SZLFE v Minister for Immigration and Citizenship

[2008] FCA 898

FEDERAL COURT OF AUSTRALIA

SZLFE v Minister for Immigration & Citizenship [2008] FCA 898

SZLFE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 470 OF 2008

BUCHANAN J
12 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 470 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLFE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	12 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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 470 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLFE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	12 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant in this case arrived in Australia on 14 February 2007.  She is a citizen of the People’s Republic of China.  On 8 March 2007 she applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa.  On 24 March 2007 a delegate of the Minister for Immigration and Citizenship (‘the Minister’) refused to grant a protection visa.  The appellant made an application to the Refugee Review Tribunal (‘the RRT’) on 24 April 2007 for a review of the delegate’s decision.

2. The appellant claimed to be a Falun Gong practitioner who was mistreated in China as a result.  At a hearing before the RRT on 6 June 2007 there was an extensive discussion between the member of the RRT and the appellant about her practice of Falun Gong and her reasons for leaving China.

3. On 19 July 2007 the RRT handed down a decision in which it affirmed the decision of the delegate to refuse the appellant a protection visa.  In its decision the RRT said, amongst other things, in its ‘Findings and Reasons’ the following:

   ‘The applicant claims that she is a Falun Gong practitioner and that she commenced practising Falun Gong in 1996.  She claims that she was detained in China because of this and she fears that if she returns to China she will be jailed again.  In Australia she says that she feels free to practice Falun Gong.

   The Tribunal found the applicant to be neither a truthful nor credible witness.  Her evidence before the Tribunal was internally inconsistent and unconvincing.  In the first instance the applicant sought to read material which she had brought with her to the hearing and which she had written on paper before her.  This was information relating to a number of principles of Falun Gong and some teachings of Master Li Hongzhi.  The applicant initially sought to read from the document before her and when the Tribunal indicated that it preferred to hear of her own personal knowledge and understanding of Falun Gong she was unable to paraphrase the information and she was unable to speak, discuss or explain the facts which had been put to paper either by her or on her behalf.

   In response to the Tribunal’s questions about Falun Gong the applicant said that she commenced in 1996.  She said at one point that she practised from 1996 until early 1997 and she did not practice again thereafter.  Later she said that she was detained once in 1996 for nearly two months.  She said that she was released in July 1996 and she did not practice Falun Gong again after that.  She also told the Tribunal at that stage that nothing else had happened to her again after that.  She confirmed the Tribunal’s stated understanding that she did not practice again and was never again detained in China because of Falun Gong after 1996.  Later in the hearing however in response to further questions put to her by the Tribunal the applicant said that she suffered a larger torture in 2004.  She explained that she did the exercises again and someone must have seen her and reported her.  She then said that she was detained again for two months and released in April 2004.  When the Tribunal drew the applicant’s attention to these inconsistencies she sought to explain them, saying that she is nervous and her memory is not good.  The Tribunal does not accept that nervousness or poor memory can account for what are major inconsistencies in relation to events which the applicant has allegedly experienced.’

4. After the decision of the RRT was handed down the appellant, on 20 August 2007, filed an application for judicial review in the Federal Magistrates Court of Australia (‘the FMCA’).  The judgment of the FMCA (SZLFE v Minister for Immigration and Anor [2008] FMCA 244) records (at [6]-[7]):

   ‘6.The original application filed on 20 August 2007 contains two un-particularised grounds of review:

   1.The Tribunal has not fully addressed my claim that I [was] tortured by Chinese government.

   2.There was no evidence or the other materials to justify the making of the decision.

   At the first Court date, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 9 November 2007.  She filed an amended application on 31 October 2007 which does not contain any grounds of review but substantially repeats the statement attached to her visa application.

   7.The applicant also declined the opportunity to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice.

   …

   11.The amended application indicates that the applicant and whoever was assisting her had no comprehension of its purpose or how to identify issues in the review.  Considered together with the Tribunal’s decision, the applicant’s statement and the amended application, it is not apparent that any jurisdictional error was made by the Tribunal in the comparison between the original statement and the evidence given at the hearing. However, I believe it is appropriate to consider the grounds of review of the application filed on 20 August 2007.’

5. The Federal Magistrate went on to consider the two grounds in the original application and reject them.  The Federal Magistrate also made it clear that he had independently considered whether there was any basis to conclude that a jurisdictional error had occurred in the decision-making process of the RRT and that no such ground of review existed.  As a result the application for judicial review was, on 20 March 2008, dismissed.

6. The appellant then filed the present appeal on 8 April 2008.  The grounds of the appeal are stated as follows:

   ‘1.The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the applicant.

   2.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

   3.That the decision involved an error of law, whether or not the error appears on the record decision.’

7. These grounds of appeal raise no case for consideration of any kind.  The first ground does not make any real sense.  The second and third grounds appear an attempt to invoke legal principles but they are quite inadequate to direct attention either to any alleged error in the judgment of the FMCA or any jurisdictional error in the decisional processes of the RRT.

8. The appellant did not, as directed, file a written submission in support of the appeal.  At the hearing of the appeal she indicated that she did not wish to make any oral submission.  The appeal to this Court has, therefore, been only an empty formality which has imposed a further cost on the Minister, who appeared by counsel, and has done nothing to advance any legitimate interest of the appellant.

9. No jurisdictional error is apparent from the decision of the RRT.  The assessment of the appellant’s claims and evidence is a matter committed to the RRT and is not, unless jurisdictional error is committed, a matter which is subject to review in this Court or in the FMCA.  I see no error in the approach taken by the FMCA which clearly indicates that the FMCA considered for itself whether any possible case of jurisdictional error arose from the decision of the RRT, independently of the grounds advanced for the application for judicial review.

10. The appeal has no substance and must be dismissed.  It is appropriate, as sought by the Minister, that it be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       12 June 2008

The Appellant appeared in person.
Counsel for the First Respondent:	Mr H P T Bevan

Date of Hearing:	23 May 2008
Date of Judgment:	12 June 2008