SZKMI v Minister for Immigration and Citizenship [2007] FCA 1657

FEDERAL COURT OF AUSTRALIA

SZKMI v Minister for Immigration and Citizenship [2007] FCA 1657

SZKMI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1690 OF 2007

ALLSOP J

30 OCTOBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1690 OF 2007

BETWEEN: SZKMI

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: ALLSOP J

DATE OF ORDER: 30 OCTOBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time to file and serve a notice of appeal be dismissed. 2. The applicant pay the first respondent's costs of the application 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 1690 OF 2007

BETWEEN: SZKMI

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: ALLSOP J

DATE: 30 OCTOBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time to file and serve a notice of appeal against orders made by the Federal Magistrates Court on 17 July 2007, in which the Federal Magistrate dismissed the application for judicial review in respect of a decision of the Refugee Review Tribunal (the "Tribunal") dated 20 February 2007, handed down on 13 March 2007. In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa. 2 The applicant had lodged an application for a protection visa with the Department on 28 August 2006. She made claims for protection under the Refugee Convention, by reason of an asserted adherence to Falun Gong. A delegate of the Minister refused the application on 10 November 2006. On 11 December 2006, the applicant applied to the Tribunal for a review of that decision. It is that review application which resulted in the decision of the Tribunal affirming the decision of the delegate. 3 The applicant is a citizen of the People's Republic of China who claimed that she was persecuted due to her practice of Falun Gong. She claimed to have been detained in 1999 and to have witnessed the torture of other Falun Gong adherents. The Tribunal found that the applicant was not a credible witness and rejected her claims. Part of the reasoning process of the Tribunal was based on a talk that a Dr Penny had given to the Tribunal to assist in the Tribunal's acquisition of specialist knowledge about Falun Gong and China. 4 On the day after the hearing, the Tribunal sent a letter to the applicant requesting the provision of information and comments. The letter was discussed in the reasons for judgment of the Federal Magistrate. The Federal Magistrate refused to accept it as a letter under s 424A of the Migration Act 1958 (Cth). Nevertheless, it put the applicant on clear notice of issues concerned with Dr Penny's talk and the importance of them to her claims. 5 The Federal Magistrate said that the decision of the Tribunal did not turn on any information required to be disclosed under s 424A. That, with respect, is a correct conclusion if Dr Penny's material can be classified as falling within s 424A(3)(a). In other words, the Federal Magistrate was correct if that material was information, not specifically about the applicant or another person, but just about a class of persons of which the applicant or other person is a member. In my view, the material is of that character and, therefore, s 424A was not engaged. That was one of the reasons that led to the Tribunal's conclusion that it did not accept the applicant's evidence. 6 The application before the Federal Magistrate had three grounds of review. The first was a breach of s 424A. The Federal Magistrate rightly rejected that, in my view. The second and third grounds of review were set out in [2] of the Magistrate's reasons, and were as follows: - …