SZKSH v Minister for Immigration and Citizenship

[2008] FCA 259

FEDERAL COURT OF AUSTRALIA

SZKSH v Minister for Immigration and Citizenship [2008] FCA 259

SZKSH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2333 OF 2007

BESANKO J
7 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2333 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	7 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 2333 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	7 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order made by a Federal Magistrate. On 7 November 2007 a Federal Magistrate dismissed the appellant’s claims for constitutional writs in relation to a decision made by the Refugee Review Tribunal on 29 March 2007.

2. The appellant is a citizen of the People’s Republic of China. She arrived in Australia on 30 September 2006 and on 5 October 2006 she applied for a Protection (Class XA) visa. A delegate of the Minister for Immigration and Multicultural Affairs refused her application on 7 December 2006. The appellant applied to the Tribunal for a review of that decision. On 29 March 2007 the Tribunal affirmed the decision of the delegate.

3. In her application for constitutional writs, the appellant relied on the following grounds:

   1.The Tribunal failed to consider my claims. The Tribunal had bias against me when considered my application. The decision was not made in accordance with s 91R of the Migration Act 1958.

   2.The Tribunal failed to refer to sufficient independent information for the consideration of my application. The “country information” was out to day [sic].

   3.The Tribunal did not believe that I am genuine Falun Gong member based on assumption, not evidence.

4. In her amended application for constitutional writs the appellant contended that:

   1.The Tribunal made a jurisdictional error of law by failing to deal with an integer of my claims.

   2.The Tribunal also committed jurisdictional error by failing to give me in accordance with s 424A of the Migration Act 1958 (the Act) notice in writing of particulars of information that formed part of the reasons for affirming the decision of delegate.

   (a)The Tribunal’s s 424 [sic] letter did not conform with requirements of s 424A.

5. Each of the grounds in the application and amended application respectively were considered by the Federal Magistrate.

6. In relation to the allegation of bias, the Federal Magistrate noted that no particulars were provided and no evidence had been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. In relation to the allegation that the Tribunal failed to consider the applicant’s claims, the Federal Magistrate said that a careful reading of the Tribunal’s reasons indicated that that was not the case. In relation to the allegation that the Tribunal failed to apply s 91R of the Migration Act 1958 (Cth) (“the Act”), the Federal Magistrate noted that the Tribunal set out the relevant law relating to that section and tested the applicant’s claims against the requirements of the section. He said that no error of law had been demonstrated.

7. In relation to the claim that the Tribunal failed to refer to sufficient independent information and that the country information was out of date, the Federal Magistrate said that the country information referred to by the Tribunal was published in 2004 and it had not been shown that it was out of date. There was nothing in the documents to indicate that the appellant referred to any other country information. The Federal Magistrate said that the Tribunal was not required to make out the appellant’s case for her.

8. In relation to the allegation that the Tribunal rejected the appellant’s claim to be a genuine Falun Gong member based on assumption and not evidence, the Federal Magistrate said that the Tribunal was entitled to accept or reject the evidence of an applicant, and that is what the Tribunal did in this case.

9. In relation to the appellant’s claim that the Tribunal committed jurisdictional error by failing to deal with an integer of the appellant’s claims, the Federal Magistrate said that that had not been established and the ground was rejected for the same reasons as those for which the first ground in the application had been rejected.

10. In relation to the allegation that the Tribunal failed to comply with s 424A of the Act and that the letter it sent in purported compliance with that section did not meet the requirements of the section, the Federal Magistrate said that the letter set out the information that could be the reason or could be part of the reason for affirming the decision of the delegate and it set out under separate subheadings the relevance of the information. The appellant was invited to comment on the information and, indeed, she responded by letter. The Federal Magistrate held that the appellant had not established a failure to comply with s 424A of the Act.

11. In her notice of appeal to this Court, the appellant raises the following grounds of appeal:

    1.The Tribunal had bias against me and refused my application based on some wrong information and materials. My application was not considered according to s 91R of the Migration Act 1958.

    2.The Tribunal failed to refer to sufficient independent information for the consideration of my application.

    3.The Tribunal did not believe that I am a genuine Falun Gong member based on assumption, not evidence.

12. In her oral submissions the appellant largely repeated those assertions and she did so without elaboration. The assertions mirror the grounds in her application for constitutional writs, and each of them was dealt with by the Federal Magistrate. In my opinion, there is no error in the reasons the Federal Magistrate gave for rejecting each ground.

13. In addition to the matters in the notice of appeal, in her oral submissions the appellant asserted that the Tribunal had rejected her application without sufficient reason and basis, and that it had considered her application by reference to irrelevant and unreliable material. She also asserted that the Tribunal had not assessed the chance that she would be persecuted because she practised Falun Gong. These assertions which again were put forward without elaboration or particulars must be rejected. The fact is that the Tribunal did not accept that the appellant was a Falun Gong practitioner in China, or that she continued to be a Falun Gong practitioner in Australia. The Tribunal did not accept that the appellant’s then husband introduced her to Falun Gong in 1998. A number of claims which followed from these claims were also rejected by the Tribunal. It has not been demonstrated that these conclusions were not reasonably open to the Tribunal and there is nothing to suggest that the Tribunal committed a jurisdictional error.

14. The appeal must be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        7 March 2008

The Appellant appeared in person
Counsel for the Respondent:	Ms N Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 March 2008
Date of Judgment:	7 March 2008