SZTTM v Minister for Immigration and Border Protection

[2015] FCA 918

FEDERAL COURT OF AUSTRALIA

SZTTM v Minister for Immigration and Border Protection [2015] FCA 918

Citation:	SZTTM v Minister for Immigration and Border Protection [2015] FCA 918
Appeal from:	Application for an extension of time: SZTTM v Minister for Immigration & Anor [2015] FCCA 464
Parties:	SZTTM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 326 of 2015
Judge:	NICHOLAS J
Date of judgment:	12 August 2015
Legislation:	Migration Act 1958 (Cth) ss 36(2), 91R, 476
Date of hearing:	12 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms B Griffin of Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent submitted

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 326 of 2015

BETWEEN:

SZTTM
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	12 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicant pay the first respondent’s costs of the application.

3.The name of the second respondent be amended to Administrative Appeals Tribunal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 326 of 2015

BETWEEN:

SZTTM
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	12 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 19 February 2015 a judge of the Federal Circuit Court, Judge Barnes, dismissed with costs the applicant’s application made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal. By its decision, the Tribunal affirmed a decision of a delegate of the first respondent to refuse the applicant a protection visa. It was not until 2 April 2015 that the applicant filed an application for an extension of time within which to bring an appeal. The application is opposed by the Minister on the ground that the applicant’s proposed appeal has no prospects of success.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 2 January 2013.  She claimed to be a Falun Gong practitioner.  In her visa application she described Falun Gong as her religion.  She said she first came to know about Falun Gong in 1999 when attending university in China and by observing people practising Falun Gong at the Green City Square.

3. The Tribunal did not accept that the applicant practised Falun Gong in China or Australia and was satisfied that were she to return to China she would have no reason to practise Falun Gong and, therefore, would not be at risk of harm for any reason related to Falun Gong.

4. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. On that basis, the Tribunal found that the applicant did not satisfy the criterion set out in s 36(2)(a) of the Act, nor was the Tribunal satisfied that the applicant was a person in respect of whom Australia has a protection obligation under s 36(2)(aa) of the Act.

5. The primary judge’s reasons recite the claims made by the applicant, including details of her alleged arrest and beating by Chinese authorities, and the alleged disappearance of her friend who she claimed to be a Falun Gong leader.  The primary judge referred to the inconsistencies, to which the Tribunal drew attention in its reasons, between the applicant’s written claims and her oral evidence to the Tribunal.  Her Honour also drew attention to other aspects of the applicant’s evidence that the Tribunal considered implausible, and the absence of any other evidence to support her claim to be a practitioner of Falun Gong.

6. It is apparent that the Tribunal was also influenced by the applicant’s lack of knowledge of Falun Gong, its history or its philosophy.  When asked by the Tribunal what she knew about such matters, the applicant was said by the Tribunal to have replied “no idea”.

7. In her reasons for judgment, the primary judge referred to the first three grounds of review in the applicant’s application for review, which her Honour said did no more than repeat factual claims previously made by the applicant in support of her protection visa application.  The primary judge was satisfied that the Tribunal’s credibility findings were open to it for the reasons it gave.  Her Honour was also satisfied that there was nothing irrational, illogical or unreasonable in the Tribunal’s findings such as might provide a basis for finding jurisdictional error. 

8. The primary judge also considered that there was nothing to support an argument that the Tribunal failed to consider the applicant’s claims or any integer of any such claims.  Her Honour also rejected the applicant’s assertion that the Tribunal was biased.  She noted that the fact that the Tribunal did not believe the applicant’s claims was not, in itself, sufficient to establish bias.

9. At today’s hearing the applicant was unable to explain in what respects, if any, she contended that the primary judge’s decision involved any error.  What she instead put to me was that if she were given the opportunity she would call further evidence in support of her claims. 

10. The first and second of the applicant’s proposed grounds of appeal raise a number of factual matters which are either identical or substantially similar to those raised in the application dealt with by the primary judge.  Neither ground identifies any jurisdictional error on the part of the Tribunal nor any error on the part of the primary judge.

11. The third ground states that the Tribunal may have made a jurisdictional error by not taking the applicant’s evidence, or at least some of it, into account. Reference is then made to s 91R of the Act. However, as is clear from the Tribunal’s reasons, s 91R was never engaged in the applicant’s case, because the Tribunal did not accept that the applicant ever practised Falun Gong in Australia.

12. Having considered the Tribunal’s reasons for decision as well as the primary judge’s reasons for judgment, I am satisfied that the applicant’s proposed appeal has no prospects of success.  On that basis I propose to dismiss the application for an extension of time in which to bring an appeal.  There will be orders accordingly.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        24 August 2015