SZLUG & Anor v Minister for Immigration and Citizenship

[2008] HCASL 565

SZLUG & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 565
S380/2008

1. The applicants, husband and wife, are nationals of the People's Republic of China.  They arrived in Australia in May 2007 and applied for protection visas, claiming to be "refugees" within the Refugees Convention and Protocol.

2. A delegate of the Minister refused their applications.  The applicants then sought review by the Refugee Review Tribunal ("the Tribunal").  The relevant evidence was given by the applicant husband.  The claim to protection of the wife was derivative.

3. The applicant husband claimed to fear persecution on the basis of his practice of Falun Gong.  He asserted that he had faced financial penalties in China on this account and that, in 2004, he had been arrested, gaoled for six months and tortured.

4. The Tribunal found that the applicant had not been truthful with respect to his alleged adherence to Falun Gong.  It found that the applicant had been able to provide only basic level information concerning Falun Gong despite his claim to have been connected with the movement since 1998.  It also noted inconsistencies with respect to his claim to have practised Falun Gong in Australia.  The Tribunal noted the unlikelihood that the applicant would have been issued with a Chinese passport if he had been convicted as a Falun Gong practitioner.  The Tribunal therefore concluded that the evidence was fabricated and that no protection obligations were owed to the applicants.

5. The applicants sought judicial review from the Federal Magistrates Court. In that court, Driver FM considered the complaint that the Tribunal had failed to put to the applicant husband the issue of the authenticity of documentary evidence on which he sought to rely. However, the document concerned was provided by the applicant husband and the Federal Magistrate concluded that there was no obligation of disclosure in accordance with s 424A of the Migration Act 1958 (Cth) ("the Act"). Nor was there any obligation of disclosure pursuant to s 425 of the Act. Having found no breach of the foregoing sections, or of s 91R(3) of the Act, the Federal Magistrates Court found no jurisdictional error in the Tribunal's decision. It therefore dismissed the application for judicial review.

6. On appeal to the Federal Court of Australia, Jessup J rejected the applicants' complaints concerning the Tribunal's treatment of the documentary evidence.  His Honour found no error on the part of the Federal Magistrate in his treatment of that issue.  He rejected the balance of the complaints which appeared to be concerned with the factual merits of the case, and not with any jurisdictional error or other legal error.  The appeal was dismissed.

7. The draft notice of appeal to this Court repeats the suggested breach of s 425 of the Act. However, much of the applicants' written case is devoted to factual assertions of the kind dealt with below.

8. The Tribunal's decision was open to it on the material before it and does not reveal any breach of the Act or of the requirements of procedural fairness. There would be no prospects of success were special leave granted. Accordingly, the application is dismissed.

9. In accordance with Rule 41.10.5 of the High Court Rules we direct the Registrar to draw up, sign and seal an order dismissing the application.

M. D. Kirby	J. D. Heydon
2 December 2008