SZLIV v Minister for Immigration and Citizenship

[2008] FCA 870

FEDERAL COURT OF AUSTRALIA

SZLIV v Minister for Immigration & Citizenship [2008] FCA 870

Migration Act 1958 (Cth) s 424A

SZLIV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 392 OF 2008

BUCHANAN J
11 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 392 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	11 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 392 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	11 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 23 February 2007.  He applied for a Protection (Class XA) visa on 28 February 2007.  A delegate of the first respondent refused to grant the visa on 24 March 2007.  The appellant claimed to be at risk as a Falun Gong practitioner and a person who had encouraged new members to join that movement.  The delegate found, on the basis of independent country information, that it was highly unlikely that a passport would have been issued to the appellant in the circumstances which he alleged.

2. The appellant, on 26 April 2007, applied to the Refugee Review Tribunal (‘the RRT’) for a review of the delegate’s decision. On 21 August 2007 the RRT handed down a decision affirming the decision of the delegate. The decision gives a detailed account of the hearing which took place on 13 June 2007. Following the hearing the RRT wrote to the appellant on 4 July 2007 drawing his attention to a number of matters which might be reasons for deciding that he was not entitled to a protection visa. This letter was sent in accordance with the requirements of s 424A of the Migration Act 1958 (Cth). The appellant replied on 27 July 2007.

3. The decision of the RRT systematically discussed and rejected virtually every factual foundation for the appellant’s claim to fear persecution.  It did not accept that the appellant was a Falun Gong practitioner.  It found that he was not a credible witness ‘because of false information given as part of the application for a protection visa and the large number of inconsistencies in his evidence’.  It drew attention also to the fact that, although in the application for a protection visa the appellant had indicated that he had not travelled outside China before his journey to Australia, it was established by material before the RRT that he had travelled to Singapore and Malaysia in August 2006 on his employer’s business.

4. The factual findings made by the RRT and the merits of its decision are not open to judicial review unless jurisdictional error is established.  The appellant commenced proceedings in the Federal Magistrates Court of Australia (‘the FMCA’) seeking judicial review of the RRT decision on 21 September 2007.  The grounds set out in an amended application for judicial review filed on 29 November 2007 were as follows:

   ‘1.The Tribunal failed to consider the information provided in response of the S424 letter.  The Tribunal had bias against me and failed to consider my claims and the information provided at my hearing.

   2.The Tribunal failed to consider my claims because of the bias against me and the lack of sufficient independent information.

   3.The Tribunal did not give me opportunity to explain the misunderstanding of my claims of the officer at the hearing.  The Tribunal misjudged that my explanation at the hearing were inconsistent.  My application was not considered according to law.’

5. The FMCA considered and rejected each of the grounds relied upon by the appellant (SZLIV v Minister for Immigration & Anor [2008] FMCA 338). The application for judicial review was dismissed with costs on 5 March 2008. On 20 March 2008 the appellant appealed to this Court against the judgment of the FMCA. The grounds of appeal to this Court are as follows:

   ‘1.The Tribunal had bias against me and failed to consider the claims of my application.  The Tribunal misunderstood my explanations at my hearing and wrongly believed that they were inconsistent.

   2.The Tribunal did not provide me adequate particulars of the independent information.

   3.The Tribunal did not provide me an adequate opportunity to respond the substance of the information.’

6. The appellant did not, as directed, file a written submission in support of his appeal.  At the hearing of the appeal he made a short oral submission which did not address either any question of error in the judgment of the FMCA or jurisdictional error in the decision or processes of the RRT.  The substance of the submission was to the effect that he was in need of protection.  The evaluation of that issue is not within the jurisdiction of this Court.  That issue was decided adversely to the appellant by the RRT but no basis has been shown to set aside the RRT’s decision.

7. The appeal must therefore be dismissed.  It is appropriate to dismiss it with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       11 June 2008

The Appellant appeared in person.
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore Lawyers

Date of Hearing:	21 May 2008
Date of Judgment:	11 June 2008