FEDERAL COURT OF AUSTRALIA

SZMZY v Minister for Immigration and Citizenship [2009] FCA 1443

SZMZY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 825 of 2009

MOORE J

9 DECEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondents' costs fixed in the sum of $2735.00

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

1                     This is an application for leave to appeal from a judgment of a Federal Magistrate of 23 February 2009: SZMZY v Minister for Immigration & Anor [2009] FMCA 126.  The applicant unsuccessfully sought review by the Refugee Review Tribunal of a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  The applicant is a citizen of China, and he claimed that if he were to return to China, he would be exposed to a risk of harm of the type contemplated by the Refugees Convention by reason of his practice of Falun Gong.

2                     The Federal Magistrate found that there was no substance to either of the grounds raised by the applicant.  Nor was there otherwise any arguable case of legal error by the Tribunal apparent to the Federal Magistrate.  Accordingly, the Federal Magistrate dismissed the application pursuant torule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3                     The application for leave to appeal was filed on 10 August 2009 nearly 6 months after the Federal Magistrate delivered his judgment.  In the draft notice of appeal attached to his affidavit in support of the application, the applicant alleged that the Federal Magistrate failed to consider his claim that the Tribunal’s decision was affected by jurisdictional error in that it incorrectly applied s 91R(3) of the Migration Act 1958 (Cth) (the Act).  The applicant's contention misunderstands the Tribunal's role when applying s 91R(3) of the Act: see Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 25 ALR 595.  Unless it reached the requisite level of satisfaction, the Tribunal was entitled to disregard the applicant’s evidence about his Falun Gong practices when in Australia.

4                     Moreover, on the basis of the Tribunal’s decision record, it is clear that the Tribunal explained to the applicant at the hearing the effect of s 91R(3) of the Act: cf SZJYA v Minister for Immigration and Citizenship (No 2)[2008] FCA 911. 

5                     No error on the part of the Federal Magistrate has been made out by the applicant.  Accordingly, I propose to dismiss the application for leave to appeal on the basis that the appeal is doomed to fail.

6                     I also order that the applicant pay the respondents' costs fixed in the sum of $2735.00.

Associate:

Dated:         9 December 2009