SZIOG v Minister for Immigration & Citizenship [2007] FCA 538

FEDERAL COURT OF AUSTRALIA

SZIOG v Minister for Immigration & Citizenship [2007] FCA 538 SZIOG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1945 OF 2006

BENNETT J

7 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1945 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIOG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J DATE OF ORDER: 7 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent is changed to the Minister for Immigration and Citizenship. 2. Leave to rely on grounds of appeal not raised before the Federal Magistrate is refused. 3. The appeal is dismissed. 4. The appellant is to pay the first respondent's costs. 5. Leave is granted to the first respondent to file evidence in support of an application for fixed costs by forwarding such evidence to Bennett J's chambers and serving such evidence on the appellant. 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 1945 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIOG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE: 7 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court to dismiss an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (SZIOG v Minister for Immigration & Anor [2006] FMCA 1450). The appellant claimed to have a well-founded fear of persecution in China by reason of her practice of Falun Gong. The Tribunal did not accept her claims. As recorded in the findings and reasons of the Tribunal, it questioned her in some detail about Falun Gong and the practice of it. It listed a number of instances of her response to questions and the information she gave to the Tribunal about Falun Gong. The Tribunal concluded that her responses individually would not have led it to make an adverse finding about her credibility. Cumulatively, however, the Tribunal said that they led it to conclude that the appellant was not a credible witness and that she had invented the claim that she was a Falun Gong practitioner in China. 2 By reason of that conclusion, the Tribunal did not accept that the appellant was a Falun Gong practitioner in China or that she had experienced problems in China as claimed. The Tribunal did accept that the appellant had practised Falun Gong in Australia. It was unable, however, to be satisfied that she had engaged in those activities other than for the sole purpose of strengthening her refugee claims. Accordingly, the Tribunal disregarded the appellant's conduct in Australia in accordance with s 91R(3) of the Migration Act 1958 (Cth) ('the Act'). 3 The appellant was represented by counsel in the Federal Magistrates Court and asserted in her application in that court that the assessment of credibility by the Tribunal was so "harsh" as to give rise to a finding of jurisdictional error. Federal Magistrate Smith considered the Tribunal's reasoning and was not satisfied that the Tribunal had failed to appreciate any relevant matters. In particular, his Honour was not satisfied the Tribunal had failed to appreciate the matters referred to by the Full Court in SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 or by Kirby J in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [73]. At [22], Smith FM stated: 'It was [the task of the Tribunal] to attempt to assess the credibility of [the appellant's] history in circumstances where she presented minimal corroboration. The Tribunal's finding is not a bald finding of credibility without reasons provided, and its reference to impressions formed from the manner and content of [the appellant's] answers was, in my opinion, open to the Tribunal.' 4 His Honour concluded that there was no irrationality in the Tribunal's reasoning to demonstrate that it failed to exercise its jurisdiction according to law (at [22]). His Honour concluded that he was not satisfied that the Tribunal's adverse conclusion as to credibility was not open to it on the evidence (at [23]) and dismissed the application.