SZKTX v Minister for Immigration and Citizenship
[2008] FCA 222
•4 March 2008
FEDERAL COURT OF AUSTRALIA
SZKTX v Minister for Immigration & Citizenship [2008] FCA 222
CORRIGENDUM
SZKTX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2400 OF 2007GILMOUR J
4 MARCH 2008 (CORRIGENDUM 22 APRIL 2008)
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2400 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SZKTX
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
4 MARCH 2008 (CORRIGENDUM 22 APRIL 2008)
WHERE MADE:
SYDNEY
CORRIGENDUM
1. On page 4, para [15] of the reasons for judgment the paragraph should read: “The appeal be dismissed. I am satisfied [words deleted] on the basis of the affidavit sworn by Miriam Mafessanti the solicitor having the daily carriage of this matter on behalf of the first respondent that the costs claimed are reasonable. The appellant should pay the costs of the first respondent fixed at $2,895.”
I certify that the preceding one (01) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
Associate:
Dated: 22 April 2008
FEDERAL COURT OF AUSTRALIA
SZKTX v Minister for Immigration & Citizenship [2008] FCA 222
SZKTX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2400 OF 2007GILMOUR J
4 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2400 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SZKTX
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
4 MARCH 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2. The appellant should pay the costs of the first respondent fixed at $2,895.
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 2400 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SZKTX
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
4 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the orders made by Federal Magistrate Turner on 21 November 2007 dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2007 and handed down on 22 May 2007. The Tribunal had affirmed the decision of a delegate of the first respondent made on 20 February 2007 not to grant a protection visa.
BACKGROUND
The appellant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 21 December 2006. The appellant claimed he had a well-founded fear of persecution due to his practice of Falun Gong. The appellant claimed that:
(a)He began practising Falun Gong in 1999 after being introduced to it by his colleague;
(b)While participating in Falun Gong with a group of practitioners in 2000 he was taken by police into detention and was kicked, deprived of sleep and verbally abused;
(c)He was released one month later after his family paid a fine and provided a signed statement promising that the appellant would no longer practice Falun Gong;
(d)Soon after his release he was dismissed from his job and found it hard to find another;
(e)He continued to practice Falun Gong in secret but was dismissed from his new job, and continued to find it difficult to find a job;
(f)The Public Security Bureau (‘PSB’) continued to inspect his home and warned him that if he continued Falun Gong he would suffer abuse in prison;
(g)His friend helped him obtain a passport and he left China.
PROCEEDINGS BEFORE THE TRIBUNAL
The Tribunal was not satisfied that the appellant was a credible witness due to his “inconsistent, irrational and evasive” evidence, and his “superficial knowledge of Falun Gong”. It was further noted that the appellant left China without difficulty.
The Tribunal found that the appellant did not practise Falun Gong, or suffer any resulting persecution. The Tribunal was not satisfied that the appellant would face a real chance of persecution should he return to China. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE
In his application to the Federal Magistrates Court filed on 14 June 2007, the appellant claimed that:
1.The Tribunal was unsatisfied that I was a well founded fear of persecution for any Convention related reason, the Tribunal made error in this finding.
2.Because of the Bias from RRT, the Tribunal did not refer to any independent information for the consideration of my application. The tribunal failed to carry out its statutory duty.
3.The Tribunal was unsatisfied that there is a real chance that I would suffer harm amounting to persecution if I return to China, The Tribunal made error in this finding.
(Transcribed from the original without alteration or amendment.)
His Honour found that the first and third grounds sought impermissible factual review.
In relation to the second ground his Honour noted that the Tribunal did refer to independent country information, and that there was nothing to show that independent country information was provided by the appellant and ignored by the Tribunal. His Honour found that bias had not been established as there were no particulars and no evidence to substantiate the claim.
NOTICE OF APPEAL
In the Notice of Appeal filed in this Court on 6 December 2007 the appellant’s grounds of appeal were:
1.Federal Magistrate Justice Turner said that there is no jurisdictional error in the decision of the Tribunal; the decision is a privative clause decision, Federal Magistrate Turner made error in this finding.
2.Federal Magistrate Justice Turner said that the Country information was considered by the Tribunal and it has not been shown that the applicant provided country information which was ignored, so the ground was dismissed. Federal magistrate Turner made error in this finding.
(Transcribed from the original without alteration or amendment.)
At the hearing of the appeal before me the appellant sought to introduce new grounds of appeal. This was opposed by the first respondent. The proposed grounds were:
(a)alleged breach by the Tribunal of s 420 of the Act;
(b)an alleged refusal by the Tribunal to grant the appellant an adjournment on the grounds that he was feeling unwell;
(c)alleged ‘bias’ on the part of the Tribunal Member;
(d)generalised argument as to discrimination against sympathisers of and adherents to the Falun Gong movement.
Following argument, I refused to grant the appellant leave to raise these additional grounds and delivered ex tempore reasons for that decision.
REASONING
The first ground of appeal is that the Federal Magistrate erred in failing to find that the Tribunal had not made a jurisdictional error in its decision. The ground is not particularised.
The Federal Magistrate considered the three grounds of judicial review said to demonstrate jurisdictional error on the part of the Tribunal [6]-[16]. I can find no relevant error in his Honour’s reasons or conclusions. This ground of appeal is not made out.
In the second ground of appeal, the appellant challenges the findings below in two respects. The first is that the Federal Magistrate erred in his finding that the Tribunal did refer to independent country information. In the Federal Magistrates court, it was claimed that the Tribunal had been biased by its failure to refer to independent country information. Federal Magistrate Turner dealt with this matter in paragraph [9]–[12] of his decision. His Honour found that the Tribunal did in fact refer to independent country information however the Tribunal rejected the applicant’s claim due to the appellant’s lack of credibility. It is apparent from the Decision Record of the Tribunal that it had regard to Independent Country Information including relevant reports from the USSD Religious Freedom Report 2006; Amnesty International Report 2006 and the Department of Foreign Affairs. This information was expressly taken into account in the Tribunal’s reasons.
The second challenge concerns the Federal Magistrate’s finding that “it has not been shown that the applicant provided country information which was ignored”. There is no evidence to support a contrary finding. There is no evidence that the applicant tendered additional country information. This ground also fails.
CONCLUSION
The appeal should be dismissed. I am satisfied that this is on the basis of the affidavit sworn by Miriam Mafessanti the solicitor having the daily carriage of this matter on behalf of the first respondent. The appellant should pay the costs of the first respondent fixed at $2,895.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 4 March 2008
The Appellant appeared in person: Counsel for the First Respondent: Mr M P Cleary Solicitor for the First Respondent: Clayton Utz Date of Hearing: 4 March 2008 Date of Judgment: 4 March 2008
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