SZKRM v Minister for Immigration and Citizenship

[2008] FCA 240

FEDERAL COURT OF AUSTRALIA

SZKRM v Minister for Immigration and Citizenship [2008] FCA 240

SZKRM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2308 OF 2007

BESANKO J
6 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2308 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKRM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

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 2308 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKRM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	6 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate on 6 November 2007. On that date the Federal Magistrate dismissed the appellant’s claim for constitutional writs in relation to a decision of the Refugee Review Tribunal (“Tribunal”).

2. The appellant is a citizen of the People’s Republic of China (“PRC”). He arrived in Australia on 26 January 1996. He applied for a Protection (Class AZ) visa. On 25 June 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused the appellant’s application. The appellant was notified of this decision by letter dated 13 December 2006. He applied to the Tribunal for a review of that decision. On 20 April 2007 the Tribunal decided that the decision not to grant the appellant a Protection (Class AZ) visa be affirmed. In early 1998 the appellant lodged another application for a protection visa under a different name alleging that he was persecuted because of his alleged homosexuality. The Minister did not exercise his discretion to allow a further application by the appellant and the second application was invalid. The appellant subsequently withdrew his claim for protection on the basis of homosexuality.

3. The appellant claimed that he was actively involved in the pro-democracy movement in the PRC in 1989 and while in the PRC he was actively engaged in protests against the Chinese Communist Party. He claimed to fear persecution because of his political opinions. He also claimed that he was born into a landlord’s family and that this led to discrimination against him. He claimed to fear persecution because of his membership of this particular social group. The appellant also claimed that he commenced practising Falun Gong in Australia and that he had close ties with the Falun Gong Association until he became involved with his work. He claimed to fear persecution in China because of his involvement with Falun Gong since arriving in Australia.

4. The Tribunal did not accept the appellant as a witness of truth. It rejected his evidence in a number of areas and in other areas said his evidence was insufficient to support allegations he made.

5. The appellant raised a number of arguments before the Federal Magistrate. He alleged that the Tribunal had incorrectly applied s 91R(3) of the Migration Act 1958 (Cth). The Federal Magistrate said that the Tribunal correctly stated the effect of the subsection and gave proper consideration to the appellant’s alleged conduct in Australia concerning his practice of Falun Gong. The Federal Magistrate noted that by reason of the Tribunal’s findings concerning the appellant’s lack of credibility and the unreliability of his evidence, it was not satisfied that the appellant’s Falun Gong practice in Australia was undertaken otherwise than for the purposes of strengthening his claim to be a refugee. The Federal Magistrate concluded that given the Tribunal’s conclusions as to the appellant’s credibility no error was disclosed by the fact that it was not satisfied that the appellant had undertaken any Falun Gong practice in Australia otherwise than for the purpose of strengthening his claim. The appellant claimed that the Tribunal’s finding that he had engaged in Falun Gong activities for the purpose of strengthening his refugee claim was affected by prejudice. The Federal Magistrate took this to be an allegation of actual bias on the part of the Tribunal. The Federal Magistrate found that the Tribunal had conducted a “bona fide review” and that it had not approached the review with a mind closed to persuasion. The appellant claimed that the Tribunal’s reasoning as to the significance of when he had mentioned his Falun Gong practice was illogical and unreasonable. The Federal Magistrate rejected that submission.

6. The Federal Magistrate referred to the fact that in any event the Tribunal did not accept that the appellant had been practising Falun Gong, privately or publicly, in Australia. The Federal Magistrate said that the reference to s 91R(3) was included for the sake of completeness or out of an abundance of caution and it was not a necessary part of the Tribunal’s reasoning. Even if the Tribunal had erred in its approach to s 91R(3), the Federal Magistrate concluded that it would have had no impact on “the general absence of reviewable error in the Tribunal’s decision”.

7. The appellant claimed that the Tribunal had acted in breach of s 424A of the Act. No particulars were provided in support of this claim. The Federal Magistrate noted that the claim overlooked two letters sent by the Tribunal to the appellant in compliance with its obligation under s 424A. The claim also ignored the evidence given by the appellant at the Tribunal hearing and the independent country information both of which formed important grounds of the Tribunal’s decision. Section 424A(1) was not engaged in relation to those matters. The Federal Magistrate rejected the claim that the Tribunal had acted in breach of s 424A of the Act.

8. The appellant claimed that the Tribunal had ignored evidence but the Federal Magistrate rejected that claim.

9. In the appeal to this Court, there are two grounds of appeal. First, it is said that the Federal Magistrate erred in failing to find that the Tribunal had committed an error of law, jurisdictional error or had not accorded procedural fairness to the appellant. No particulars of this ground are given and none were outlined on the hearing of the appeal. There is nothing to suggest that the Tribunal committed an error of law, jurisdictional error or failed to accord procedural fairness to the appellant.

10. The second ground of appeal is that the Federal Magistrate erred in not taking into account that the appellant had a well-founded fear of persecution involving serious harm and systematic and discriminatory conduct. It is not easy to discern what the appellant is intending to raise by this ground of appeal. It appears not to have been raised before the Federal Magistrate. I think it is answered by the conclusion of the Federal Magistrate that the Tribunal addressed the appellant’s claims and that it was open to the Tribunal to reject those claims on the grounds upon which it relied.

11. Both grounds of appeal fail and, in those circumstances, the appeal must be dismissed.

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

Associate:

Dated:        6 March 2008

The Appellant appeared in person
Counsel for the First Respondent:	Mr M Cleary
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	4 March 2008
Date of Judgment:	6 March 2008