SZDML v Minister for Immigration & Citizenship [2008] FCA 1673

FEDERAL COURT OF AUSTRALIA

SZDML v Minister for Immigration & Citizenship [2008] FCA 1673

SZMDL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1205 of 2008

EDMONDS J

12 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1205 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMDL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE OF ORDER: 12 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1205 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMDL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE: 12 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 The appellant appeals from the judgment and orders of Driver FM made on 11 July 2008, SZMDL v Minister for Immigration & Anor [2008] FMCA 964, dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') signed on 11 March 2008 and handed down on 20 March 2008. The Tribunal affirmed a decision of a delegate of the first respondent ('the Minister') on 15 May 2007 to refuse to grant the appellant a Protection (Class XA) visa.

Factual Background 2 The appellant is a male citizen of China who claimed to fear persecution because of his Christian religion. In particular, he claimed to be a member of an underground Christian Church and to have been involved in spreading religious propaganda over the Internet. The appellant further claimed to fear persecution because of his political opinion, and to have published articles concerning political matters. 3 The Tribunal found that the appellant was not a witness of truth. It rejected his claims to be a committed Christian who posted articles on the Internet and was detained and harmed for these actions. The Tribunal gave the following reasons for so finding: (1) The applicant's oral evidence was inconsistent with his Protection Visa Application (PVA) concerning whether the applicant had been baptised. (2) The applicant gave oral evidence that he took no positive act to become Christian and just attended Christian gatherings because his friends took him there. (3) The applicant's claims about posting articles on the Internet were implausible. The applicant was unable to satisfactorily describe the content of the articles. The one article he did describe was an anti-government article regarding a motor vehicle accident, whereas in his PVA the applicant clamed to have posted religious articles. (4) The applicant's profile in his PVA was inconsistent with his profile in his visitor visa application (particularly regarding where the applicant was living and working). The Tribunal did not accept that the applicant lived in Fujian or worked in a computer shop there. 4 The appellant sought judicial review of the Tribunal's decision by application filed in the Federal Magistrates Court on 15 April 2008. The grounds of that application alleged that the Tribunal made procedural and jurisdictional errors. The particulars provided alleged that the Tribunal failed to act according to substantial justice and the merits of the case, and breached s 424A of the Migration Act 1958 (Cth) ('the Act'). 5 The Court convened a hearing of the application on 11 July 2008. On that date, Federal Magistrate Driver delivered ex tempore reasons for judgment in which he ordered, inter alia, that the application be dismissed.