SZJXK v Minister for Immigration and Citizenship [2008] FCA 679 (7 May 2008)

Last Updated: 16 May 2008

FEDERAL COURT OF AUSTRALIA

SZJXK v Minister for Immigration and Citizenship [2008] FCA 679

SZJXK v MINISTER FOR IMMIGRATION AND CITIZENSHIP
and REFUGEE REVIEW TRIBUNAL

NSD 2483 OF 2007

LINDGREN J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2483 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJXK 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.

3. The costs referred to in order 2 be fixed in a sum of $1400.














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 2483 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJXK 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 against a judgment of the Federal Magistrates Court of Australia. On 29 November 2007 that Court dismissed the appellant’s application for judicial review of a decision of a delegate of the first respondent (respectively, the Delegate and the Minister). The Tribunal had affirmed the Delegate’s decision to refuse to grant a protection visa to the appellant.

2 The appellant is a citizen of The People’s Republic of China. Before the Tribunal the appellant claimed to have a well-founded fear of persecution due to his practice of Falun Gong. He claimed to have commenced practising Falun Gong around 2002/2003. He claimed that he had become engaged in a land dispute with the relative of a Communist Party cadre who had informed the authorities of his adherence to Falun Gong. He claimed that he was subsequently arrested and beaten and verbally abused and periodically taken into custody over a period of one year as a result of his Falun Gong "membership".

3 The appellant arrived in Australia on 27 January 2006, and lodged his application for the visa on 24 February 2006. He claimed that he feared returning to China because he would be gaoled and because the Chinese government would do "malicious things" to him.

4 The Delegate was not satisfied that the appellant was a genuine Falun Gong practitioner.

5 At the hearing before the Tribunal, the presiding member questioned the appellant about his claimed Falun Gong adherence and beliefs. He responded that he practised only a little. He claimed that his real fears arose from the dispute on the building site and that the person with whom he was in dispute had reported to the authorities that he was a Falun Gong practitioner. The Tribunal member thought this unlikely.

6 The Tribunal considered that the appellant’s lack of knowledge of key precepts of Falun Gong and absence of practice signified that he had a very limited association with the group.

7 The Tribunal noted that the appellant had been issued with a passport after the alleged conduct complained of, and thought that this suggested that there was no official knowledge of his alleged Falun Gong association. He had been able to leave China without difficulty.

8 The Tribunal considered that doubt was cast on the credibility of the appellant by the circumstances to which I have referred. It noted that the appellant’s claim of official persecution was poorly substantiated.

9 The Federal Magistrate dealt with the various grounds raised in the appellant’s application. Before his Honour the appellant claimed that:

• he was unable to understand the letter from the Tribunal allowing him to tender new information;

• he held no necessary Chinese identification documentation;

• he was forced to leave China; and

• the Tribunal’s decision was void.

10 The Federal Magistrate thought that the Tribunal’s decision was not affected by jurisdictional error. In general terms, the Federal Magistrate considered that the appellant was seeking to agitate aspects of his claims that had been dealt with on their merits by the Tribunal.

11 The notice of appeal to this Court relies on the following grounds of appeal:

1. The appellant contended Driver FM erred in his decision that "the Tribunal met its statutory obligations to invite the applicant to a hearing. There is no arguable case of jurisdictional error."

2. The appellant contended in the Federal Court that RRT fell into jurisdictional error. Driver FM erred in his decision.

3. Fail to give the applicant an opportunity to comment on a matter, ignored other relevant material that was before it.

The appellant, who has appeared unrepresented before me, has not elaborated orally on these grounds.

12 In her submissions, the solicitor for the Minister points out that the first two grounds bear no relationship to the decision of the Federal Magistrates Court. Those grounds incorrectly refer to "Driver FM," but it was Lloyd Jones FM who heard the appellant’s application in the Federal Magistrates Court. The submissions also point out that the material quoted in the first ground of appeal do not appear anywhere in the reasons of the Federal Magistrate in this case.

13 It seems plain that the appellant has copied the grounds of appeal from some other notice of appeal.

14 In relation to the third ground of appeal, the allegation appears to be one of failure to accord procedural fairness. That ground was not raised before the Federal Magistrate and leave would be required for it to be raised now, in this appeal. I would not grant leave because there is no substance in the ground on the evidence before this Court. There is no transcript of the proceedings before the Tribunal in evidence before this Court, which would allow the Court to determine whether the appellant was given an opportunity to comment on any particular matter. The ground of appeal does not, itself, identify any such matter.

15 The Tribunal’s decision was based on the Tribunal’s assessment of the appellant’s credibility. The Tribunal explained why it did not accept the appellant’s claims. There is no substance in the third ground of appeal.

16 For the above reasons, the appeal should be dismissed with costs.

I certify that the preceding sixteen (16) 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.
Solicitor for the First Respondent:	Ms D Watson of the Australian Government Solicitor

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