SZMOG v Minister for Immigration & Citizenship [2009] FCA 156 (25 February 2009)

Last Updated: 2 March 2009

FEDERAL COURT OF AUSTRALIA

SZMOG v Minister for Immigration & Citizenship [2009] FCA 156

Migration Act 1958 (Cth)

SZMOG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1842 of 2008

MARSHALL J
25 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1842 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MARSHALL J
DATE OF ORDER:	25 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is 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.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1842 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MARSHALL J
DATE:	25 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, who is a citizen of the Peoples Republic of China, appeals from a judgment of the Federal Magistrates Court. A Federal Magistrate dismissed her application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse to grant a protection visa to the appellant.
2. The appellant applied for a protection visa, claiming that she feared persecution, if returned to China in the reasonably foreseeable future, by reason of her Christian religion.

The Tribunal

3. The appellant made the following claims before the Tribunal :-
   • she was taken into police custody when police broke up a religious gathering which she attended in June 2007.
   • she was released after two days in detention, after her sister paid a bribe.
   • she was harassed by police at the clothing shop which she managed.
   • she left China because she had no religious freedom
4. The Tribunal observed that shortly before coming to Australia, the appellant had travelled to New Zealand but made no claim for refugee status there.
5. The Tribunal also noted that the appellant said that she was not regarded as “prominent” by the authorities.
6. The Tribunal had reservations about the appellant’s credibility and raised those concerns with her. It was not convinced that police harassed her or targeted her for special attention. It accepted that she had some association with Christianity in China but through her family’s involvement with the official church.
7. The Tribunal was not convinced that the appellant was in genuine fear of persecution on account of her Christianity if returned to China. It said that the principal reasons which caused her to travel to Australia were unrelated to her Christianity.

The Court below

8. Before the Federal Magistrate, the appellant submitted that the Tribunal denied her procedural fairness and did not consider her evidence fairly. She complained of a failure to assess the risk of her return to China.
9. The Federal Magistrate assessed correctly that there was no substance to the claim that the Tribunal did not consider the appellant’s evidence fairly. The Tribunal carefully considered the appellant’s evidence and gave her an opportunity to respond to concerns about aspects of it.
10. The Federal Magistrate also determined correctly that there was no basis for the allegation that the Tribunal failed to assess the risk of the appellant’s return to China. That was the whole purpose of its inquiry. The result of its assessment was a finding that the appellant did not have a genuine fear of persecution on return to China on the ground of her Christianity.
11. The Court below noted that s 422B(1) of the Migration Act 1958 (Cth) (“the Act”) provides an exhaustive statement of the requirements of procedural fairness in the Tribunal. The appellant did not specify how she was denied procedural fairness or natural justice or how any aspect of Div 4 of Pt 7 of the Act was breached.

The Appeal

12. On appeal the appellant re-raised the issue of an alleged failure to consider the risk of her return to China. As demonstrated at [10] above, there is no substance in that ground.
13. The appellant raised two extra grounds of appeal which formed no part of her application below. I refuse leave for them to be raised now as it would be futile to do so. The first new ground was one of bias in the Tribunal. No basis has been advanced by the appellant for that serious allegation. The second new ground complained about the Federal Magistrate not accepting new evidence. It was not his function to accept new evidence but to determine whether the Tribunal made a jurisdictional error.
14. The appeal is without merit and is dismissed with costs.
    

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

Associate:

Dated: 26 February 2009

The appellant appeared for herself.

Counsel for the Respondents:	Mr P Reynolds
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	25 February 2009
Date of Judgment:	25 February 2009