SZMAK v Minister for Immigration and Citizenship
[2008] FCA 1746
•18 November 2008
FEDERAL COURT OF AUSTRALIA
SZMAK v Minister for Immigration and Citizenship [2008] FCA 1746
Migration Act 1958 (Cth), s 424A
SZMAK v Minister for Immigration & Anor [2008] FMCA 1131 upheld
SZMAK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1360 of 2008
FOSTER J
18 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1360 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMAK
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
18 NOVEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, fixed in the sum of $2,100.00.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1360 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMAK
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE:
18 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate (SZMAK v Minister for Immigration & Anor [2008] FMCA 1131) delivered on 8 August 2008 in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 February 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 30 August 2007. On 21 September 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the first respondent”). A delegate of the first respondent refused the application for a protection visa on 25 October 2007.
On 26 November 2007, the appellant applied to the Tribunal for a review of that decision.
Before the Tribunal, the appellant claimed to have a well-founded fear of persecution due to his practice of Falun Gong. He claimed that he had been arrested, tortured and interrogated in October 2006 and forced to reveal details about other Falun Gong practitioners. Before the Tribunal, the appellant altered the claims which he was making by stating that he himself had not practised Falun Gong but rather had assisted his girlfriend, a Falun Gong practitioner, in distributing Falun Gong material such as CDs. The appellant stated that he had been detained for approximately one day in January 2007 and not in October 2006 as he had stated in his written claim. He asserted that he was thereafter required to report regularly to police.
The Tribunal found that there were significant inconsistencies between the claims made in the appellant’s protection visa application and his evidence before the Tribunal. One example of such inconsistencies was the retraction by the appellant of his claim to be a Falun Gong practitioner. Another was the difference in the dates advanced by him as the dates of his arrest. A third example comprised the differing versions as to the information which he had been forced to divulge when under interrogation.
The Tribunal did not consider that these inconsistencies were attributable to the poor knowledge of English of the person who had allegedly completed the written application for the appellant. Rather, the Tribunal accepted that it was the appellant himself who had filled out that application form albeit with some assistance. The appellant had also demonstrated proficient English language skills at the hearing.
Moreover, the Tribunal found that the appellant’s failure to seek protection in Europe when he travelled there in November 2006 was inconsistent with his being a genuine Falun Gong practitioner.
Accordingly, the Tribunal did not accept that the appellant had been a Falun Gong practitioner nor did it accept that he had distributed Falun Gong material as alleged by him. Similarly, the Tribunal rejected his assertion that he had suffered consequential persecution in China. For these reasons, the Tribunal did not accept that the appellant had a well-founded fear of persecution in China.
In the proceedings before the Federal Magistrate, the appellant claimed that:
(1)The Tribunal did not believe his claims because of assumptions made by the Tribunal rather than as the result of careful consideration of the evidence which was properly before the Tribunal;
(2)The Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”);
(3)The Tribunal failed to refer to relevant and up to date independent information; and
(4)The Tribunal failed to consider that the appellant had been practising Falun Gong in Australia and that his activities in Australia might cause further persecution upon his return to China.
The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that the Tribunal had carefully considered all of the available material and had reached its conclusions based upon a fair understanding of that material. Her Honour was satisfied that the findings of the Tribunal were open to it on the evidence before it, whilst noting that it was not a function of the Federal Magistrates Court to engage in an impermissible merits review.
As to the ground advanced by the appellant before the Federal Magistrate concerning non-compliance with s 424A of the Act, the Federal Magistrate held that the inconsistencies in the appellant’s evidence did not constitute “information” which required written notification in accordance with the provisions of that section. Her Honour noted that the Tribunal identified the issue of the inconsistencies in the appellant’s evidence for his comment or response at the Tribunal hearing and stated that there was no obligation to notify the appellant in writing of these issues pursuant to s 424A(1) of the Act.
As far as the contention based upon country information was concerned, the Federal Magistrate stated that the Tribunal had not referred to country information in its decision but had based its decision on the inconsistencies in the appellant’s evidence. Her Honour noted that the selection of which country information to use and rely upon is a matter for the Tribunal.
As far as the assertions of practice of Falun Gong in Australia were concerned, the Federal Magistrate found that there was no evidence to support that claim nor was there any evidence that such alleged practice might lead to further persecution should the appellant return to China.
Her Honour held that, in the circumstances summarised above, there was no obligation on the Tribunal to consider matters not put before it by the appellant.
There was a further claim made by the appellant before the Federal Magistrate that the questioning during the Tribunal hearing had been oppressive. This claim was rejected by the Federal Magistrate.
In this Court, the following Grounds of Appeal are specified in the Notice of Appeal, namely:
1.The Tribunal had bias against me and believed that I fabricated my evidence about my involvement with Falun Gong. The Tribunal mentioned it at the decision letter sent to me.
2.The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons.
3.The Tribunal failed to assess the chance of my persecution because of my practice of Falun Gong.
This matter was listed before me at 10.15 am on Tuesday of last week, 11 November 2008, at which time there was no appearance either by or on behalf of the appellant. At that time, I took the view that there was perhaps some difficulty in the form of the notification which the appellant had received concerning the venue for the hearing fixed for last week. Pursuant to a direction made by me, Mr Snell, who appears on behalf of the first respondent, sent further notification letters to the last known addresses of the appellant. Mr Snell has filed an affidavit, sworn by him on 11 November 2008, which establishes satisfactory compliance with the direction which I made last week. When the matter was called on this morning, once again there was no appearance either by or on behalf of the appellant.
No attempt whatsoever has been made to make good the above Grounds of Appeal. On the material before me, none of the three grounds set out in the Notice of Appeal has been established.
I consider that the Grounds of Appeal contained in the Notice of Appeal do not demonstrate any reviewable error. Grounds 1 and 3 simply raise impermissible merits review grounds and, in any event, are not supported by any evidence. Ground 2 has not been made out and, in any event, is based upon a false premise.
In those circumstances, the appeal will be dismissed with costs.
Mr Snell applies for a fixed costs order in the amount of $2,100.00. In support of that application, he reads the affidavit of Bernadette Marie Rayment. I propose to make that order. So I amend my previous order to include the fact that the order for costs is in a fixed sum of $2,100.00.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 24 November 2008
The Appellant did not appear Solicitor (Appearing) for the First Respondent: Mr P Snell of Sparke Helmore Solicitor for the Respondents: Sparke Helmore
Date of Hearing: 18 November 2008 Date of Judgment: 18 November 2008
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