SZKRO v Minister for Immigration
[2007] FMCA 1300
•6 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1300 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 |
| Applicant: | SZKRO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1662 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 6 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1662 of 2007
| SZKRO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 30 March 2007 and was handed down on 24 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon her practice of Falun Gong. Background to the applicant’s claims and the Tribunal decision are set out in paragraphs
2 to 4 of the Minister’s written submissions filed on 24 July 2007.
I adopt those paragraphs for the purposes of this judgment:The applicant claimed to fear persecution as a Falun Gong practitioner in China. She claimed to have been arrested and detained in 2004 for 25 days. Her detention badly affected the business she ran and she closed the business in 2005: court book “CB” 27-28, 41.
The applicant attended a hearing before the Tribunal on 30 March 2007: CB 51.
The Tribunal found the applicant’s confusion at hearing about the state of her business undermined any confidence that her claimed detention had occurred. It also noted her ignorance of the most basic facts about Falun Gong, her inability to name even one of the two exercises she claimed to have practiced and the fact that she does not practice in Australia. The Tribunal was not satisfied that the applicant was ever a Falun Gong practitioner or that she was ever detained, mistreated or that her business was adversely affected. The Tribunal did not accept that she had a well-founded fear of persecution in the reasonably foreseeable future: CB 65.5.
These proceedings began with a show cause application filed on 25 May 2007. That application asserted actual notification of the Tribunal decision on 3 May 2007. On that basis I find that the application was filed within time. The applicant now relies upon an amended application filed on 6 July 2007. No evidence has been filed in support of it. I did not receive the applicant’s affidavit filed with the original application as there is no dispute that the applicant has no intention to go back to China. That is the only material fact deposed to in the affidavit. I did receive the court book filed on 14 June 2007. That includes a copy of the Tribunal decision annexed to the applicant’s original affidavit.
I invited oral submissions from the applicant today, however, apart from restating her fears of persecution, she had nothing to say.
The Minister’s written submissions deal with both the original and the amended application. I agree with and adopt, with necessary amendments, for the purposes of this judgment paragraphs 5 through to 8 of those written submissions:
The original application for judicial review raises three grounds of review. The first ground alleges that the Tribunal failed to consider the “real chance of risk” of being jailed if the applicant returned to the PRC. This ground cannot be established. The Tribunal clearly considered the risk of future harm to the applicant but did not accept there was a “real chance of her suffering harm in China in these or any other ways for reason of her real or imputed political opinion, her membership of a particular social group, or for any other Convention reason, should she return to China in the reasonably foreseeable future”: CB 61.5. The Tribunal’s finding turned on its view of the applicant’s credibility or lack of it. Findings of fact of this nature are not matters which fall within the scope of this Court’s review of the Tribunal’s decision.[1]
The second ground alleges that it was not reasonable for the Tribunal to deny the applicant’s protection visa application. This is not a proper ground of review. In substance the applicant is asking the Court to undertake a review of the merits of the Tribunal’s decision and its assessment of the credibility of the applicant’s factual claims. This is not an appropriate line of attack in an application for judicial review, in which an applicant must identify a jurisdictional error.[2]
The third ground of the application alleges that the Tribunal made a finding that was illogical. No particulars are provided to indicate which finding is said to be illogical. In any event, there is no basis for a claim that there is some legal error which may be established by reason of irrationality or illogicality in the Tribunal’s reasoning.[3]
On 6 July 2007, the applicant filed an amended application. The amended application merely restates the applicant’s claims to fear persecution in the PRC and does not raise a proper ground of review. The applicant’s affidavit sworn 9 May 2007 includes a statement that the applicant has no intention to return to China but again, does not raise any legal ground of review.
[1] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579 – 580 per Gummow and Hayne JJ
[2] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272.
[3] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] per Gleeson CJ.
The applicant has failed to demonstrate an arguable case of jurisdictional error. Neither is an arguable case of such error apparent to me from my own reading of the material. Accordingly, I dismiss the application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,300. Scale costs in this instance would be $2,500. The applicant did not have any submissions on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,300.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 August 2007
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