SZGZC v Minister for Immigration and Citizenship [2008] FCA 669 (7 May 2008)

Last Updated: 16 May 2008

FEDERAL COURT OF AUSTRALIA

SZGZC v Minister for Immigration and Citizenship [2008] FCA 669

SZGZC v MINISTER FOR IMMIGRATION AND CITIZENSHIP
and REFUGEE REVIEW TRIBUNAL

NSD 2482 OF 2007

LINDGREN J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2482 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGZC Appellant

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

JUDGE:	LINDGREN J
DATE OF ORDER:	7 MAY 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 2482 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGZC Appellant

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

JUDGE:	LINDGREN J
DATE:	7 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from a judgment of a Federal Magistrate given on 5 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The statement of the Tribunal’s decision and reasons was signed on 28 December 2006 and handed down on 18 January 2007. The Tribunal affirmed a decision of a delegate of the first respondent (respectively, the Delegate and the Minister) not to grant the appellant a protection (class XA) visa.

2 The Tribunal has filed a submitting appearance.

3 The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 1 February 2005. On 4 February 2005, he lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs. On 5 March 2005, the Delegate refused to grant the visa.

4 On 30 March 2005, the appellant lodged an application for a review of that decision with the Tribunal. On 20 June 2005, the appellant attended a hearing before the Tribunal. On 22 June 2005, the Tribunal affirmed the Delegate’s decision. The appellant sought judicial review of that decision of the Tribunal. By consent, on 29 September 2006 an order was made by the Federal Magistrates Court of Australia remitting the matter to the Tribunal.

5 The Tribunal, differently constituted, conducted another hearing on 6 December 2006 at which the appellant gave evidence. It was following that hearing that the Tribunal gave the decision in question.

6 Briefly, the appellant claimed to have a well-founded fear of persecution due to his practice of Falun Gong since 1999 when he was introduced to Falun Gong by a neighbour as a practice that would assist the appellant’s health. He claimed that in 2000 he went to the house of a fellow practitioner and was arrested by the police. He claimed to have been physically abused and to have been released only because his mother had used "a connection" to save him. He claimed to have been then dismissed from his employment. The appellant claimed to have met other Falun Gong members in Australia.

7 The Tribunal was not satisfied that the appellant was "a witness of truth". It thought that he "was prepared to embellish (if not entirely fabricate) his evidence for the sole purpose of enhancing his claim[s]." In support of its credibility finding, the Tribunal found that the appellant had fabricated his claims of having been detained by the police in China and that he had also fabricated a claim that he practised Falun Gong in Australia at home every day.

8 In the Federal Magistrates Court, the appellant raised the following grounds of review:

(1) The Tribunal failed to consider the whole of my matter.

(2) It is not reasonable to deny that I was ever detained in 2000 for my alleged practice of Falun Gong.

(3) The Tribunal made the finding which is illogical.

9 The learned Federal Magistrate addressed these three grounds of review and did not find them supported, giving reasons for that view. His Honour found that no jurisdictional error by the Tribunal had been made out and dismissed the application for judicial review with costs.

10 In his notice of appeal to this Court, the appellant sets out the following grounds of appeal:

(1) It is not reasonable for the Refugee Review Tribunal to deny that I was ever detained in 2000 for my alleged practices of Falun Gong.

(2) There was no other evidence to justify the making of the decision. (3) The Tribunal failed to consider the whole of my claims for a protection visa.

11 It will be seen that the first ground of appeal is the same as the second ground of review that was considered by the Federal Magistrate, and that the third ground of appeal is in substance the same as the first ground of review that was considered by the Federal Magistrate.

12 I accept the submissions of counsel for the Minister that the appellant has not established that the Tribunal committed jurisdictional error in respect of either of the two grounds just mentioned. The first ground is simply a challenge to the merits of a factual finding made by the Tribunal. There is no substance in the third ground of appeal because the Tribunal did consider thoroughly the claims made by the appellant. The appellant has not identified any particular claim that the Tribunal failed to consider.

13 In relation to the second ground of appeal, I note that this ground was not relied on in the Federal Magistrates Court and that the appellant needs the leave of this Court in order to rely upon it: see, for example, NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51. On the hearing this morning, the appellant, when given the opportunity, has not sought to elaborate on any of his grounds of appeal and therefore has not sought to explain the second ground of appeal. The Tribunal had evidence before it to which it referred in support of its conclusion that the appellant was not to be believed. For this reason, if the appellant had sought leave to raise the second ground of appeal, I would have refused that leave.

14 In the above reasons I have referred to the reasons of the Tribunal and note in passing that the appellant has not referred in his grounds of appeal to the reasons of the learned Federal Magistrate. The appellant has not established any error in the reasons of the Federal Magistrates Court or any jurisdictional error affecting the decision of the Tribunal.

15 For the above reasons the appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 7 May 2008

The Appellant appeared in person.
Counsel for the First Respondent:	Mr M P Cleary
Solicitors for the Respondents:	Clayton Utz Lawyers

Date of Hearing:	7 May 2008
Date of Judgment:	7 May 2008