SZKOH v Minister for Immigration

[2007] FMCA 1790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKOH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1790

MIGRATION – Whether the Court can review findings of fact by the Tribunal.

Migration Act 1958 (Cth), ss.424A, 425, 474

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant:           SZKOH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1349 of 2007

Judgment of: Turner FM

Hearing date: 17 October 2007

Date of last submission: 17 October 2007

Delivered at: Sydney

Delivered on: 17 October 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms V. McWilliam

Solicitors for the Respondents: Ms S. Kantaria of Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1349 of 2007

SZKOH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 12 March 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

Background

1. On 9 November 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed to fear persecution from the Chinese authorities because of her practice of Falun Gong.

2. The application was refused by a delegate of the first respondent on 18 November 2006 (CB 34-35) and by the Tribunal on review on 12 March 2007 (CB 69-78).

3. The matter is now before this Court pursuant to an application for judicial review filed on 27 April 2007.

Issues for determination

1. The issue before the Court is as follows:

   ·Whether findings of fact by the Tribunal can be reviewed by the Court.

The application

1. The applicant set out two grounds in her application as follows:

   (1)I am a Falun Gong practitioner.

   (2)I will face real chance of persecution if I return to China.

Findings of the Court in relation to the grounds in the application

1. Both grounds seek to review findings of fact by the Tribunal that were properly open to the Tribunal on the material before it. The Tribunal found for the reasons it stated that the applicant is not a Falun Gong practitioner (CB 77.10, 78.5). The Tribunal found that “there is no real chance that such harm [harm amounting to persecution for a Convention reason] will befall her in the reasonably foreseeable future” (CB 78.5). As stated, those findings of fact were properly open to the Tribunal on the material before it. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. It is not the function of this Court to review findings of fact by the Tribunal.

2. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

   In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal. 

   Both grounds in the application are rejected.

3. The Court finds that the Tribunal complied with s.424A and 425 of the Act. A s.424A letter was sent (CB 62-64) as was a s.425 invitation (CB 51-52). The applicant appeared at the hearing to support her claims (CB 77). The Court finds no breach of the Act or denial of natural justice.

Conclusion

1. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

2. Accordingly, the application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: Mary Giang 

Date: 7 November 2007