SZKTN v Minister for Immigration and Citizenship [2008] FCA 633

FEDERAL COURT OF AUSTRALIA

SZKTN v Minister for Immigration and Citizenship [2008] FCA 633

SZKTN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2487 of 2007

RYAN J

SYDNEY

8 may 2008

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2487 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKTN

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.

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 2487 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKTN

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 a decision of Turner FM handed down on 19 November 2007. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), dated 15 May 2007.

Background 2 The applicant is a citizen of the People's Republic of China and arrived in Australia on 12 December 2006. On 15 December 2006 the applicant filed an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 20 January 2007 a delegate of the first respondent ("the Minister"), refused the applicant's application for a protection visa. 3 On 26 February 2007 the applicant filed an application for review by the Tribunal of the delegate's decision and a hearing was conducted by the Tribunal on 4 April 2007. Before the Tribunal the applicant claimed to fear persecution for reasons of his adherence to Falun Gong if he were to return to China. He claimed that his house had been raided by police in 1999 and that he had been fined 5000 yuan for refusing to cooperate with them. At some stage, the applicant claimed he was arrested again in Beijing for Falun Gong related activities and illegally detained for a period. According to the applicant, he was arrested yet again in 2004 and imprisoned for 22 days. He then elected to come to Australia in order to practise Falun Gong freely. 4 On 15 May 2007 the Tribunal delivered its decision affirming the decision of the delegate not to grant the applicant a protection visa. In its reasons the Tribunal did not accept that the applicant had ever been a Falun Gong practitioner either in Australia or in China. It found his knowledge of Falun Gong insufficient and inconsistent with that of a person who had practised Falun Gong over the period of time which the applicant claimed. The Tribunal consequently found that the applicant had not been persecuted in China for the reason of his adherence to Falun Gong and that he did not hold a well-founded fear of future persecution for that reason. 5 On 12 June 2007 the applicant filed an application in the Federal Magistrate's Court for judicial review of the Tribunal's decision. Before Turner FM the applicant claimed that the Tribunal had committed an error of law by failing to consider favourable information and by lacking evidence on which to base its decision. The applicant also alleged that the Tribunal had contravened s 424A of the Migration Act 1958 (Cth) ("the Act"), and reiterated several of his factual claims. The learned Federal Magistrate found that the Tribunal's decision was not infected with jurisdictional error and ordered accordingly that the application be dismissed with costs. 6 On 19 December 2007 the applicant filed an application for extension of time to file and serve a notice of appeal in this Court. The application was accompanied by a supporting affidavit sworn 5 December 2007, in which he deposed; '1. The application was refused by a delegate of the first respondent on 20 Jan 2007 and by the Tribunal on review on 23 April 2007. On 15 December 2006 the application lodged to the Department of Immigration for a protection visa. In this application I claimed to fear persecution in China on the basis my practice of Falun Gong.