SZHRS v Minister for Immigration and Citizenship [2008] FCA 109 (19 February 2008)

Last Updated: 27 February 2008

FEDERAL COURT OF AUSTRALIA

SZHRS v Minister for Immigration and Citizenship [2008] FCA 109

SZHRS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1359 OF 2007

STONE J
19 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1359 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHRS Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	19 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

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 1359 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHRS Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	STONE J
DATE:	19 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 21 October 2005, the Refugee Review Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellant a protection visa. That decision was, by consent, quashed in the Federal Magistrates Court and the matter was remitted to a second, differently constituted, Tribunal.  The second Tribunal also dismissed the appellant’s application. The application for judicial review of the second Tribunal’s decision was dismissed by the Federal Magistrate; [2007] FMCA 950.

2 Before the second Tribunal, the appellant recanted her claims to be a Falun Gong practitioner and stated that she had not suffered any persecution in China and did not fear returning to China. Before the Federal Magistrate the appellant claimed she had been ill when she appeared before the Tribunal and that the answers she gave were not clear and were vague. She did not claim that the account she gave the Tribunal was incorrect and there was no evidence before her Honour to support that claim and no reference to the appellant being ill in the Tribunal’s record of decision.

3 The Federal Magistrate stated at [33]:

In accepting the Applicant’s evidence before it, the Tribunal found that the Applicant did not have a subjective fear of persecution for a Convention related reason, were she to return to China. Based on that finding, the Tribunal was not satisfied that the Applicant met the statutory criteria set out in s.36(2) of the Act required for a protection visa. In those circumstances, pursuant to s.65(1)(b) of the Act, the Tribunal was bound to refuse to grant the Applicant a protection visa.

4 On 1 November 2007, Finkelstein J granted the appellant an extension of time to appeal from the judgment of the Federal Magistrate. According to the written submissions of the first respondent:

The Court was reluctant to dismiss the matter immediately without seeing transcripts of the RRT and FMC hearings, noting that it was unusual that the appellant would completely resile from her claims as stated in the RRT decision, and would make claims of illness at the FMC which were not mentioned in the RRT decision.

5 At the hearing of the appeal before me the appellant effectively made no submissions. She merely commented that "they wouldn’t believe me" but would not elaborate. She declined to take any further part in the hearing of the appeal.

6 The transcripts of the hearings before the Tribunal and the Federal Magistrates Court were included in the appeal book. The transcript of the Tribunal hearing makes it quite clear that the Tribunal’s account of the appellant’s evidence before it was accurate and that she did not complain of being unwell. Her Honour was correct in upholding the Tribunal’s decision for the reasons she gave. For those same reasons, the appeal is dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:
Dated: 19 February 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008