SZKSM v Minister for Immigration and Citizenship [2008] FCA 632

FEDERAL COURT OF AUSTRALIA

SZKSM v Minister for Immigration and Citizenship [2008] FCA 632

SZKSM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2486 of 2007

RYAN J

8 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2486 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKSM

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE OF ORDER: 8 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file and serve a notice of appeal be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $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 2486 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKSM

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 8 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 There is before the Court an application for extension of time to file and serve a notice of appeal from orders of Cameron FM of 30 October 2007. The application for leave to appeal has been filed with an affidavit sworn by the applicant in support of the application to which a draft notice appeal is attached. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which had been handed down on 24 May 2007.

Background 2 The applicant is a citizen of the People's Republic of China and arrived in Australia on 23 November 2006. On 18 December 2006, the applicant filed an application for a protection (class XA) visa, which was refused by a delegate of the first respondent ("the Minister") on 20 January 2007. On 31 January 2007, the applicant filed an application in the Tribunal for review of the delegate's decision. The applicant claimed to fear persecution due to his practice of Falun Gong. The applicant allegedly commenced practising Falun Gong in 1997 for health reasons. He claimed to have promoted it to others. According to the applicant, he obtained a passport by paying a bribe and left China in order to avoid persecution directed towards Falun Gong practitioners generally. 3 The Tribunal conducted a hearing on 6 March 2007 and published its decision on 24 May 2007 affirming the delegate's decision not to grant the visa. The Tribunal did not accept the applicant's claims, finding that he possessed a limited knowledge of the principles and practice of Falun Gong, which was not explicable by his limited education. The Tribunal also found his inadequate recollection of protests in 1999 against official repression of Falun Gong inconsistent with what would be expected of a person who had practised and promoted Falun Gong during the period which the applicant had claimed. The Tribunal concluded by stating that it; ' … does not accept that the applicant is, or has ever been, in China or Australia, a Falun Gong practitioner or that he has ever been involved in promoting the benefits of Falun Gong as claimed. … …The Tribunal does not accept that he will be involved in practicing Falun Gong in China upon his return. The Tribunal therefore does not accept that … he will be persecuted for reasons of involvement in Falun Gong if he returns to China now or in the reasonably foreseeable future, …' 4 On 4 June 2007 the applicant filed an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. 5 Before Cameron FM, the applicant claimed that the Tribunal had failed to comply with section 424A of the Migration Act 1958 (Cth) ("the Act"), had failed to understand the applicant's claims and had refused the applicant a protection visa without proper grounds. The applicant also asserted that the Tribunal's decision had been illogical and reiterated his belief that he would be gaoled if forced to return to China. The learned Federal Magistrate found that the information relied upon by the Tribunal in reaching its decision had been supplied by the applicant as part of the review and was therefore subject to the exception in s 424A(3)(b) of the Act. That included information concerning the applicant's acquisition of a passport. No further particulars had been provided to support the assertion that the Tribunal had misunderstood the applicant's claims and his Honour found that the Tribunal; '... clearly understood, investigated and considered the claim but failed to be satisfied that the applicant had met the criteria for a protection visa.' 6 His Honour further considered that the applicant appeared to have misconceived the Tribunal's fact finding role and reiterated that it was under no obligation to conduct a further investigation beyond the matters which it had canvassed. The applicant's restatement of his claim to fear persecution in China was regarded as amounting to a request for impermissible merits review. 7 Finally, in relation to s 425 of the Act the learned Federal Magistrate held that there was no evidence before the Court to support a claim that the applicant had not been well enough to give evidence or respond to questioning. On 30 October 2007 Cameron FM dismissed the application. 8 On 19 December 2007, the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal from the orders of Cameron FM of 30 October 2007. That application was necessary because a notice of appeal had not been filed and served within the time limits prescribed by the Rules of this Court. The application was accompanied by a supporting affidavit sworn 10 December 2007 attaching a draft notice of appeal and setting out the grounds of the application as follows; '(1)(a) I am Falun Gong practitioner from China. I will face a threat to my personal security or human rights abuse of my human dignity if I return to my country.