribunal decision, this Court cannot interfere with findings of fact.

5. The Tribunal did consider the applicant’s claim to fear persecution because an application for refugee status had been made. It considered country information on the consequences of such an application and concluded that the applicant would face nothing more than some questioning upon her return, if she were to come to the attention of the authorities. The Tribunal was not satisfied that this constitutes serious harm within the meaning of s 91R(1) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal considered the general situation of a person who had made a claim to refugee status in another country and concluded that the applicant would not face serious harm upon her return. That finding was open to the Tribunal on the material before it.

6. The Tribunal clearly accepted the applicant’s statement that she had no knowledge of what had been put into her visa application.  Implicitly, the Tribunal was satisfied that the applicant would, in facing nothing more than questioning upon her return, be able to explain why she had sought refugee status and the basis on which she sought it.

7. It does not appear from the Tribunal’s record of the hearing that it was any part of the applicant’s claim that her fear of persecution, because of an application for refugee status, was in any way affected by the fact that the basis of that refugee application was a claimed practice of Falun Gong, or a once-claimed practice of Falun Gong which had been subsequently abandoned.  It does not appear that the applicant claimed that she had any particular concern because the basis for refugee status was, originally, practice of Falun Gong.

8. The applicant does not suggest that the Tribunal failed to consider her claim.  There is no suggestion by the applicant that, in the Tribunal’s consideration of country information or in its reasons generally, there was any distinction to be drawn between the consequences of an application for refugee status generally or an application for a specific reason, such as practice of Falun Gong.  There was no such ground raised in the application before Smith FM.  There was no reference to any relevance of any claimed practice of Falun Gong.

9. Before his Honour, the applicant contended that she had been denied procedural fairness, that it was not reasonable for the Tribunal to state that she would not face significant economic hardship and that the decision was made in excess of the Tribunal’s jurisdiction.

10. A connection between the basis of the application for a protection visa and the once claimed practice of Falun Gong can only be said to arise from a very beneficial reading of the first proposed ground of appeal, combined with the basis for feared persecution that was pressed before the Tribunal.  In this application for leave to appeal the applicant did refer to the consequences of practice of Falun Gong generally, but there was no clarity in the way in which the applicant put her fear of persecution.  I say that without any criticism but note that it is for the applicant to have presented her claims to the Tribunal and to present her proposed grounds of appeal.

11. There is no basis for concluding that the Federal Magistrate arguably was in error in finding an absence of jurisdictional error on the part of the Tribunal.

    The second ground of appeal

12. The second proposed ground of appeal is an allegation of denial of procedural fairness in connection with the Tribunal decision. No particulars have been provided. The applicant was unable to point to any particular matter. When asked for the details of the denial of procedural fairness the applicant referred to the assistance that she had and had not been given in making her application and in the subsequent appeal process. The applicant did not refer to any conduct on the part of the Tribunal. There is nothing before the Court to suggest that there has been any such denial of procedural fairness. There is nothing before the Court to indicate that the Tribunal did not give the applicant a fair hearing or failed to comply with its obligations under the Act.

    The third ground of appeal

13. The proposed third ground of appeal is that the applicant believes that she would face a risk of being ‘put into danger’ if she returned to China.  The Tribunal considered the facts in relation to that claim.  This ground seeks impermissible merits review.

    Conclusion

14. It follows that neither the Tribunal decision nor the decision of the Federal Magistrate are attended by sufficient doubt to warrant any reconsideration by the Court.  Accordingly, the application for leave to appeal is dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        21 August 2007

The Applicant appeared in person.
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007