SZJEU v Minister for Immigration & Citizenship [2007] FCA 1239

FEDERAL COURT OF AUSTRALIA

SZJEU v Minister for Immigration & Citizenship [2007] FCA 1239

SZJEU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 688 OF 2007

BENNETT J

31 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY NSD 688 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJEU

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE: BENNETT J

DATE OF ORDER: 31 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal is joined as the second respondent. 2. The appeal is dismissed. 3. The appellant is to pay the first respondent's costs in the sum of $2,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY NSD 688 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJEU

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE: 31 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China ('China'). He arrived in Australia on 27 July 2005 and lodged an application for a protection visa on 8 August 2005. In a statement accompanying his protection visa application ('the statement'), the appellant claimed that he was a Christian and could not enjoy freedom of religion in China. He also claimed in the statement that he had been detained by Chinese authorities and that during the detention he was tortured for information about his church and its relationship with overseas churches. When the matter came before the Refugee Review Tribunal, the appellant resiled from the claims that he had made in the statement. He gave to the Tribunal in his oral evidence what the Tribunal accepted was a truthful account of his experiences in China and his concerns for the future. 2 The Tribunal remarked that the appellant gave his oral evidence in a very frank and open manner. The Tribunal accepted that the appellant's father was a Christian and that fellow Christians gathered at the family home. The Tribunal considered the appellant's evidence and independent evidence as to the treatment by the authorities of Christians in Guangdong Province, where he lived. The Tribunal concluded that the appellant did not have a well-founded fear of Convention related persecution when he left China for Australia. The Tribunal observed that the appellant had said that he wished to work in Australia, save some money and return home. The appellant told the Tribunal that he did not fear being persecuted in China and the Tribunal accepted that the appellant did not have a subjective fear of persecution in that country. 3 In the Federal Magistrates Court the appellant asserted, as his grounds of review ('the first ground'), that the Tribunal had failed to carry out its statutory duty under s 424A of the Migration Act 1958 (Cth) ('the Act') and that the Tribunal decision was not based on rational and logical grounds ('the second ground'). 4 As to the first ground, the appellant was unable to identify any information within s 424A(1) of the Act (SZJEU v Minister for Immigration & Anor [2007] FMCA 491 at [16]). Federal Magistrate Emmett observed that the Tribunal's finding was based upon the evidence of the appellant at the hearing and her Honour was unable to find any basis for a failure on the part of the Tribunal to comply with its obligations under s 424A. 5 The second ground was not supported by particulars. Her Honour observed at [18] that there was nothing on the face of the decision to suggest that the Tribunal was not based on rational and logical grounds. Her Honour found that there was no jurisdictional error in the Tribunal's decision, including the conduct of its review (at [19]). 6 In the notice of appeal to this Court, the appellant raises three grounds: 1. A failure to consider his application according to s 424A of the Act. He says he was not notified of the reason or part of the Tribunal's reasons for affirming the decision under review. 2. The Tribunal relied upon irrelevant materials. 3. The Tribunal did not believe "my claims based on assumption". 7 In his affidavit in support of the appeal, the appellant provided further details. The appellant says that the Tribunal relied upon information in his application for a protection visa and that particulars were not provided in writing. Further, he said that the Tribunal relied upon irrelevant materials, being country information said to be out of date and/or based on hearsay. 8 The Minister observes that the reference to country information was not a ground raised before the Federal Magistrate and that the appellant would require leave to raise this argument for the first time on appeal. The Minister does not, however, oppose the grant of leave.