SZKIW v Minister for Immigration and Citizenship
[2008] FCA 263
•6 March 2008
FEDERAL COURT OF AUSTRALIA
SZKIW v Minister for Immigration & Citizenship [2008] FCA 263
Migration Act 1958 (Cth)
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBYR V Minister for Immigration & Citizenship (2007) 235 ALR 609SZKIW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2293 OF 2007
EDMONDS J
6 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2293 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKIW
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
6 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 2293 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKIW
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
6 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Magistrates Court (SZKIW v Minister for Immigration & Citizenship [2007] FMCA 1846 (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 arrived in Australia on 17 July 2006. He applied for a protection visa on 11 August 2006. The delegate’s decision refusing the visa was made on 5 October 2006. The appellant applied to the Tribunal for review on 6 November 2006. The Tribunal held a hearing on 10 January 2007, signed its decision on 15 January 2007 and handed it down on 8 February 2007.
The appellant claimed to fear persecution for reason of his religion in China. He claimed to have practised Falun Gong since 1997. He claimed that after the 1999 ban on Falun Gong he was arrested twice in 1999. The first time he had to attend a brainwashing class the same day, and was then released; the second time he was arrested and detained for a week and again made to attend a brainwashing class, before his family bailed him out and promised they would stop him practising Falun Gong in future. He claimed he then relocated to Shanghai and did not suffer any further arrests.
The Tribunal found the appellant was not credible, noting his knowledge of Falun Gong was not consistent with his claim to have practised for ten years, that he had provided no endorsements from local Falun Gong organisations, and concluded that the appellant had embellished his claims of past harm because of his Falun Gong practice and had fabricated his claims in an effort to be granted the visa. The Tribunal also noted that the appellant had confirmed lying in his business visa application, and was able to depart China on a passport in his own name indicating he was not of interest to the Chinese authorities. The Tribunal concluded the appellant’s claimed fears were not well founded.
The Tribunal’s conclusion that the appellant was not credible is a finding of fact par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The Tribunal’s findings were open to the Tribunal for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
FEDERAL MAGISTRATES COURT
Before his Honour the appellant relied upon a ‘template’ amended application that did not specifically relate to the Tribunal’s decision. The first ground claimed that the Tribunal was biased and did not act in accordance with s 91R of the Migration Act 1958 (Cth) (‘the Act’), without particulars. His Honour found no evidence of bias or of a breach of s 91R: at [10], [11] and [21]. The second ground claimed that the Tribunal did not comply with s 424A of the Act again without particulars. His Honour found no breach of s 424A having regard to SZBYR V Minister for Immigration & Citizenship (2007) 235 ALR 609 at [15] – [22], noting that the Tribunal’s thought processes or preliminary conclusions are not ‘information’ within s 424A(1) of the Act at [19], [20], [24] and [25]. His Honour also rejected some complaints made orally by the appellant.
APPEAL TO THIS COURT
The notice of appeal does not identify any error in his Honour’s decision and simply makes broad allegations concerning the Tribunal’s decision that are meaningless in the absence of particulars. It also again asserts a breach of s 424A, which fails for the reasons given by his Honour.
The appellant filed no written submissions. From the bar table, through a Mandarin interpreter, he made a number of generalised statements/allegations concerning the Tribunal’s decision of the kind made before his Honour below. The appellant identified no error in his Honour’s reasons.
CONCLUSION
The appeal must be dismissed with costs, which I give in the sum of $1,500.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 6 March 2008
Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Sparke Helmore
Date of Hearing: 5 March 2008 Date of Judgment: 6 March 2008
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