SZGEF v Minister for Immigration and Citizenship [2007] FCA 1711

FEDERAL COURT OF AUSTRALIA

SZGEF v Minister for Immigration and Citizenship [2007] FCA 1711

SZGEF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL No NSD 1197 of 2007

FINN J

9 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1197 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGEF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J

DATE OF ORDER: 9 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal fixed in the sum of $2,800.00. 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 1197 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGEF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J

DATE: 9 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Federal Magistrate Driver dismissing an application under the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal which affirmed a delegate's decision to refuse to grant the appellant a Protection (Class XA) visa. The appellant is a citizen of China who arrived in Australia on 19 June 2004. 2 It is unnecessary for the purposes of this appeal to outline in any detail the rather lengthy procedural history of this matter. The appeal itself must be dismissed for the reasons I give below.

THE TRIBUNAL'S FINDINGS AND REASONS 3 The Tribunal characterised the appellant's claims to fear persecution in China as having two bases. The first was because she had actively protested against China's "One Child" policy and the practices of officials in pursuit of that policy. The second was that she had come to adverse attention because of her religion. The Federal Magistrate conveniently and in my view accurately summarised the Tribunal's reasons and conclusions in the following: "The Tribunal: a) did not accept that the applicant gave a truthful account of her journey from her home village to Australia (and gave detailed reasons why); b) found that the applicant's claims about where she had lived undermined her claims to have been hiding from authorities at the same time; c) found that her claim to have been arrested in February 2002 (which had not been included in her protection visa application) was contradictory; d) observed that the applicant was an unimpressive witness (and gave detailed reasons why); e) observed that the applicant's evidence was at odds with independent country information; f) noted that given the credibility concerns of the Tribunal, it would prefer independent country information to the applicant's evidence where it differed with the applicant's evidence; g) found, having regarded to much of the applicant's own evidence, that there would be no further adverse consequences in China for the applicant as the result of her having had a second child; h) concluded that there was no real chance that the applicant will experience serious harm or systematic or discriminatory conduct in the future arising out of the birth of her second child; i) did not accept that applicant's claims to have been involved in protests about China's one child policy and found that the applicant was not adversely regarded by authorities for such a reason and did not accept she would be involved in such protests if she were to return to China; j) concluded that there was not a real chance the applicant would be involved in anti-government protests if she returned to China now or in the reasonably foreseeable future; k) noted that it had concluded that the applicant's knowledge of Christianity was obtained in Australia; l) found that the applicant was not arrested on 28 February 2002 in China for 'spreading the gospel'; m) found that there was not a real chance that the applicant would be prevented from practising her religion if she returned to Fujian now or in the foreseeable future and that she will not have to modify her conduct in order to escape persecution on account of her religious beliefs. The Tribunal concluded that the applicant did not have a well founded fear of persecution for a Convention reason if she was to return to China." (Footnotes omitted.) 4 I should add that the Tribunal's reasons contained an extended exposition of the evidence and reflected a fair and comprehensive analysis of the appellant's case. I make this observation because of the late and unsubstantiated allegation of partiality made against the Tribunal. 5 The grounds on which judicial review was sought (omitting the particulars) were: "1. The Tribunal erred by making a finding based on INCORRECT information, which has NOT been given by me but MISSTATED by the Tribunal itself. … 2. The Tribunal erred by failing to comply with its obligation under s.424A(1) of the Act. … 3. The Tribunal failed to properly assess my claims and correctly apply s.91R and thereby fell into jurisdictional error. … 4. The Tribunal erred by failing to comply with its obligation under s.425 of the Act. … 5. In summary, the Tribunal failed to consider my claims properly and fairly. The Tribunal made its finding actually based on unwarranted assumption; the Tribunal ignored or failed to consider a claim I made to it; the Tribunal ignored other relevant materials which was before it; and the Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact." (Emphasis in original.) 6 I would note in passing that the grounds of appeal against the decision of Driver FM are in near identical terms. Unlike the application for the order of review, they are not particularised. The appellant's submissions on the appeal provide, in effect, particulars to the second of the above grounds by reference primarily to matters raised in the s 424A letter that had been sent to the appellant by the Tribunal.