SZKFM v Minister for Immigration and Citizenship
[2008] FCA 214
•4 March 2008
FEDERAL COURT OF AUSTRALIA
SZKFM v Minister for Immigration & Citizenship [2008] FCA 214
SZKFM v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2100 OF 2007
EDMONDS J
4 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2100 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKFM
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
4 MARCH 2008
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 $1,500.
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 2100 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKFM
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentJUDGE:
EDMONDS J
DATE:
4 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Magistrates Court (SZKFM v Minister for Immigration & Citizenship & Anor [2007] FMCA 1680 (Nicholls FM)) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.
BACKGROUND
The appellant is a citizen of the People’s Republic of China who arrived in Australia on a temporary business visitor’s visa on 22 August 2006 and claims to be a Falun Gong practitioner.
The appellant applied for a protection visa on 21 September 2006. The appellant claimed that he had commenced practising Falun Gong in 1996 after being introduced to Falun Gong by a work colleague. The appellant claimed that he had been detained by the Public Security Bureau (‘PSB’) for a year and that he feared that he would be detained if he were to return to China. This application was refused by a delegate of the Minister on 14 October 2006.
On 17 November 2006 the appellant filed an application for review of the decision of the Minister’s delegate with the Tribunal. On 16 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the appellant a protection visa.
On 15 February 2007 the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision. An amended application was filed on 18 May 2007. On 5 October 2007 the Federal Magistrates Court dismissed the application, as amended, 18 May 2007.
APPEAL TO THIS COURT
Notice of Appeal
The appellant’s notice of appeal to this Court raises two of the three grounds argued below, namely:
1.That the Tribunal should not have found that the appellant was not a Falun Gong practitioner in China on the basis alone that he had insufficient knowledge of Falun Gong exercises.
2.The Tribunal failed to consider the appellant’s claims and ignored the answers the appellant gave to its questions.
ANALYSIS AND CONCLUSION
The appellant filed no written submissions in respect of these grounds or otherwise in support of his appeal. Through an interpreter, he declined to say anything when his appeal was called for hearing. The Minister relied on the written submission he had filed prior to the hearing.
In respect of the first ground, at [22] his Honour below observed:
‘Any plain reading of the Tribunal’s decision record reveals that it considered the applicant’s claims as put to it and that it found that the applicant was not a practitioner of Falun Gong. Such a finding was plainly open to the Tribunal for all the reasons that it gives, but also for the reason that the applicant was not able to demonstrate any of the very basic exercises central to the practice of Falun Gong, beyond his capacity, in relation to one exercise, to provide “fairly perfunctory” movements.’
In respect of the second ground, at [24] and [25] his Honour observed:
‘Again, for all the reasons to which I have already referred, this finding was clearly open to the Tribunal. It was open to the Tribunal to reject the applicant’s explanations. A plain reading of the Tribunal’s decision record (the only evidence of what occurred at the hearing) reveals that the Tribunal considered each of the applicant’s claims as put in the statement attached to his application for a protection visa and as put by the applicant himself at the hearing before the Tribunal.
If the applicant intends to assert by what is set out in ground three that the Tribunal ignored his answers to its questions, it is plain that the Tribunal did not ignore the applicant’s answers but that it did not accept them as adequate explanations. It may be, however, that the applicant puts forward this complaint and uses the word “ignored” to say that the Tribunal did not accept his answers. The simple answer to such complaint is that there is no obligation on the Tribunal to uncritically accept what the applicant has put to it (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437). It is the function of the Tribunal to examine and consider what has been put to it either by way of claim or explanations. If the Tribunal, in making its findings of fact, does not accept such claims, no error of law is revealed merely by the Tribunal making such a finding. So long as the finding is open to it on the material before it, and in this case, that was the situation, and the Tribunal gave reasons for its findings, there is no error of law.’
There is no error of law, jurisdictional or otherwise, in the Tribunal’s decision and there is no error that I can discern in his Honour’s review of that decision.
For these reasons, the appeal must be dismissed with costs. The Minister relied on an affidavit, which I gave leave to be filed in Court, in support of a fixed costs order in the sum of $1,500.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 4 March 2008
Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondents: Sparke Helmore
Date of Hearing: 3 March 2008 Date of Judgment: 4 March 2008
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