SZKMC v Minister for Immigration and Citizenship

[2007] FCA 1737

FEDERAL COURT OF AUSTRALIA

SZKMC v Minister for Immigration and Citizenship [2007] FCA 1737

SZKMC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD1206 OF 2007

EMMETT J

8 NOVEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1206 OF 2007

BETWEEN:

SZKMC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs in the sum of $2,000.

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	NSD1206 OF 2007

BETWEEN:

SZKMC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	8 NOVEMBER 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 second respondent, the Refugee Review Tribunal (the Tribunal). 

2. The applicant is a citizen of the Peoples Republic of China.  He arrived in Australia on 25 July 2006 and applied for a protection (Class XA) visa on 21 August 2006.  The delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a visa on 20 October 2006.  The applicant then applied to the Tribunal on 21 November 2006 for review of the delegate’s decision.  On 13 February 2007 the Tribunal affirmed the decision not to grant the protection visa. 

3. On 5 April 2007 the applicant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  On 8 June 2007 the Federal Magistrates Court dismissed the proceeding summarily on the ground that the proceeding did not, on its face, disclose an arguable case.  On 28 June 2007 the applicant filed an application to the Federal Court for leave to appeal from the orders of the Federal Magistrates Court. 

4. On 24 August 2007 the applicant was directed to file and serve no later than five clear working days before the hearing date, full written submissions upon which the applicant seeks to rely in support of his application, and in support of any appeal were the Court to grant leave to appeal.  No such submissions were filed.

5. The appellant appeared in person today without any legal representation.  However, he had the assistance of an interpreter.  When invited to make submissions in support of his application for leave, the applicant simply said that the Tribunal did not assess his case fairly and carefully because “the experiences in [his] claims are true”.

6. In its reasons, the Tribunal observed that the applicant’s claims were brief and amounted to an assertion that he is a practitioner of Falun Gong and that he has practised Falun Gong since 1997, a period of almost 10 years.  The applicant claimed that he had been arrested and detained for a period of one month and three days.  The Tribunal did not accept that the applicant was a witness of truth.  The reason for that is that while the applicant claimed to have been a Falun Gong practitioner for 10 years, at the hearing before the Tribunal he was only able to name exercise 1, but was unable to demonstrate that exercise, saying that he had forgotten how to do it because he had not practised Falun Gong since 2001. 

7. The Tribunal found that the applicant had a total lack of knowledge of the practices central to Falun Gong and he was not a Falun Gong practitioner.  Therefore, the Tribunal concluded that the applicant did not face persecution in China.  The Tribunal considered that the applicant’s lack of understanding of the exercises fundamental to the practice of Falun Gong strongly indicated that he is not a Falun Gong practitioner and that his claims had been fabricated in an attempt to obtain a protection visa.

8. In his application to the Federal Magistrates Court, the applicant stated the following grounds:

   “(1)The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   (2) I am entitled to a protection visa.

   (3)I meet the refugee criteria because I face a risk of being jailed if I return to my original country.”

9. As the Federal Magistrates Court observed, the applicant did not assert any jurisdictional error by the Tribunal. The primary judge observed that orders had been made giving the applicant the opportunity to file and serve an amended application and additional affidavit evidence by 31 May 2007. However, the applicant did not take up that opportunity. The primary judge could not find any jurisdictional error on his perusal of the material. In the circumstances, the primary judge concluded that there was no arguable case disclosed by the application and dismissed the proceeding pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

10. Attached to an affidavit in support of the applicant’s application for leave to appeal is a draft notice of appeal stating the following grounds:

    “(1)The decision made by the Refugee Review Tribunal is illogical.

    (2)The Tribunal member failed to consider my application in a properly [sic] way. 

    (3)I was a Falun Gong practitioner and I was prosecuted by Chinese government.”

11. No attempt was made to point to any error on the part of the Federal Magistrates Court.  Even if I treated the notice of appeal as constituting a statement that the Federal Magistrates Court erred by not upholding his claims to that Court, the grounds clearly do not constitute any basis upon which there could be a finding of jurisdictional error on the part of the Tribunal that would result in any relief being granted.  There would be no utility in granting leave.  The appeal has no substance at all.  Therefore, the application must be dismissed with costs. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        19 November 2007

The Applicant appeared in person.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007