SZKMI v Minister for Immigration and Citizenship

[2007] FCA 1657

FEDERAL COURT OF AUSTRALIA

SZKMI v Minister for Immigration and Citizenship [2007] FCA 1657

SZKMI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1690 OF 2007

ALLSOP J
30 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1690 OF 2007

BETWEEN:

SZKMI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	30 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal be dismissed.

2.The applicant pay the first respondent’s costs of the application

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 1690 OF 2007

BETWEEN:

SZKMI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	30 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal against orders made by the Federal Magistrates Court on 17 July 2007, in which the Federal Magistrate dismissed the application for judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 20 February 2007, handed down on 13 March 2007.  In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa. 

2. The applicant had lodged an application for a protection visa with the Department on 28 August 2006.  She made claims for protection under the Refugee Convention, by reason of an asserted adherence to Falun Gong.  A delegate of the Minister refused the application on 10 November 2006.  On 11 December 2006, the applicant applied to the Tribunal for a review of that decision.  It is that review application which resulted in the decision of the Tribunal affirming the decision of the delegate. 

3. The applicant is a citizen of the People’s Republic of China who claimed that she was persecuted due to her practice of Falun Gong.  She claimed to have been detained in 1999 and to have witnessed the torture of other Falun Gong adherents.  The Tribunal found that the applicant was not a credible witness and rejected her claims.  Part of the reasoning process of the Tribunal was based on a talk that a Dr Penny had given to the Tribunal to assist in the Tribunal’s acquisition of specialist knowledge about Falun Gong and China. 

4. On the day after the hearing, the Tribunal sent a letter to the applicant requesting the provision of information and comments. The letter was discussed in the reasons for judgment of the Federal Magistrate. The Federal Magistrate refused to accept it as a letter under s 424A of the Migration Act 1958 (Cth). Nevertheless, it put the applicant on clear notice of issues concerned with Dr Penny’s talk and the importance of them to her claims.

5. The Federal Magistrate said that the decision of the Tribunal did not turn on any information required to be disclosed under s 424A. That, with respect, is a correct conclusion if Dr Penny’s material can be classified as falling within s 424A(3)(a). In other words, the Federal Magistrate was correct if that material was information, not specifically about the applicant or another person, but just about a class of persons of which the applicant or other person is a member. In my view, the material is of that character and, therefore, s 424A was not engaged. That was one of the reasons that led to the Tribunal’s conclusion that it did not accept the applicant’s evidence.

6. The application before the Federal Magistrate had three grounds of review. The first was a breach of s 424A. The Federal Magistrate rightly rejected that, in my view. The second and third grounds of review were set out in [2] of the Magistrate’s reasons, and were as follows: -

   …

   The second ground of review alleges that the Tribunal failed to consider whether the applicant would be persecuted if she returned to the PRC because of her membership of a particular social group ("Second Ground").

   The third ground of review appears to assert that the Tribunal's decision was not based on "rational" or "logical foundation" ("Third Ground").

7. The Federal Magistrate dealt with these grounds in [7] of his reasons, as follows: 

   I accept the Minister’s submissions in relation to the second and third grounds of review.  I adopt, with any necessary amendments, paragraphs 28 to 31 of those written submissions:

   ‘The second and third grounds are not proper grounds of judicial review.  They seek, in essence, a merits review of the Tribunal’s decision.  Merits review of the Tribunal’s decision is impermissible.

   The Tribunal plainly made its decision based on a finding that the applicant was not a credible witness.  The Tribunal found that the applicant’s claim that she was a Falun Gong practitioner was not convincing by reason of the adverse credibility finding.

   A decision as to the credit of the applicant is not open to review in this Court.  Findings as to credit are a matter for the administrative decision maker par excellence: see Re Minister for Immigration; Durairajasingham (2000) 168 ALR 487.

   Further, contrary to the applicant’s assertion, the Tribunal did consider whether the Applicant would suffer persecution if she returned to the PRC and concluded that “the chance that such harm will befall her in the reasonably foreseeable future is remote”.’

8. The draft notice of appeal attached to the applicant’s affidavit sets out one ground of appeal, directing a complaint that the Refugee Review Tribunal failed to comply with its obligation pursuant to the Migration Act and denied the applicant procedural fairness.  No particulars are given in that document to illuminate how the Federal Magistrate erred in the exercise of the judicial power in the Federal Magistrates Court.  I asked the applicant today to address me on how she complained of the failure of the Federal Magistrate and the Tribunal.  She was unable to assist me.  I appreciate that the applicant is not legally represented and has no legal training, however, questions of procedural fairness and natural justice are often able to be enunciated by the person who considers him or herself to have been treated unfairly. 

9. I have read the Tribunal’s reasons and the reasons of the Federal Magistrate.  I am not able to identify any apparent jurisdictional error in the Tribunal, nor any error in the Federal Magistrate’s approach. 

10. This of course, is not the appeal, but an application for an extension of time to allow an appeal.  The applicant was two weeks out of time.  The applicant has not given a satisfactory explanation about it.  Nevertheless, had there been what I considered to be an arguable basis for the appeal, the question of time may well not have loomed very large in my decision.  Given that I am not able to identify any basis for an argument that the Federal Magistrate erred, I see no utility in granting an extension of time to permit a futile appeal. 

11. For those reasons, the orders of the Court will be:

    1.The application for an extension of time to file and serve a notice of appeal be dismissed.

    2.The applicant pay the first respondent’s costs of the application.

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

Associate:
Dated:        16 November 2007

The applicant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 October 2007
Date of Judgment:	30 October 2007