SZJFI v MIAC & Anor [2008] HCATrans 40 (7 February 2008)

Last Updated: 13 February 2008

[2008] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S249 of 2007

B e t w e e n -

SZJFI

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 FEBRUARY 2008, AT AM 9.13 AM

Copyright in the High Court of Australia

KIRBY J: The applicant is a national of the People's Republic of China. He arrived in Australia in January 2005 and promptly applied for a protection visa. He claimed to be a "refugee" in accordance with the Refugees Convention and Protocol, given effect in Australia by the Migration Act 1958 (Cth) ("the Act").

The application was rejected by a delegate of the Minister. The Refugee Review Tribunal in May 2005 affirmed the delegate's decision. In April 2006, the Federal Magistrate's Court, on judicial review, set the decision of the Tribunal aside and remitted the matter for redetermination by a differently constituted Tribunal. However, the second Tribunal reached the same conclusion and rejected the application.

The applicant's claim to persecution was based on his alleged membership of the Falun Gong movement and his activities in connection with that movement. He claimed to have been gaoled without charge and to have spent a year and a half in prison without conviction. During this time he said that he was physically and mentally mistreated because he refused to renounce his beliefs. After his release from prison he claimed that he was dismissed from his employment and remained under the surveillance of the Public Security Bureau. He made other claims of threats of arrest and confiscation of property without compensation.

The Tribunal expressed misgivings about the credibility of the applicant based on country information concerning the treatment of Falun Gong practitioners. It contrasted the applicant's claim to have been detained with the apparent ease with which he was able to obtain a passport to leave China. The Tribunal did not accept that any difficulties that the applicant had experienced in China were for a Convention reason. It concluded that the Falun Gong activities that he had undertaken in Australia were contrived, so as to support his application. They were thus liable to being disregarded in accordance with s 91R(3) of the Act. The application was rejected on the merits.

The application for judicial review in the Federal Magistrates Court was rejected by Scarlett FM who found no jurisdictional error. On appeal to the Federal Court of Australia, the jurisdiction of that court was exercised by Gilmour J. His Honour found no jurisdictional or other error warranting intervention. In these circumstances, the application presents a most unpromising one for the intervention of this Court. It turned on the adverse conclusion of the Tribunal about the factual foundation of the applicant's claim to be a "refugee".

Because of all the circumstances, we have considered the entirety of the record to see whether any foundation exists for the intervention of this Court. However, we can find none. The application must be refused.

Because the applicant is unrepresented and has filed a written case, his application was dealt with in accordance with rule 41.10 of the High Court Rules. In accordance with rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition signed by Heydon J and myself.

AT 9.16 AM THE MATTER WAS CONCLUDED