SZMIJ v Minister for Immigration & Citizenship [2009] FCA 124 (23 February 2009)

Last Updated: 24 February 2009

FEDERAL COURT OF AUSTRALIA

SZMIJ v Minister for Immigration & Citizenship [2009] FCA 124

SZMIJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1673 of 2008

EDMONDS J
23 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1673 of 2008

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

JUDGE:	EDMONDS J
DATE OF ORDER:	10 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the first respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1673 of 2008

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

JUDGE:	EDMONDS J
DATE:	23 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This was an application for leave to appeal from the Federal Magistrates Court of Australia (Driver FM) (SZMIJ v Minister for Immigration & Citizenship & Anor [2008] FMCA 1138) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001, on the ground that it did not raise an arguable case for the relief claimed. Rule 44.12(2) provides that such a dismissal is interlocutory; hence the need for leave.
2. On 10 February 2009 I refused to grant leave with my reasons for such refusal to follow.

BACKGROUND

3. The applicant is a female citizen of the People’s Republic of China, who arrived in Australia on 24 August 2007 as the holder of a visitor visa. She applied for a protection visa on 28 September 2007. The application was refused by a delegate of the first respondent (‘the Minister’) on 21 December 2007.
4. On 29 January 2008, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant attended a hearing before the Tribunal on 1 April 2008. The Tribunal affirmed the delegate’s decision.

THE DECISION OF THE TRIBUNAL

5. The applicant claimed that she feared persecution from Chinese authorities because of her involvement in the underground Catholic Church. She claimed that members of the underground church had come to her cafe, and she was accused of holding secret gatherings. She claimed she was detained and mistreated for over a week, and was repeatedly interrogated afterwards. She claimed she assisted key members of the church, and fled from China when she was told that the police planned to arrest her.
6. The Tribunal found that the applicant was not a credible witness and that she had provided inconsistent evidence. This included:
   • (1) Evidence in her tourist visa application that was inconsistent with her protection visa application, in relation to the applicant’s employment.
   • (2) Inconsistent information relating to her daughter’s student visa.
   • (3) Inconsistent explanations as to why her evidence was inconsistent.
   • (4) Inconsistent accounts of her financial situation.
7. The Tribunal accepted evidence on Department files that verified the claimed employment on the tourist visa application. As a result of its credibility findings, the Tribunal rejected all of the applicant’s claims that she was, and would be, subject to adverse attention from the Chinese authorities. This included a rejection of the claimed instances of persecution and a rejection of the claim to have assisted members of the underground church.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATES COURT

8. The applicant applied to the Federal Magistrates Court on 28 May 2008, seeking review of the Tribunal’s decision. While each ground in the application for review was expressed as a claim that the Tribunal failed to consider a particular aspect of her case, his Honour found, correctly in my view, that the ‘grounds are substantially an attack on the merits of the Tribunal decision’ (at [7]).
9. His Honour noted references to the Tribunal failing to act impartially which he took to be an allegation of bias, but found (at [7]) that there was nothing in the Tribunal decision to indicate bias.
10. His Honour concluded that the applicant had not established that she had an arguable case, and so dismissed the application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules.

APPLICATION BEFORE THIS COURT

11. The application for leave to appeal included a draft notice of appeal and an affidavit filed on 23 October 2008. The affidavit reproduced the grounds and particulars in the draft notice of appeal. The grounds alleged are that the Federal Magistrates Court erred in law and that it was wrong in finding that the Tribunal acted properly in its findings. The particulars reproduced the grounds that were before the Federal Magistrates Court.
12. The applicant did not file or furnish any written submissions and on the hearing of the application made no relevant oral submissions.

CONCLUSION

13. I refused the application for leave because:
    • (1) I was satisfied that the decision below was not attended with sufficient doubt to warrant it being reconsidered by this Court; and
    • (2) even if his Honour was incorrect to dismiss the application for review under Rule 44.12(1)(a), having regard to the applicant’s proposed grounds of appeal, her chances of succeeding were, in reality, non-existent; no substantial injustice would result by the refusal of leave to appeal.
14. The applicant must pay the Minister’s costs of her application.
    

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 23 February 2009

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	10 February 2009
Date of Judgment:	23 February 2009