SZBWA v Minister for Immigration & Citizenship [2007] FCA 716

FEDERAL COURT OF AUSTRALIA

SZBWA v Minister for Immigration & Citizenship [2007] FCA 716 SZBWA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 334 OF 2007

MADGWICK J

9 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 334 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBWA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MADGWICK J DATE OF ORDER: 9 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant is to pay the first respondent's costs of the appeal fixed at $1900. 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 334 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBWA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MADGWICK J

DATE: 9 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR 1 This is an appeal from a decision of the Federal Magistrates Court given by Scarlett FM. His Honour dismissed an application for judicial review of a decision adverse to the appellant of the Refugee Review Tribunal ("the Tribunal"). The Tribunal's decision followed an earlier consideration of the matter by a differently-constituted Tribunal which was set aside by this Court. The appellant claimed to fear persecution in his native China as a Falun Gong adherent. The Tribunal comprehensively disbelieved the appellant and did not accept that, as he claimed, he had been pressured by the authorities. 2 The grounds for and submissions in support of the appellant's application before the Court below are somewhat unhelpful. His Honour could not find any failure by the Tribunal to carry out its statutory duty, nor any sign that the Tribunal had failed to consider all of the appellant's claims. His Honour dismissed the remaining complaint, namely "[t]he Tribunal failed to consider that in China people could be sent to jail even if he or she just explained that Falun Gong is good", as merely a complaint going to the merits of the Tribunal decision. 3 The Notice of Appeal repeats the assertion that the Tribunal failed to consider the whole of the appellant's case, and claims that the Tribunal "only based its findings on the information contained in the [appellant's] application for a protection visa", and "failed to consider the likely chance of being jailed if the [appellant] returns to China". 4 The appellant declined to make submissions, saying that he had said everything he wished to say in the Court below. 5 Like his Honour, I see no substance in the complaint that the Tribunal failed to consider the whole of the appellant's case. The claim that the Tribunal only based its findings on the information that he had provided is manifestly factually wrong and affords no basis for judicial review. 6 It is also, in my opinion, wrong to say that the Tribunal failed to consider the likely chance of the appellant being gaoled if he returned to China. The Tribunal considered that the appellant was at no risk of persecution of any kind if he returned to China. It is implicit in the Tribunal's decision that there might well be cases where genuine Falun Gong supporters are sent to gaol. The Tribunal simply did not accept that the appellant ever was or had been a Falun Dafa practitioner or that he was ever likely to do or say anything in support of Falun Dafa if returned to China. 7 There appears to be no sign of reviewable legal error in what has been done. The appeal will be dismissed with costs assessed in the sum of $1,900. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.