FEDERAL COURT OF AUSTRALIA SZLGK v Minister for Immigration & Citizenship [2008] FCA 1054 MIGRATION - application for leave to appeal out of time Migration Act 1958 (Cth) SZLGK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 593 OF 2008 FRENCH J 14 JULY 2008 SYDNEY CATCHWORDS IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 593 OF 2008 BETWEEN: SZLGK Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FRENCH J DATE OF ORDER: 14 JULY 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The Applicant pay the Respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. CATCHWORDS IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 593 OF 2008 BETWEEN: SZLGK Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FRENCH J DATE: 14 JULY 2008 PLACE: SYDNEY REASONS FOR JUDGMENT This is an application for leave to appeal out of time against a decision of the Federal Magistrates Court given on 12 March 2008 in Sydney. The applicant is a citizen of China. He came to Australia on 28 February 2007 on a business visa. On 22 March 2007 he applied for a protection visa. That application was refused by a delegate of the Minister on 12 April 2007. The applicant sought review of that decision in the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the delegate's decision on 6 July 2007. The applicant had contended he was a senior Falun Gong practitioner, that he had practiced Falun Gong since 1998 and had been detained and harassed by authorities because of that association. He said that he left China because of a fear of harm and that he would face persecution if he were to return there. The Tribunal disbelieved him and it is unnecessary to go into its detailed reasons for so doing. It is sufficient to say that it was not satisfied that he had a well-founded fear of persecution for any reason relevant to the Convention. When he sought judicial review in the Federal Magistrates Court the applicant raised, as grounds of review, a number of matters none of which the Court found to be made out or to disclose that there was any jurisdictional error on the part of the Tribunal. -2- In his draft notice of appeal, filed in support of his application for an extension of time to appeal to this Court, he alleged: 1. The Tribunal failed to consider his application according to s 91R of the Migration Act 1958 (Cth) (the Act) because of bias against him. 2. The Tribunal failed to carry out its statutory duty, it did not notify him of the reason or reasons for affirming the decision and failed to consider his application according to s 424A of the Act. Upon his appearance today the applicant began by conceding that both the Tribunal and the magistrate had acted correctly. He nevertheless maintained that he was at risk if returned to China by reason of his involvement in Falun Gong activities since his arrival in Australia. He also said that he had appropriate skills which would be of use in Australia. In its decision, the Tribunal took the view that the applicant had not been involved in Falun Gong in China and did not accept that he would be at risk of persecution because of alleged participation in Falun Gong in Australia. It found that his attendance at two Falun Gong events in Australia was for the purpose of gathering evidence for his application. It placed no weight on his conduct in Australia as evidence of a commitment to Falun Gong or a political opinion. Section 91R of the Act requires that, in determining whether a person has a well-founded fear of being persecuted, for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention, any conduct engaged in by the person in Australia is to be disregarded. That is, unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Convention. No case was advanced, so far as appears from the record, that the conduct was engaged in otherwise than for that purpose. In any event, the Tribunal found that the attendance of Falun Gong events in Australia was simply to gather information for the purpose of supporting a fabrication. -3- There is no jurisdictional error disclosed on the face of the Tribunal's reasons, which I have read, nor is there any appellable error disclosed on the face of the magistrate's reasons which would reasonably fall within the scope of the matters indicated on the notice of appeal. The appeal is without any legal merit. The application for leave to appeal is dismissed and the applicant is to pay the respondent's costs of the application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 16 July 2008 SZLGK appeared in person Counsel for the First Ms A Nanson Respondent: Solicitor for the First Australian Government Solicitor Respondent: Date of Hearing: 14 July 2008 Date of Judgment: 14 July 2008