SZLDQ v Minister for Immigration and Citizenship [2008] FCA 289 (5 March 2008)

Last Updated: 10 March 2008

FEDERAL COURT OF AUSTRALIA

SZLDQ v Minister for Immigration and Citizenship [2008] FCA 289

SZLDQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2357 OF 2007

LOGAN J
5 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2357 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	LOGAN J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The Appellant is to pay the First Respondent’s costs of, and incidental to, the appeal to be taxed, if not agreed.









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	NSD2357 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	LOGAN J
DATE:	5 MARCH 2008
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 The Appellant is a citizen of the People’s Republic of China. He arrived in Australia on 7 January 2007. Later that month he applied for a protection visa. The essence of that visa application was a claim for refugee status, based on his membership of a particular group who practised Falun Gong. He claimed to have been detained by police in China because of membership of that group.

2 The following month that visa application was refused by a delegate of the Minister. As was his right, the Appellant sought the review of the decision of the Minister’s delegate by the Refugee Review Tribunal ("Tribunal"). That Tribunal has been established by the Australian Parliament to provide an independent review of the merits of a visa application, where a protection visa is sought. It is the role of that Tribunal, rather than the courts, in this type of case to make decisions about the merits of the facts put forward in a claim for a protection visa.

3 After conducting a hearing in June 2007, the Tribunal decided on 3 July 2007 to uphold the Minister’s decision. Regard to the Tribunal’s reasons for decision discloses that the Tribunal’s decision was very much based on an assessment of the Appellant’s credibility. In particular, the Tribunal’s reasons disclose findings of inconsistency in relation to the Appellant’s claimed practice of Falun Gong and also a finding of mere ignorance of Falun Gong exercises, basic principles and philosophy.

4 The Tribunal’s reasons also disclose a finding that the Appellant’s evidence in relation to his work dismissal and arrest was vague, implausible and lacking in credibility. In making that finding the Tribunal has referred in its reasons to changes in the evidence that he gave on these subjects.

5 As was his right, the Appellant sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court. The Federal Magistrate at paragraph 19 of the Magistrate’s reasons observed the following and I quote omitting reference which the Magistrate made to authority:

"Credibility is a finding of fact. Indeed as counsel for the Minister has pointed out the finding of credibility is the finding of fact par excellence. The tribunal’s findings were open to it on the evidence before it and the court cannot review the merits of the tribunal decision."

6 I note further that the Federal Magistrate, before whom, as before me, the Appellant was not legally represented, went beyond the formal ground of challenge to the Tribunal’s decision, which seems to have been a challenge on the basis of reasonableness, and looked at the Tribunal’s decision to see whether there was any other form of jurisdictional error. The Magistrate’s reasons record that the Magistrate was satisfied that there was no jurisdictional error, whether claimed by the Appellant or not. That was certainly a very humane course to take even if, with respect, it went beyond the formal basis upon which the Magistrates Court’s jurisdiction had been invoked.

7 The notice of appeal identifies three grounds:

(1) It is not reasonable for the tribunal not to accept that I was dismissed from my work unit and was detained by the Chinese authority.

(2) The decision involved an important exercise of power conferred by the Migration Act and regulations.

(3) The tribunal failed to consider the whole of my claims.

8 The second of those grounds is not a ground of appeal at all, although there is no doubt that the Tribunal was exercising a power that is important both to the Appellant as well as to the Australian community.

9 For the Minister, it is in essence submitted that the Federal Magistrate was not in error in concluding that the Tribunal had made findings of credibility or believability which were reasonably open to the Tribunal.

10 The Appellant on the other hand, having had the Minister’s oral and written submissions translated to him before being called on to make submissions in respect of his grounds of appeal, confined his submission to an adamant statement that he is indeed a Falun Gong practitioner. The difficulty about that submission is that it is not for this Court, on appeal, as it was not for the Federal Magistrate, to decide whether or not the Court believes him, that was the role of the Tribunal.

11 It seems to me that there was no error in the Federal Magistrate concluding that the Tribunal had made findings of fact, based on an assessment of credibility, that were reasonably open. Further, having read the Tribunal’s reasons, my own view is that the Tribunal did consider the whole of the Appellant’s claims. The basis upon which the Appellant sought a protection visa is considered and dealt with at length on its merits in the Tribunal’s reasons.

12 While the outcome before the Tribunal was not one which is to the Appellant’s liking, I, like the Magistrate, cannot conclude that the Tribunal made a decision which was not reasonably open to it to make. Under the system of law in Australia, applicable to this type of case, the courts must exercise a principled restraint in the judicial review of an administrative decision. While it is open to set aside a Tribunal decision on the basis of error of law, it is quite inappropriate for a court to embark upon its own assessment of the merits, and I expressly refrain from doing that, as did the Federal Magistrate.

13

It follows from what I have said, that the appeal must be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 6 March 2008

Counsel for the Applicant:	The Appellant appeared in person.
Counsel for the Respondent:	Mr D Goodwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 2008
Date of Judgment:	5 March 2008