SZIMY v Minister for Immigration & Citizenship [2007] FCA 249 (26 February 2007)

Last Updated: 12 April 2007

FEDERAL COURT OF AUSTRALIA

SZIMY v Minister for Immigration & Citizenship [2007] FCA 249

SZIMY v MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2046 OF 2006

CONTI J
26 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2046 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIMY Appellant
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	26 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2. The Refugee Review Tribunal be joined as the second respondent.
3. The appeal be dismissed.
4. The appellant pay the first respondent’s costs fixed at $2,000.

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 2046 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIMY Appellant
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE:	26 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from the judgment of Federal Magistrate Driver given on 3 October 2006. His Honour dismissed an application for an order to show cause filed in the Federal Magistrates Court on 15 March 2006, involving proceedings whereby the appellant sought review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 21 February 2006. The Tribunal decision affirmed the earlier decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 18 October 2005 to refuse the appellant a protection visa.

2 The appellant is a citizen of the People’s Republic of China and claims to be a Falun Gong practitioner. She complained as to having been monitored, questioned, threatened, and detained by government officials. She testified that her mother was a Falun Dafa practitioner who had been detained in the past in China by government officials, and that she feared she would be detained and imprisoned if subsequently returned to China.

3 The appellant’s claims were originally set out in her protection visa application. She also provided a short statement of her claims to the Tribunal and clarified her claims at the Tribunal hearing.

Decision of the Tribunal

4 The Tribunal was not satisfied that the appellant was a Falun Gong practitioner, due principally to a number of problems with the evidence she gave at the hearing. It found for instance that her level of knowledge of Falun Gong did not conform to that expected of a genuine practitioner, and she appeared to give rehearsed answers to certain questions asked by the Tribunal member, and was not familiar with any of the individual exercises, key concepts or visual symbols of Falun Gong.

5 The Tribunal further found the appellant’s conduct since her arrival in Australia reinforced its views that she was not a genuine Falun Gong practitioner, and in that regard pointed to her negligible interest in Falun Gong since arriving in Australia.

6 In the result, the Tribunal did not accept the authenticity of any of the appellant’s Falun Gong-related claims, and was accordingly not satisfied that she had a well-founded fear of persecution.

Decision of the Federal Magistrates Court

7 On 15 March 2006, the appellant filed an application in the Federal Magistrates Court for review of the Tribunal’s decision, together with an affidavit in support which contained assertions on her part in unspecific terms that the Tribunal was biased against her, had failed to provide her with particulars of information that was the reason or part of the reason for affirming the decision under review, and had further failed to provide a rational and logical foundation for refusal of her application for review.

8 On 31 May 2006 the appellant filed an amended application to the Federal Magistrates Court. On 14 July 2006 she filed a further amended application which asserted that the Tribunal had breached s 91R of the Migration Act 1958 (Cth) (‘the Act’), and moreover that the Tribunal was biased against her.

9 The matter was listed for a show cause hearing on 14 June 2006. Driver FM identified two issues for the Minister to address at the substantive hearing listed on 3 October 2006, being whether the Tribunal had breached either s 424A or s 91R(3) of the Act.

10 The appellant appeared in person (with the assistance of a Mandarin interpreter) at the final or ultimate hearing in the Federal Magistrates Court conducted on 3 October 2006. Driver FM found that with the exception of the issues concerning ss 91R and 424A, there was no substance to the appellant’s grounds for review of the Tribunal’s decision, and in particular no evidence to support her allegations of bias or apprehended bias. His Honour further found that the Tribunal had considered all of the appellant’s claims and that no relevant consideration had been overlooked, and further that the Tribunal had properly performed its task by attempting to reach a state of satisfaction on the available material in relation to the review application. No error is in my opinion revealed in relation to this approach.

11 Moreover as to the alleged breach of s 91R(3) of the Act, Driver FM observed that the same may only be enlivened in circumstances where an applicant for review seeks to rely upon conduct in Australia to support a claim to have a well-founded fear of persecution, his Honour citing SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2006] FCA 648 at [30]- [31]. His Honour found that this was not a case where an applicant relied upon conduct in Australia to strengthen a protection visa claim, but was a case instead concerned with the situation where the Tribunal reached conclusions from the available material about a lack of activity in Australia. The appellant’s conduct in Australia, involving her failure to communicate with Falun Gong practitioners or to join public practice sessions here, was plainly not conduct engaged in to support her claims, and hence s 91R(3) had no relevant operation. No error has been identified in this approach and none is apparent.

12 The appellant’s claim as to breach by the Tribunal of s 424A of the Act, by reliance upon the information, or lack of information contained in her protection visa application without first complying with the requirements of s 424(1) of the Act, was also not made out before his Honour.

13 Driver FM was satisfied that the appellant’s further amended application did not establish any jurisdictional errors purportedly claimed thereby, nor could any jurisdictional error be discerned from the Tribunal decision or other material placed before the Federal Magistrates Court.

The appeal to the Federal Court

14 On 19 October 2006, the appellant filed a notice of appeal in this Court, asserting in very unspecific terms that:

(i) the Tribunal was biased against her;
(ii) the Tribunal did not consider her application according to s 91R of the Act;
(iii) the Tribunal breached s 424A of the Act; and
(iv) the Federal Magistrate did not consider the details of the appellant’s argument.

15 Grounds (i)-(iii) above do not articulate any error in the judgment of Driver FM, and do not in any event contain any particulars of those purported grounds, which in substance merely restate the matters agitated before the learned Federal Magistrate. Ground (iv) above, complains that Driver FM did not appraise the details of the appellant’s arguments. Again however, no particulars of the complaint were provided in relevant support of that allegation. In any event, the reasons of Driver FM demonstrate a comprehensive examination of the appellant’s case, such as it was, and disclose no error in that regard.

16 The appellant appeared in person and repeated in outline her case based essentially upon or referrable to ss 91R and 424A of the Act, but understandably was unable to articulate any basis for those alleged statutory breaches on the part of the Tribunal, much less to attribute those complaints relevantly to her case placed before and resolved by Driver FM. I am persuaded that no jurisdictional error is revealed in the Tribunal’s reasons for decision or in the approach of and reasons for judgment of the learned Federal Magistrate.

17 In the result it became inevitable that her appeal was required to be dismissed by the Court with costs, which the Minister’s legal representative assessed, in my opinion reasonably, in the sum of $2,000.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 1 March 2007

Appellant appeared in person:
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Date of Hearing:	26 February 2007
Date of Judgment:	1 March 2007