SZLAR v Minister for Immigration and Citizenship

[2008] FCA 772

FEDERAL COURT OF AUSTRALIA

SZLAR v Minister for Immigration and Citizenship
[2008] FCA 772

Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

SZLAR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 303 OF 2008

GORDON J
27 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GORDON J
DATE OF ORDER:	27 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.

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 303 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GORDON J
DATE:	27 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal against an order of Federal Magistrate Cameron of 14 February 2008 dismissing an application for judicial review of a decision of a delegate of the first respondent (“the delegate”) to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2. The appellant is a citizen of the People’s Republic of China (“the PRC”).  He first entered Australia on 9 August 2006.  On 23 August 2006, the appellant lodged an application for a protection visa claiming to have a well-founded fear of persecution because he is practitioner of Falun Gong.

3. In refusing the appellant’s visa application on 16 November 2006, the delegate did not accept that appellant had a well founded fear of persecution and faced persecution upon return to his country. 

4. On 16 February 2007, the appellant lodged an application for review of the decision with the second respondent, the Refugee Review Tribunal (“RRT”).  At the invitation of the RRT, the appellant appeared before the RRT on 27 April 2007 to give evidence and present arguments in his favour.

5. On 2 May 2007, in light of s 424A of the Act, the RRT invited the appellant to comment on particular information that would form at least part of the reasons for refusing the appellant’s application for a protection visa. On 21 May 2007, the appellant responded in writing to the matters raised by the RRT.

6. On 21 June 2007, the RRT affirmed the delegate’s decision not to grant the appellant a protection visa.  The RRT found the appellant not to be a “reliable, credible and truthful witness”.  It found that he had “a propensity to exaggerate and tailor his evidence in a manner which achieved his own purpose”.

7. On 9 October 2007, the appellant filed with the Federal Magistrates Court (“FMC”) an amended application for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act. There was a single ground of review – that the RRT failed to exercise its jurisdiction because it failed to comply with ss 425A and 426 of the Act. At the hearing before Federal Magistrate Cameron, the appellant raised additional grounds which were, in substance, an invitation to reconsider the merits of the appellant’s application for a protection visa.

8. On 14 February 2008, Federal Magistrate Cameron dismissed the application.  No jurisdictional error on the part of the RRT had been identified. 

9. On 5 March 2008, the appellant filed his Notice of Appeal in this Court.  The grounds of appeal were stated in the following terms:

   1.The member of the [RRT] said; “the [appellant] demonstrated some knowledge of Falun Gong ideals and the exercises.  The [RRT] also considered the supporting letters, documents and the photographs he has submitted with regard to his involvement in Falun Gong related activities in Australia, including his purported denouncement of the Communist Party as reflected in the document submitted at the hearing.  However, having regard to the [appellant’s] overall creditability or lack thereof, The (sic) [RRT] is of the view that his knowledge of Fallun (sic) Gong and his ability to carry out the exercises may have been required (sic) in Australia for the purpose of strengthening his case.” … The above view is quite unfair for me.  The [RRT] fell into jurisdictional error.

   2.I think The Honourable Federal Magistrate Cameron FM should not affirm the [RRT’s] view.

   Consideration of the grounds of appeal

10. This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The question on appeal is whether the FMC decision is affected by some legal, factual or other error:  Allesch vMaunz (2000) 203 CLR 172 at [23]. It is not a re-examination of the decision of the RRT. Section 28(1) of the Federal Court Act provides that, on appeal, the Court may affirm, reverse or vary the decision of the FMC and make such judgment or order as, in all of the circumstances, is appropriate including that the FMC decision be set aside and the proceeding remitted to the RRT for further determination.

11. The grounds of appeal bear no relationship to the case advanced in the FMC.  For the reasons outlined below, I am not satisfied that the decision of the FMC is affected by any error, whether as alleged or at all.

    Alleged jurisdictional error

12. The RRT was required by law to direct its attention to relevant information and material that was available, consider information and material it was required by law to take into account, and ensure that in considering such material it did not ask itself any wrong questions: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (per Mason J). The RRT was responsible for assessing the merits of the appellant’s claims and the evidence put in support of his application for a protection visa.

13. Revisiting factual disputes is beyond the scope of judicial review and cannot be relied upon as a means of identifying jurisdictional error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Moreover, the weight to be given to particular evidence is a matter for the RRT and not for the Court: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [95] (per Emmett, Weinberg and Lander JJ). In assessing the appellant’s claims, the RRT may make adverse rulings where there is evidence before it to do so: Applicant A125 (2007) 163 FCR 285 at [75].

14. In the present case, there is nothing to suggest that the RRT did not give full consideration to the claims before it. Moreover, based on relevant country information for the PRC, it formed conclusions that were reasonably open to it. What the appellant now seeks is merits review of the RRT’s fact finding function. That is not the role of this Court: see Part 8 of the Act.

15. This ground of appeal is without merit and must be dismissed.

    Unfairness

16. The second aspect of the notice of appeal is simply that the RRT’s findings were “unfair”.  No particulars were provided.  This ground of appeal is also without merit and must be dismissed. 

17. Unsurprisingly, there was no allegation of a denial of procedural fairness or natural justice (see [4] and [5] above).  

    Other matters

18. The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate.  I cannot identify an appellable error.  In my opinion, an appeal would have no prospects of success.

    ORDERS

19. For these reasons, the appeal should be dismissed and the appellant should pay the first respondent’s costs to be taxed in default of agreement.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated:        27 May 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr G Kennett
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	27 May 2008
Date of Judgment:	27 May 2008