SZKIQ v Minister for Immigration & Citizenship

[2007] FCA 1885

FEDERAL COURT OF AUSTRALIA

SZKIQ v Minister for Immigration & Citizenship [2007] FCA 1885

IN THE MATTER OF SZKIQ v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1251 OF 2007

JACOBSON J
15 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1251 OF 2007

BETWEEN:

SZKIQ
APPELLANT

AND:

Minister for Immigration & Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:

Jacobson J

DATE OF ORDER:

15 November 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   That the appeal be dismissed.

2.   That the appellant pay the costs of the first respondent assessed pursuant to order 62 rule 4(2)(c) in the amount of $1700.

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	1251 OF 2007

BETWEEN:

SZKIQ
APPELLANT

AND:

Minister for Immigration & Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:	Jacobson J
DATE:	15 November 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Turner FM on 13 June 2007. His Honour dismissed an application made under Rule 44.05 of the Federal Magistrates Court Rules. The appellant applied under that rule for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal.

2. The Tribunal’s decision was signed on 22 January 2007 and apparently handed down on 13 February 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

3. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 25 July 2006.  He applied for a protection visa in August 2006 and a delegate of the Minister refused to grant the visa on 20 October 2006. 

4. The appellant claimed to have a well-founded fear of persecution in China on the ground that he was a practitioner of Falun Gong.  His claims were set out in an unsigned submission which was referred to in some detail by the Tribunal in its reasons.

5. The Tribunal did not accept that the appellant was a practitioner of Falun Gong.  It gave five reasons for this finding.  The reasons are summarized in five bullet points set out on p 7 of the Tribunal’s reasons. 

6. In substance, the Tribunal found that the appellant had committed “serious errors” in answers to basic questions involving the principles of belief in Falun Gong.  The Tribunal said that he had shown a lack of knowledge of the crucial exercises which are performed by adherents of Falun Gong.  The Tribunal was not satisfied from the appellant’s responses to its questions at the hearing that he had ever been a practitioner of Falun Gong. 

7. The Tribunal, as I have said, gave other reasons in support of its finding.

8. Turner FM set out at [6] the relevant excerpts from the decision of the Tribunal, highlighting in particular the important findings of fact made by the Tribunal against the appellant. 

9. Turner FM recorded at [8] the three reasons why the appellant sought an order in respect of the Tribunal’s decision.  The first was that there was no material to demonstrate that he was not a Falun Gong practitioner when he was in China.  The second was that the making of the decision was illogical.  The third was that he faces a risk of being tortured if he goes back to China.

10. The learned Federal Magistrate referred to authority of the Full Court of the Federal Court which states the well-known principle that in order for an applicant to succeed, it is necessary to show jurisdictional error on the part of the Tribunal, and that whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put by an applicant to the Tribunal.

11. The Federal Magistrate found that the findings of fact made by the Tribunal were properly open to it.  His Honour also found that there was no basis to the claim of illogicality, and that the finding made by the Tribunal, that the appellant would not face persecution if he returned to China, was a finding of fact that was not open to review. 

12. Accordingly, the Federal Magistrate dismissed the application.

13. The appellant’s notice of appeal was filed on 3 July 2007.  It repeats the three grounds which were put to the Federal Magistrates Court. 

14. No error has been demonstrated in the Federal Magistrate’s rejection of the illogicality ground.  The well-known decisions of the High Court, including the decision in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, support the finding of the Federal Magistrate on that issue.

15. The other two grounds of appeal seek to raise factual complaints about the decision of the Tribunal.  Indeed, when the appellant addressed me this morning his only submission was that he disagrees with the decisions made by the Tribunal and the Federal Magistrates Court.  It is plain, therefore, that the appellant’s only complaints are about factual findings made by the Tribunal.  No error has been shown in the decision of the Federal Magistrate that the factual findings were properly open to the Tribunal. 

16. It follows that the appeal must be dismissed.

17. The orders I will make are:

    1. That the appeal be dismissed.

    2. That the appellant pay the costs of the first respondent, assessed pursuant to Order 62 rule 4(2)(c) of the Federal Court Rules, in the amount of $1700.00.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             29 November 2007

The Appellant was self-represented.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 November 2007
Date of Judgment:	15 November 2007