SZLMA v Minister for Immigration & Citizenship [2008] FCA 69 (14 February 2008)

Last Updated: 14 February 2008

FEDERAL COURT OF AUSTRALIA

SZLMA v Minister for Immigration & Citizenship [2008] FCA 69

SZLMA v Minister for Immigration & Anor [2007] FMCA 2048


























SZLMA v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 2550 OF 2007

BUCHANAN J
14 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2550 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLMA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	14 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

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 2550 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLMA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	BUCHANAN J
DATE:	14 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 The appellant in this matter is in immigration detention. In accordance with the practice of this Court the hearing of his appeal has been expedited. As will be explained, it must be dismissed.

2 The appellant is a citizen of the Peoples Republic of China who arrived in Australia on 8 April 2007. On 30 April 2007 he lodged an application for a protection visa. The application was refused by a delegate of the Minister on 24 May 2007. He applied to the Refugee Review Tribunal (‘the RRT’) for a review of that decision.

3 Before the RRT the appellant had the advice and assistance of a migration agent. He attended hearings before the RRT on 19 July 2007 and 23 August 2007 and gave oral evidence on each occasion. In addition his advisor made written submissions on his behalf on 31 July 2007. Those written submissions were made in response to a letter sent by the RRT to the applicant dated 24 July 2007 after the first hearing. They notified the appellant of specific concerns about aspects of his evidence and that the veracity of his claims and his credibility were in issue. In a decision dated 6 September 2007 the RRT affirmed the decision of the delegate to refuse a protection visa to the appellant.

4 As Emmett FM subsequently recorded:

‘Ultimately, the Tribunal rejected comprehensively all claims made by the applicant to have been a Christian in China; to have ever been a member of an underground church in China; that the applicant was ever baptised in China; that the applicant was ever involved in any activities in China relating to the underground church; or, that the applicant was ever of any adverse interest to the Chinese authorities. The Tribunal rejected all attenuated and expanded claims made by the applicant, including new claims made at the hearing.’

5 The appellant then applied for judicial review of the decision of the RRT to the Federal Magistrates Court of Australia (‘the FMCA’). On 5 December 2007 the application for judicial review was dismissed (SZLMA v Minister for Immigration & Anor [2007] FMCA 2048). Two grounds were advanced to the FMCA. They were:

‘1 That the Second Respondent i.e. Refugee Review Tribunal refused to take into account that the Applicant was a real risk of persecution if returned to China, owing to belonging to a "underground church" furthermore the Tribunal failed to find that the evidence was not genuine.

2. I was not given any further opportunity to gather more sufficient or genuine evidence as the Tribunal stated in support of my protection visa application.’

6 As Emmett FM, with respect, correctly found the first ground invited a merit review and was bound to be rejected. Ground 2 was not supported by any particulars or any evidence. It was rejected by Emmett FM, in any event, having regard to the way in which the proceedings before the RRT were conducted. Emmett FM said:

‘A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant; had regard to all material provided in support, and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.’

7 The present appeal challenges the decision of the FMCA. There are two grounds of appeal in this Court. They are:

‘2. The Honourable Magistrate failed to find error of Law Jurisdictional error and procedural fairness under section of the judiciary ACT 1903.

3. The Honourable Magistrate did not take into access that the visa applicant have "well-founded" fear of prosecution involves serious Harm and systematic and discriminatory conduct of the R.C.’

8 The appellant did not file any written submissions in support of his appeal. When he was invited to make a submission at the hearing of the appeal he, at first, said only that the RRT did not believe him and advanced no other argument. After I had taken short oral submissions from counsel for the Minister, which supplemented the written submissions already filed, the appellant said, in answer to my further invitation to him to make any submission he wished, that although he had provided all his evidence to the RRT he was not believed. He then suggested he had not been given enough time to prepare for the appeal and asked for more time to obtain further material. He identified that material as letters from a church which would need to be obtained from China. Material of this kind could not, in my view, bear upon the matters which arose for decision in connection with the appeal. Accordingly, I ruled that I would not adjourn the appeal.

9 The first ground of appeal amounts to no more than a complaint that the appellant failed before the FMCA. It provides no basis upon which the appeal could be upheld. The second ground is without any substance. Not only was the FMCA not obliged to deal with matters and arguments which were not advanced to it, the contention disregards the fact that the appellant’s factual assertions were not accepted by the RRT. The delegate’s decision was affirmed because the RRT regarded the application before it as having no merit. These are matters which are not within the province of the FMCA or this Court to review.

10 No basis has been shown, or appears from the material before the Court, upon which I could find error in the decision of the FMCA or jurisdictional error in the decision of, or proceedings before, the RRT.

11 The appeal must be dismissed. It is appropriate to dismiss it with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 14 February 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	C. Mantziaris
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 February 2008
Date of Judgment:	14 February 2008