SZKLU v Minister for Immigration and Citizenship

[2007] FCA 1846

FEDERAL COURT OF AUSTRALIA

SZKLU v Minister for Immigration and Citizenship [2007] FCA 1846

SZKLU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1607 OF 2007

EMMETT J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1607 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	16 NOVEMBER 2007
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 $1,600.

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	NSD1607 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

16 NOVEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China, who arrived in Australia on 2 October 2006.  On 5 October 2006, the appellant applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). On 2 November 2006, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a visa. On 5 December 2006, the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 23 February 2007, the Tribunal affirmed the decision not to grant a protection visa.

2. Having been notified of the Tribunal’s decision on 15 March 2007, the appellant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision on 4 April 2007.  On 25 July 2007, for reasons published on that day, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $2,500.

3. On 14 August 2007, the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court.  The grounds of appeal do not refer to any error on the part of the Federal Magistrates Court but to asserted errors on the part of the Tribunal.  Having regard to the fact that the appellant does not speak English and appears without legal representation I would be prepared to treat the notice of appeal as stating, as grounds of appeal, that the Federal Magistrates Court erred in failing to hold that the Tribunal made the errors asserted in the notice of appeal.

4. On 30 August 2007 the appellant was directed to file and serve written submissions no later than five clear working days before the hearing date of the appeal.  She has not done so.  When asked to address the Court in support of her appeal, the appellant simply said that she is a genuine Falun Gong practitioner and wished to be granted a protection visa.  She did not make any submission in support of her grounds of appeal.

5. The grounds of review relied on before the Federal Magistrates Court were as follows:

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

   (2)The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

   (3)The Tribunal failed to fully consider the real situation in China. 

   None of those grounds is particularised in any manner.  The errors asserted in the notice of appeal to this Court are the same as the grounds before the Federal Magistrates Court, but in a different order. 

6. In its reasons of 23 February 2007, the Tribunal noted that the appellant’s claims to be entitled to a protection visa were based on Convention grounds of membership of a particular social group and imputed political opinion.  The case was essentially that she was a Falun Gong practitioner in China until Falun Gong was banned in 1999.  She claimed that in December of that year she was questioned by the police and was subsequently required to report to the police on a monthly basis until her departure from China.  She claimed that she feared going back to China because she would not be afforded freedom.

7. The Tribunal was prepared to accept that the appellant was introduced to Falun Gong in 1990 and began to practise Falun Gong publicly in 1993 as an alternative to Tai Chi and solely for the purposes of improving her health. However, the Tribunal found that the appellant’s commitment to Falun Gong before 1999 was not strong and that she practised at her convenience and when she had the time.  Given the appellant’s profile, the Tribunal did not consider it credible that the mere fact of her being in contact with other practitioners compelled the authorities to waste their resources to question her about the matter as she claimed or that the authorities had any interest in her.

8. The Tribunal found that the appellant had not been practising Falun Gong in Australia and did not claim that she wishes to practise Falun Gong in returning to China.  The Tribunal was satisfied that the appellant was of no interest to the Chinese authorities prior to her departure from China.   The Tribunal was also satisfied that the appellant would be of no interest to the authorities if she returned to China and that there was no real chance that she would face harm for the reason of her past association with Falun Gong if she were to return to China now or in the reasonably foreseeable future.  The Tribunal therefore concluded that the appellant was not a person to whom Australia has protection obligations under the Refugees Convention. 

9. The Federal Magistrates Court in its reasons of 25 July 2007 had regard to the reasons of the Tribunal.  The primary judge observed that the appellant filed no written outline of her submissions and simply told the Court that she was a Falun Gong member and wanted a fair judgment.  She asserted that she had told the Tribunal the truth.  The primary judge then dealt with each of the three grounds specified in the application and observed that no evidence had been adduced in support of any of the claims.  His Honour considered that having read the reasons of the Tribunal, those reasons disclosed no failure to comply with provisions of the Act.  His Honour was unable to discern that any arguable case for jurisdictional error had been made out. 

10. There is nothing before me to indicate that there was any error on the part of the Federal Magistrates Court.  In the circumstances the appeal must be dismissed. 

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: 3 December 2007

The Appellant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 November 2007
Date of Judgment:	16 November 2007