SZJVW v Minister for Immigration and Citizenship [2007] FCA 1229 (31 July 2007)

Last Updated: 15 August 2007

FEDERAL COURT OF AUSTRALIA

SZJVW v Minister for Immigration and Citizenship [2007] FCA 1229

SZJVW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL


NSD 666 OF 2007




BRANSON J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 666 OF 2007

BETWEEN:	SZJVW Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal be refused.
2. The applicant pay the first respondent’s costs fixed in the sum of $850.

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 666 OF 2007

BETWEEN:	SZJVW Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BRANSON J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of the People’s Republic of China. He arrived in Australia in September 2005 as a visitor and applied for a protection visa soon thereafter. He claimed to have been persecuted in the People’s Republic of China because he was a Falun Gong practitioner and to have a fear of further persecution on the same ground should he return to the People’s Republic of China.

2 A delegate of the Minister refused to grant the applicant a protection visa. The delegate was not satisfied that the applicant’s fear of persecution in the People’s Republic of China is well-founded.

3 The applicant sought review of the delegate’s decision by the Refugee Review Tribunal ("the Tribunal"). The Tribunal gave to the applicant, as required by s 424A of the Migration Act 1958 (Cth) ("the Act"), particulars of certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. It also explained why the information was relevant to the review and sought the applicant’s comments on it. The applicant provided comments on the information.

4 After considering the applicant’s comments, the Tribunal took an adverse view of the applicant’s credibility. It did not believe his evidence concerning the problems he claimed to have experienced in China. Indeed, having regard to the applicant’s lack of knowledge of certain fundamental matters concerning Falun Gong, the Tribunal did not accept that he had been practicing Falun Gong in China or in Australia. Nor did it accept that he had come to the adverse attention of the Chinese authorities. So far as the applicant placed reliance on his involvement in activities in Australia that criticised the People’s Republic of China, the applicant did not satisfy the Tribunal that he had engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee (s 91R(3) of the Act).

5 The Tribunal concluded that the applicant was not a person in respect of whom Australia owes protection obligations under the Refugees Convention.

6 The applicant sought judicial review of the decision of the Tribunal by the Federal Magistrates Court. His amended application contained two substantive grounds. He alleged that the Tribunal made a procedural error by not addressing his specific claims concerning his participation in Falun Gong. He complained that the Tribunal had rather placed reliance on country information and made adverse findings concerning his credibility. Secondly, he alleged that the Tribunal failed to look at the facts fairly and reasonably, and disregarded his evidence of involvement in Falun Gong.

7 The learned Federal Magistrate was not satisfied that the applicant’s application for judicial review raised an arguable case for the relief claim. The application was dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

8 In applying for leave to appeal from the interlocutory judgment of the Federal Magistrates Court the applicant has raised four matters. They are that he believes that:

(a) the Federal Magistrates Court dismissed his application unreasonably;
(b) there are arguable aspects raised in his application;
(c) the Tribunal’s decision contains a procedural error; and
(d) the Tribunal failed to consider the importance of new evidence in support of his application.

9 The oral submissions made to the Court today by the applicant differ somewhat from the grounds to which he deposed in his affidavit in support of his application. He drew attention to the fact that he did not give the Tribunal clear answers concerning his relationship with his wife. He stated that the member suspected for that reason that he was not honest. He complained that the Tribunal did not consider other information and did not ask him to provide relevant information about Falun Gong. This complaint goes to the merit of the decision of the Tribunal. It is not a ground of appeal from the decision of the Federal Magistrates Court. In any event, the material before this Court does not suggest that the Tribunal ignored relevant material or did not give the applicant a fair opportunity to show his familiarity with Falun Gong.

10 Additionally, the applicant referred to the fact that his matter had previously been remitted to the Tribunal for re-hearing. He expressed the view that the remittal order indicated some procedural mistake. It is the case that the applicant’s matter was remitted to the Tribunal for a fresh hearing. It was the decision of the Tribunal on that fresh hearing that was the subject of the appeal to the Federal Magistrates Court. There is no reason to conclude that any procedural error that affected the first Tribunal decision also affected the decision which was the subject of the applicant’s application for judicial review.

11 The applicant further referred to not having received free legal advice. He acknowledged that a solicitor contacted him for the purpose of providing him with legal advice. However, it seems that they were not able to communicate. I assume that this was because of language difficulties. I accept that a friend of the applicant subsequently tried to get in contact with the solicitor but that the applicant did not in fact receive free legal advice. That, however, does not constitute an error affecting the judgment of the Federal Magistrates Court. The applicant had no legal entitlement to free legal advice.

12 Finally, the applicant complained of a passage in the reasoning of the Refugee Review Tribunal concerning his passport. The process of reasoning adopted by the Tribunal made reference to independent country information, apparently provided by the Department of Foreign Affairs and Trade. The advice was to the effect that a person wanted by the authorities would find it easier to obtain a passport in a false name than to go through the difficult process of paying bribes to obtain a passport in his or her own name. The Tribunal considered that the fact that the applicant had travelled to Australia on a passport issued in his own name was indicative of his not being of interest to the authorities of the People’s Republic of China. The Tribunal made no error going to its jurisdiction in adopting this process of reasoning.

13 Having considered with care both the decision of the Tribunal and the judgment of the Federal Magistrates Court, I am not satisfied that any error attends the judgment of the Federal Magistrates Court. There would thus be no point in granting the applicant leave to appeal from that judgment. Leave to appeal is for that reason refused.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 13 August 2007

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms S Zarucki
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007