SZJFU v Minister for Immigration & Citizenship [2007] FCA 707

FEDERAL COURT OF AUSTRALIA

SZJFU v Minister for Immigration & Citizenship [2007] FCA 707 SZJFU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 342 OF 2007

BENNETT J

9 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 342 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJFU

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J DATE OF ORDER: 9 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant is to pay the first respondent's 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 342 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJFU

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE: 9 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the dismissal of an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal (SZJFU v Minister for Immigration & Anor [2007] FMCA 127). The grounds of appeal assert that Emmett FM erred in not finding that the decision of the Tribunal was affected by jurisdictional error and thereby declined to 'interfere my case pursuant to s. 474 of the Act'. No particulars are given. 2 The appellant appears in person assisted by an interpreter. He relies on the same grounds of review as those raised before the Federal Magistrate. I will turn to consider those grounds. 3 The appellant claimed before the Tribunal to fear persecution by the Chinese Communist Government and other authorities of the People's Republic of China because he is a Falun Gong practitioner. He gave details to the Tribunal of instances of persecution that he said took place because he was practising Falun Gong. There is no need to examine the details of those claimed instances, because the Tribunal concluded that the appellant was not a witness of truth. It found that he was not a Falun Gong practitioner and that he had never practiced Falun Gong in China. It gave reasons for that conclusion, based upon the discussion it had with the appellant at the hearing about aspects of the practice of Falun Gong. 4 The appellant had relied upon the following grounds of review in the Federal Magistrates Court: · The Tribunal's conclusion was not based upon reasoning which provided a rational or logical foundation; · The Tribunal failed to consider his claims; · The Tribunal failed to carry out its statutory duty. 5 Federal Magistrate Emmett concluded that a fair reading of the Tribunal decision made it clear that the Tribunal considered the appellant's claims in detail, explored its concerns with the appellant and made findings in accordance with its statutory duty (at [30]). Her Honour concluded that the reasons provided by the Tribunal were both rational and logical. I agree and note that, in any event, mere illogical reasoning does not of itself constitute jurisdictional error (VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18]; Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 at [10] to [14]). I find no error in her Honour's conclusion in that regard. I agree with Emmett FM that the Tribunal did consider the appellant's claims in detail and explored those claims with him. The appellant has not pointed to any claim or any aspect of a claim with which the Tribunal did not deal. 6 Her Honour could find no basis upon which it could be said that the Tribunal failed to carry out its statutory duty. The appellant has pointed to none in this appeal. He did raise before me an assertion that the Tribunal did not ask him for more detail than he had given, but the Tribunal is not obliged to make out the case for the appellant. It is required to deal with the case raised by the material or evidence before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] citing Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114]). In any event, the Tribunal did not make its decision based upon a lack of evidence provided to it, but rather it heard the evidence given by the appellant and simply did not believe him. 7 Although it is not referred to in his notice of appeal, the appellant alleges bias on the part of the Tribunal, founded on an assertion that the Tribunal had made up its mind at the commencement of the hearing. This serious allegation is not supported by particulars or evidence; nor could the appellant point to any aspect of the Tribunal's reasons to support the allegation. The appellant has not made out the allegation of bias and it is rejected. 8 There is no basis upon which it could be said that there was jurisdictional error on the part of the Tribunal. The Tribunal's decision was based on adverse credibility findings which were founded on information provided to the Tribunal, by the appellant, at the hearing. For the sake of completeness, I note that the Tribunal was under no obligation to put that information in writing to the appellant pursuant to s 424A(1) of the Migration Act 1958 (Cth) ('the Act') as it is information excluded from the operation of that section by subs 424A(3)(b) of the Act. 9 It follows that the grounds of appeal have not been made out. The appeal must be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.