FEDERAL COURT OF AUSTRALIA

SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221

SZERV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1039 OF 2005

DOWSETT J

24 AUGUST 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal filed on 24 July 2005 be dismissed. 

2.         The purported appeal pursuant to notice of appeal filed on 19 July 2005 also be dismissed.

3.         The applicant pay the respondent’s costs of these proceedings

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a decision of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal.

2                     The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 13 May 2004.  On 20 May 2004 he lodged an application for a protection visa.  On 25 May 2004 a delegate of the Minister refused the application and on 16 June 2004 the applicant applied for review of that decision.

3                     The applicant’s claim to refugee status was based upon a claim that he was a practitioner or follower of Falun Gong.  Similarly based claims have been frequently considered by the courts in recent years.  The Tribunal refused the application for review, at least partially upon the basis that it was not satisfied that the applicant was a genuine and sincere Falun Gong practitioner.  This conclusion was, to some extent, based upon inconsistencies in his evidence to which I will refer at a later stage.

4                     At first instance the applicant sought review upon the following grounds:

‘1.        I meet the refugee criteria.

2.         I fear of being jailed because I belong in a particular social group - Falun Gong.

3.         My fear is well-founded because Chinese Government still suppress Falun Gong practitioners.’

5                     Elsewhere, the applicant claimed that:

‘The Tribunal member did not consider the material which is in my favour.’

6                     No clear ground for judicial review emerges from the application.  At some stage prior to the hearing on 25 November 2004 the applicant was ordered to serve on or before 1 March 2005, an amended application giving particulars of each ground of review.  The applicant failed to comply with that order, and the respondent applied for dismissal of the proceedings.  Rule 13.03 of the Federal Magistrates Court Rules provides:

‘1.        This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.

2.         Subject to any other order or transfer the Court may, on the application of another party in the proceeding or on its own motion, make an order:

(a)       that the step be taken within a stated time; or

(b)       to end the proceeding or dismiss a response.

3.         The Court may make the order sought or another order that it considers appropriate.’

7                     The Magistrate dismissed the proceedings pursuant to rule 13.03(2)(b).  It seems that the order is interlocutory, and so the applicant has sought leave to appeal.  According to the application the grounds upon which leave is sought appear in the accompanying affidavit.  However, that affidavit states only as follows:

‘(a)      I am a Falun Gong practitioner.

(b)       I was prosecuted by Chinese Government when I was in China.

(c)        I face a risk of being jailed if I go back to China.’

8                     Fairly clearly those assertions do not identify either a ground for leave to appeal or a basis for finding jurisdictional error in the proceedings of the Tribunal.  I should say that in an amended notice of appeal which appears to have been either erroneously filed or filed in the hope of obtaining leave to appeal the applicant refers only to grounds going to the merits of his claim to be a refugee and not to any jurisdictional error in the Tribunal.

9                     Subject to one matter to which I will refer in a moment the applicant has failed to identify any basis for an allegation of jurisdictional error.  In those circumstances there would seem to be no ground for giving leave to appeal as there is no viable ground of appeal.  However, counsel for the Minister has very properly drawn my attention to one possibly arguable ground for alleging jurisdictional error.  It arises out of the operation of s 424A of the Migration Act 1958 (Cth) (the “Act”), which requires that the Tribunal notify the applicant of any information which the Tribunal considers would be the reason or part of the reason for affirming the decision under review.  Such notification must be given pursuant to s 441A of the Act.  The requirement does not apply to information which the applicant gave for the purpose of “the application”.

10                  In its reasons the Tribunal observed that in his protection visa application, the applicant had indicated that he ceased to practise Falun Gong in 1999.  At the hearing he claimed that he had continued as a practitioner until April 2004.  The Tribunal relied upon this discrepancy in rejecting the claim.  In Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27 the Full Court held that the word “application” in subs 424A(3)(b) means “application to the Tribunal” and not “application for a visa”.  If this is so then it follows that if the Tribunal considers that such information might be part of its reason for affirming the decision, it should give notice of it to the applicant and offer him or her an opportunity to comment upon it.  Accepting the decision as being correct as a matter of construction, it would nonetheless be extraordinary if material filed in support of the visa application were to be treated as not having been supplied for the purposes of the application to the Tribunal.  The Tribunal is, after all, obliged to stand in the shoes of the Minister for the purpose of considering the original application.  Its duty is to consider the information which was before the Minister and any further information put before it. 

11                  Whether or not this intuitive reaction is correct, it seems to me that the argument in this case must fail for two reasons.  Firstly, in SZEKY v The Minister 2005 FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based.  That view seems to me, with respect, to be correct.  Secondly, in the present case, the Tribunal requested the applicant to interpret his original visa application statement.  He identified his signature at the bottom of the relevant page and agreed that the statement contained his claim, and explained his reasons for fearing return to China.  His attendance at the Tribunal hearing and his responses to questioning were for the purpose of the application to the Tribunal.  All of that information, therefore, became information provided by him to the Tribunal for the purpose of the application.  I am told that this view was taken by Madgwick J in SZFKL v The Minister (2005) FCA 931, but that Jacobson J took a different view in NAZY v The Minister(2005) FCA 744.  I find myself in respectful disagreement with the view taken by Jacobson J.  I see no substance in this line of argument.  In any event, it can hardly be appropriate for a court, on appeal, to formulate a grounds of appeal and then invite the appellant to adopt it.  It would be particularly difficult if the court were then to continue to hear the appeal.  Questions might also arise as to costs if the argument were unsuccessful.  It is not necessary to consider the matter further. 

12                  I dismiss the application for leave to appeal filed on 24 July 2005.  I dismiss the purported appeal pursuant to notice of appeal filed on 19 July 2005.  I order that the applicant pay the respondent’s costs of these proceedings.

Associate:

Dated:              6 September 2005