Case: SZMNK v Minister for Immigration and Citizenship [2008] FMCA 1669
Outcome: affirmed
Application was then filed with the Federal Magistrates Court on 15 July 2008. The grounds upon which that application was advanced were stated to be as follows (again without alteration): 1. Jurisdictional error has bee made. RRT did not use favorable cases to my application. Procedural Fairness has been denied. RRT failed to address me potential sur place claim that I would be exposed to a real risk of persecution in the future as I am devoted Christian. That Court dismissed the application by way of a decision published on 16 December 2008: SZMNK v Minister for Immigration and Citizenship [2008] FMCA 1669. The Federal Magistrate's decision noted that each of the first two grounds relied upon was but a " bare assertion " and that no particulars were provided or submissions advanced in support of the assertions made. Nor did the then Applicant avail himself of an opportunity extended to him by the Federal Magistrate to file an Amended Application and further evidence. Notwithstanding the deficiencies in the Application as filed, the Federal Magistrate proceeded to address each of the grounds and satisfied herself that each of the grounds should be rejected. The Federal Magistrate further noted " [t]hese grounds have been seen regularly in this Court before[,] even to the spelling mistake in ground 1 in relation to 'bee' ". A Notice of Appeal was then filed with this Court on 13 January 2009. The purported Grounds of Appeal are there specified (without alteration) as follows: 1. Refugee Review Tribunal did not make fair decision for my application 2. I gave all details about my claims but the Judge refused my application on my hearing date. It is not fair. I am Christian. I will be persecuted if I return to China. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. An Affidavit sworn by the now Appellant states (without alteration): My application for a protection visa was refused by DIAC and RRT and I found RRT decision is not fair. I lodged my application to be reviewed at Federal Magistrates Court. The judge did not consider all information provided at my Hearing. I have no chance to provide more evidence and my case was dismissed. The now Appellant appeared before the Court this morning unrepresented, although he did have the assistance of an interpreter. He has explained to the Court that the purported Grounds of Appeal were drafted by a " friend " and that he was unable to further expand on what was intended to be conveyed by those Grounds. He has further explained that the further evidence that he wished to adduce before the learned Federal Magistrate was evidence that: he had been detained by the police in China for a period of two days; and he had been fined RMB 5,000. This evidence formed part of his statement as set forth in his original application received by the Department on 8 January 2008. The Appellant also stated that the contents of his Affidavit had not been translated to him prior to execution and that he was simply asked by a " friend " to sign the Affidavit . That was what he did, apparently not knowing what he was signing. Contrary to that which is set forth in his Affidavit , the Federal Magistrate's reasons expressly state that " the Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any evidence by way of affidavit ": [2008] FMCA 1669 at [26] . No further evidence was filed. Moreover, and, in any event, there was no need to file " more evidence ". The " more evidence " that the now Appellant wished to adduce was already in evidence. The statement annexed to the original January 2008 application for a protection visa relevantly stated: They arrested seven of us into Fuqing police station. [XXX] signed a piece of paper, showing that he would no longer gather with us. [XXX] did this to protect us from police's persecution. As a result, we spent 2 days in the police station. We were released after paid RMB5,000. This was evidence that was before the Minister's delegate and before the Tribunal. The Tribunal asked questions of the now Appellant as to this statement and rejected his evidence, finding in part as follows: [62] Further, and given all the above and its earlier findings, it follows that the Tribunal does not accept the applicant's claim that in October 2006, the local police broke into [XXX's] home during a religious gathering and took them to a police station; their Bible and religious documents were confiscated as evidence; seven people were arrested and [XXX] signed an undertaking that he would no longer gather with them in order to protect them from persecution; and, as a result, they were released two days later after paying RMB 5,000. It also follows that the Tribunal does not accept that he was fined RMB 5,000 Yuan as he claims, as otherwise he would not have been allowed to legally depart China using a passport issued to him in his own name and with all his personal details and photographs in it. It was also evidence expressly referred to by the Federal Magistrate: [2008] FMCA 1669 at [14] . The assertion that the now Appellant was denied an opportunity to advance further evidence before the Federal Magistrate, accordingly, exposes no appellable error. None of the purported Grounds of Appeal , it should further be noted, comply with Order 52 r 13(2)(b) of the Federal Court Rules .