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Federal Court of Australia |
Last Updated: 27 May 2008
FEDERAL COURT OF AUSTRALIA
SZLNY v Minister for Immigration and Citizenship [2008] FCA 769
SZLNY
v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW
TRIBUNAL
NSD 414 OF 2008
COWDROY J
26 MAY
2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
2. The Appellant pay the costs of the First Respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZLNY
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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COWDROY J
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DATE:
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26 MAY 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 The appellant appeals from the decision of Federal Magistrate Scarlett delivered on 10 March 2008 which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 25 September 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the protection visa’).
BACKGROUND
2 The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 25 April 2007. On 27 April 2007 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused such application on 23 May 2007. On 22 June 2007 the appellant applied to the Tribunal for a review of the delegate’s decision.
3 The appellant claimed to have well-founded fear of persecution resulting from her practice of Falun Gong. The appellant claimed that she had been arrested and detained for six months by authorities in the PRC because of her practice of Falun Gong. The appellant claimed that she ‘suffered from ill treatment’ during her period of detention. The appellant claimed that following her release she feared that she would be jailed again. The appellant claimed that she bribed a government official to obtain a passport.
4 Before the Tribunal the appellant claimed that she rarely practised Falun Gong in Australia because of work pressures.
THE TRIBUNAL DECISION
5 The Tribunal was not satisfied that the appellant had been a Falun Gong practitioner in the PRC or in Australia. It found the appellant’s oral evidence concerning her involvement with Falun Gong was ‘vague, confused and variable’ and did not reflect a personal or authentic knowledge of Falun Gong.
6 The Tribunal was not satisfied that if the appellant had been a genuine Falun Gong practitioner in the PRC and had fled the PRC because of that practice, the appellant would be prevented from practising Falun Gong in Australia because of work pressures.
7 As the Tribunal was not satisfied that the appellant was a Falun Gong practitioner the Tribunal was not satisfied that there was a real chance that she would suffer serious harm amounting to persecution in the PRC resulting from her practice of Falun Gong.
8 The Tribunal was not satisfied that the appellant had well-founded fear of persecution for any Convention Relating to the Status of Refugees 1951 reason. The Tribunal affirmed the delegate’s decision to refuse to grant the protection visa to the appellant.
APPLICATION IN THE FEDERAL MAGISTRATES COURT
9 By application filed in the Federal Magistrates Court of Australia on 26 October 2007 the appellant sought judicial review of the Tribunal’s decision. The application raised three grounds of appeal as follows:
1. The Refugee Review Tribunal made several judicial [sic] errors in making of the decision to refuse the applicant’s application for a protection visa.
2. The Refugee Review Tribunal did not carefully consider the real situation in China in relation to Falun Gong practitioners.
3. The Refugee Review Tribunal did not adequately consider the pressures of work in Australia which the applicant must face.
10 Federal Magistrate Scarlett considered the first ground of review and noted that an adverse decision itself does not establish jurisdictional error. His Honour found that the first ground attempted to cavil with the merits of the Tribunal’s decision and accordingly dismissed such ground.
11 In considering the appellant’s second ground of review the Federal Magistrate found that such ground appeared to seek an impermissible merits review of the Tribunal’s decision. His Honour nevertheless found that while the Tribunal had considered independent country information relating to the treatment of Falun Gong practitioners in the PRC, the Tribunal’s rejection of the appellant’s claims was based on its adverse finding relating to her credibility.
12 Scarlett FM found that the appellant’s third ground of review sought to challenge the factual findings of the Tribunal. His Honour accordingly rejected such ground of review.
APPEAL TO THIS COURT
13 On 26 March 2008 the appellant filed a notice of appeal in this Court which raised three grounds of appeal as follows:
1. The Tribunal failed to carry out its statutory duty.
2. The Refugee Review Tribunal made several judicial [sic] errors in making of the decision to refuse the applicant’s application for a protection visa.
3. The Refugee Review Tribunal did not adequately consider the pressures of work in Australia which the applicant must face.
FINDINGS
14 The first ground of appeal claims that the Tribunal failed to carry out its statutory duty. This ground was not raised before the Federal Magistrate. Accordingly, leave is required to raise such issue: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]- [24]. In deciding whether leave should be granted, the relevant principle to be applied by the Court is whether it is expedient and in the interests of justice to allow the ground to be argued: see Iyer at [16]. Such consideration requires the Court to consider the merits of the ground raised: see Iyer at [24].
15 In the absence of any particulars, the Court is satisfied that the ground has no reasonable prospects of success. The Court accordingly refuses to grant leave to the appellant to raise the first ground of appeal.
16 Ground two asserts that the Tribunal made errors in the making of its decision. No particulars are provided of the alleged errors. The appellant, by virtue of this ground, seeks to challenge the factual findings of the Tribunal. The Court has no jurisdiction to entertain a review of the Tribunal’s factual findings: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392 per Mason CJ; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 40-42. Accordingly, ground two of the notice of appeal is rejected.
17 The third ground of appeal alleges that the Tribunal ‘did not adequately consider the pressures of work in Australia which the applicant must face’. Again, no particulars of this ground have been provided. Such ground was raised before the Federal Magistrate and the Court can find no error in his Honour’s findings. Accordingly, this ground must also be rejected.
18 No jurisdictional error is apparent in the decision of either the
Tribunal or of Scarlett FM. It follows that the appeal must
be dismissed with
costs.
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Solicitor for the First Respondent:
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Mr Cox
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/769.html