SZKAH v Minister for Immigration and Citizenship

[2007] FCA 837

FEDERAL COURT OF AUSTRALIA

SZKAH v Minister for Immigration & Citizenship [2007] FCA 837

SZKAH v MINISTER FOR IMMIGRATION & CITIZENSHIP

NSD386 OF 2007

EMMETT J
8 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD386 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKAH Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	8 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the Respondent be changed to Minister for Immigration and Citizenship.

2.The application be dismissed.

3.The Applicant pay the Respondent’s costs in the sum of $800. 

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	NSD386 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKAH Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP Respondent

JUDGE:	EMMETT J
DATE:	8 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from orders of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The applicant is a citizen of China who arrived in Australia on 12 April 2006.  He applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) on 19 April 2006. A delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister) refused to grant a visa on 7 July 2006. The applicant then applied on 8 August 2006 for review of the delegate’s decision by the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the decision not to grant a protection visa on 20 November 2006.

2. The reasons of the Tribunal were published on 14 December.  Having commenced a proceeding in the Federal Magistrates Court seeking constitutional writ relief in respect of the Tribunal’s decision, the applicant filed an amended application on 27 February 2007.  On that day the Federal Magistrates Court ordered that the proceedings be dismissed on the basis that it disclosed no arguable case for the relief claimed. 

3. In the amended application the grounds were as follows:

   “(1)     the Tribunal failed to carry out its statutory duty.

   Particulars:

   (a)the only information before the Tribunal was that contained in the first respondent’s file and that given to the Tribunal by the applicant;

   (b)the Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision Migration Act 1958 s 424A. The Tribunal also and was required to explain why the information was relevant and provide the applicant with an opportunity to comment on it;

   (c)the Tribunal referred to wrong independent information for the consideration of my application;

   (d)the Tribunal made a jurisdictional error of law by failing to deal with an integer of the applicant’s claim.”

4. The grounds are garbled and are difficult to understand.  No further particulars were given and apparently nothing was put by the applicant to the Federal Magistrates Court in support of the proceeding to demonstrate that there was at least an arguable case for review of the Tribunal’s decision.

5. Before the Tribunal, the applicant claimed that he would suffer serious harm if he is returned to China because he is a Falun Gong practitioner.  He claimed that he left China because he was worried he would suffer further persecution from the Chinese authorities because of his involvement with Falun Gong in Beijing.  The Tribunal did not accept that if the applicant returns to China now or in the reasonably foreseeable future he will suffer serious harm because he is a Falun Gong practitioner.  The Tribunal did not accept that the applicant is or ever has been a Falun Gong practitioner.  The applicant did not impress the Tribunal as a credible or truthful witness.  The evidence that he gave to the Tribunal was brief, scant and lacked any detail.

6. While the applicant claimed to have been a Falun Gong practitioner since 2000 and claimed to have attended a colleague’s home and practised Falun Gong in private and in public since 2000, his knowledge and understanding of the philosophy and practice of Falun Gong was superficial and generalised.  The Tribunal did not accept the applicant’s explanation that he was uneducated and, therefore, does not have a more detailed knowledge of Falun Gong.  The Tribunal considered that a person who had practised Falun Gong for as long as the applicant claimed, regardless of education level, would be able to demonstrate the exercise upon which the practice was based.  The applicant was not able to do so. 

7. Those reasons indicate a finding on the part of the Tribunal based purely upon its assessment of the evidence before it and the credibility of the applicant.  On the face of it the amended application to the Federal Magistrates Court does not disclose an arguable case. 

8. The applicant nevertheless seeks leave to appeal from the orders of the Federal Magistrates Court made on 27 February 2007.  The affidavit in support makes the following assertions:

   “(1)the Tribunal did not consider my application for a protection according to Migration Act 1958;

   (2)the Tribunal failed to carry out its statutory duty;

   (3)the Tribunal did not notify me the reason or part of the reasons for affirming the decision;

   (4)the Tribunal failed to consider my application according to section 424A of the Migration Act;

   (5)the Tribunal has bias against me and did not consider my application according to section 91R of the Migration Act;

   (6)the Tribunal failed to consider my application claims;

   (7)despite the abovementioned errors, Federal Magistrates Court refused to have hearing for my review application.  My case was dismissed without a formal hearing for my review application.”

   In the draft notice of appeal the same assertions are repeated. 

9. The applicant appeared in person today with the assistance of an interpreter.  When invited to address the Court in support of his application, he said that the Federal Magistrates Court had told him that it did not matter what he wanted to say.  This seems to be an indication that the Tribunal indicated to the applicant that he must demonstrate on the papers at least an arguable case before being given the opportunity of a hearing to demonstrate that there was jurisdictional error on the part of the Tribunal. The applicant’s final comments were that he wished that the government would give him protection.

10. As I have said there is nothing in the application to the Federal Magistrates Court to demonstrate any arguable ground upon which relief could be given in respect of the Tribunal’s decision.  In the circumstances the application for leave to appeal should be refused.

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

Associate:

Dated:        30 May 2007

The applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 May 2007
Date of Judgment:	8 May 2007