SZKRL v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKRL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1814

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in proceedings for judicial review – Tribunal’s decision not illogical or irrational.

Migration Act 1958, ss.91R, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZKRL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1637 of 2007

Judgment of: Cameron FM

Hearing date: 26 October 2007

Date of Last Submission: 26 October 2007

Delivered at: Sydney

Delivered on: 26 October 2007

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms. B. Nolan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the amount of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1637 of 2007

SZKRL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China where she claims she was a Falun Gong practitioner. The applicant left China for Australia where she arrived on 10 October 2006. Since arriving in Australia the applicant has participated in Falun Gong activities.

2. The applicant claims to fear persecution in China because of being a Falun Gong practitioner. She also seeks protection because of the closure of her business in January 2006, following inspection of her shop by the authorities, and the confiscation of stock.

3. After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minster's delegate on 7 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.

4. In judicial review proceedings such as this, the Court cannot re-hear the applicant's application for a visa. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157 of 2002 vCommonwealth (2003) 211 CLR 476. 

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant's claim for a protection visa are set out on pages 4 to 9 of the Tribunal's decision (Court Book (“CB”) pages 69 to 74. Relevantly, I summarise them as follows:

   a)when making her application, the applicant made statements including the following:

   i)she became a Falun Gong practitioner in March 2006. Subsequently at the hearing the applicant said that this had been a mis-translation and that in the Chinese version of her statement the date had been written as January 2006;

   ii)in March 2006 the applicant travelled to the Philippines. She came to Australia in October 2006. She practises Falun…