FEDERAL COURT OF AUSTRALIA

SZMKW v Minister for Immigration and Citizenship [2008] FCA 1710

Federal Magistrates Court Rules 2001 (Cth), r 44.12(1)(a)   

SZMKW v Minister for Immigration & Anor [2008] FMCA 1232 upheld

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed and applied    

SZMKW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1446 of 2008

FOSTER J

12 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused.

2.                  The appellant pay the costs of the first respondent of and incidental to the application for leave to appeal.

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.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 1 September 2008 (SZMKW v Minister for Immigration & Anor [2008] FMCA 1232) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) delivered on 22 May 2008.  The learned Federal Magistrate dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).  The effect of that order was that the decision of the Tribunal was affirmed.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. 

2                     Because the application was dismissed by the Federal Magistrate pursuant to the rule to which I have referred, in my view, the appellant requires leave to appeal from the decision of the Federal Magistrate.  The first respondent filed a Notice of Objection to Competency on 23 October 2008 in which the first respondent raised the proposition that the decision of the Federal Magistrate was an interlocutory judgment in respect of which leave to appeal was required.  The Notice of Objection to Competency was filed out of time in the sense that it was filed after the time limited for the filing of such a document by a direction made by the Registrar.

3                     No point has been taken by the appellant as to the late filing of this Notice and, in light of the first respondent’s attitude to the procedural defect identified in the Notice, no point of substance arises from the late filing of that Notice.  As I have said, leave to appeal is required (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).  In order to secure leave to appeal from an interlocutory judgment, an applicant must show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that, if the judgment below is found to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

4                     I will continue to refer to the appellant as “the appellant” notwithstanding the fact that I propose to deal with the matter upon the basis that the process filed constitutes an application for leave to appeal.  Ms Weston, on behalf of the first respondent, accepts that I should approach the matter on the basis that the process filed is an application for leave to appeal from the Federal Magistrate’s decision and I intend to deal with the matter on that basis. 

5                     The appellant is a citizen of China who arrived in Australia on 11 November 2007.  On 4 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused that application on 16 January 2008.  On 31 January 2008 the appellant applied to the Tribunal for a review of that decision. 

6                     In the proceedings before the Tribunal the appellant claimed to have a well-founded fear of persecution by reason of her practice of Falun Gong.  She claimed before the Tribunal that she was introduced to Falun Gong in 2000, though she later stated she had been introduced to Falun Gong in 1997 by a customer in the shop where she worked.  She said that in 2007 she was practising Falun Gong at a friend’s house and that the police came and arrested them.  She claimed that she had been detained for five days during which time she was tortured.  She said that she was released when her husband paid a large sum of money, presumably to the authorities. 

7                     The Tribunal found that the appellant was not a credible witness.  The Tribunal found that the appellant’s evidence was inconsistent, implausible and confused and noted that in many instances she was not frank or forthcoming in the answers she gave. 

8                     The Tribunal also stated that it found the appellant’s lack of knowledge of the principles and meaning of Falun Gong and her inability to discuss at any level her interest in the practice of Falun Gong to be highly inconsistent with her claim to have practised Falun Gong on and off since 1997.  The Tribunal concluded that it could not be satisfied that the appellant was a Falun Gong practitioner and therefore did not accept that the appellant had been detained for practising Falun Gong as she had claimed.  The Tribunal ultimately concluded that the appellant would not have a well-founded fear of persecution for a Convention reason if she returned to China. 

9                     Before the Federal Magistrate, the appellant claimed that: 

(1)               The Tribunal was biased against her;

(2)               The Tribunal failed to provide sufficient details of the evidence and materials used to support its decision and referred to out-of-date independent information; and

(3)               The Tribunal failed to consider the appellant’s claims because of a limited knowledge of the background of China. 

10                  The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that there was no substance to any of the grounds set out in the application made to the Federal Magistrate.  His Honour found that there was no evidence to support any allegation of bias.  His Honour also found that, contrary to the appellant’s claims, the Tribunal had embarked upon a course of oral disclosure at the hearing seemingly made pursuant to s 424AA of the Migration Act 1958 (Cth).  His Honour further stated that it was arguable that this approach to disclosure went beyond the Tribunal’s statutory obligations as it related to the inconsistencies between the appellant’s oral and written claims. 

11                  His Honour dismissed the other grounds relied upon by the appellant before him on the basis that they went to the merits of the Tribunal decision which constituted a ground of complaint not available before his Honour.  The Federal Magistrate concluded that the show cause application failed to disclose an arguable case of jurisdictional error and therefore dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 

12                  In this Court, the Notice of Appeal – being the process filed by the appellant – specified the following Grounds of Appeal:

(1)               That the Tribunal was biased against the appellant and did not make a fair decision on her application. 

(2)               That the learned Federal Magistrate behaved unfairly in dismissing the appellant’s application on the day it was heard, namely on 1 September 2008. 

(3)               That the Federal Magistrate did not consider the appellant’s application reasonably in the sense that he did not undertake a merits review of her claims to being a Falun Gong practitioner. 

13                  In the hearing before me this morning the appellant has not advanced any ground in support of her application for leave to appeal or the above grounds of appeal other than to reassert her claim to be a Falun Gong practitioner and her fear of persecution if she returns to China. 

14                  There is no evidence whatsoever that the Tribunal was biased against the appellant.  Insofar as that is to be relied upon as a ground of appeal, it is without substance. 

15                  The remaining grounds contained in the Notice of Appeal filed by the appellant rise no higher than an attempt to re-agitate a merits review of the Tribunal’s decision which cannot be done in this Court on this application.  In my judgment, therefore, the Federal Magistrate’s decision is not attended by sufficient doubt to warrant interference and there is nothing about that decision which invites review.

16                  Furthermore, even if I were to assume that the approach taken by the Federal Magistrate was wrong, having regard to the decision and findings of the Tribunal, no substantial injustice will be suffered by the appellant if leave to appeal is refused.  Accordingly, I refuse leave to appeal to the appellant and I order the appellant to pay the costs of the first respondent of and incidental to the application for leave to appeal.

Associate:

Dated:         17 November 2008