SZEHX v Minister for Immigration & Multicultural & Indigenous Affairs (with Corrigendum dated 1 August 2005) [2005] FCA 1039 (28 July 2005)

Last Updated: 1 August 2005

FEDERAL COURT OF AUSTRALIA

SZEHX v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1039

CORRIGENDUM

SZEHX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 601 OF 2005


CONTI J
28 JULY 2005(CORRIGENDUM 1 AUGUST 2005)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 601 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEHX APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	28 JULY 2005
WHERE MADE:	SYDNEY

CORRIGENDUM

In the judgment of Justice Conti delivered 28 July 2005 please make the following amendment:
On the cover page, please change the reference to ‘NSD 436 OF 2005’ to ‘NSD 601 OF 2005’.

I certify that the preceding is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Conti.

Associate:

Date: 1 August 2005

FEDERAL COURT OF AUSTRALIA

SZEHX v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1039

MIGRATION – no issue of principle































SZEHX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 436 OF 2005


CONTI J
28 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 601 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEHX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	28 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2 The appellant to pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 601 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEHX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	28 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from the orders and reasons for judgment of Federal Magistrate Lloyd-Jones made and given on 1 April 2005, which dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 2 August 2004, and which affirmed an earlier decision of a delegate of the Minister dated 15 April 2004 refusing the appellant a protection (Class XA) visa.

2 The Tribunal accepted that the appellant was a citizen of the People’s Republic of China. The appellant’s claims are summarised at [5] – [6] of the Federal Magistrate’s reasons for judgment (all references to ‘CB’ are to the Court Book):

‘The applicant claimed to have experienced a terrible ordeal in China as a Falun Dafa practitioner. He referred to the banning of Falun Gong in 1999. The applicant claimed that on 20 July 2001 he and another practitioner went to "Tianjin government center" to distribute Dafa material, but someone "tempted by financial incentives" reported them (CB p.24). The applicant claimed they were then handcuffed and arrested in a public place where many people took turns beating them for over an hour. He claimed they were then hung up and repeatedly beaten until they lost consciousness. The applicant said they were then sent to the Tianjin Detention Centre for three months and immediately following this incident the applicant went to Shangdong Province to avoid persecution. Ten days later he stated that people from "the 610 Office" in Tianjin tracked him down and collaborated with the local police to monitor him. On 30 May 2003 the applicant claimed he was reported for practising Dafa exercises and arrested by people from "the 610 Office" and again put into the Tianjin Detention Centre for two months (CB p.24).

In September 2003 the applicant claimed that he was brutally beaten by police at his home and his family were unable to stop them. He stated that three hours after the police had left his home he was caught when he went out and beaten at the side of the road (CB p.24). The applicant claimed he suffered many injuries and bled severely from the attack (CB p.25). The applicant claimed his family sent him to hospital and he recovered one month later (CB p.25). He claimed that if he still lived in "his city" that he would face further punishment from the government. The applicant stated that he sold all of his belongings to raise money to bribe a powerful government official to issue him with a passport and visa to Australia (CB p.25).’

3 The appellant did not attend the hearing before the Tribunal scheduled for 25 June 2004 and the Tribunal proceeded pursuant to s 426A(1) of the Migration Act 1958 (Cth) (‘the Act’) to make its decision without taking further action to enable the appellant to appear before it. His Honour carefully considered the invitation sent by the Tribunal on 21 May 2004 and found that the Tribunal complied with ss 425 and 425A of the Act. His Honour also considered that the Tribunal had correctly proceeded in accordance with s 426A(1) to make its decision without taking any further action to allow the appellant to appear before it.

4 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention if he was forced to return to China. Referring to information provided by the appellant in his application for a protection visa, the Tribunal found that the appellant’s ‘claims [were] unclear in some respects, some claims lack[ed] useful details and some [were] inconsistent’. In particular it pointed to the absence of details provided about his practise of Falun Dafa; the lack of reasons provided by the appellant for his stated fear of arrest upon return to China; the lack of reasons provided (or suggested) for why the police may have gone to his home in September 2003 to beat him; the appellant’s claim that he had to sell all of his possessions to bribe a high level official to obtain a passport which conflicted with his evidence that he had obtained a passport without difficulty; the fact that the appellant left China legally, which tends to suggest that he was not a person the authorities took an interest in, and finally the apparent inconsistency between his behaviour in early March 2004 in returning, briefly to China, before returning to Australia, with his claim that he feared returning to China because he would be arrested and persecuted.

5 In his application for review of that decision to the Federal Magistrates Court, the appellant set out the following grounds (read literally):

‘1. I am a practitioner of Falun Gong which is a particular social group.

2. I was arrested by Chinese Government because I am a Falun Gong practitioner.

3. I face a risk of being [jailed] if I go back to China – my original country.’

Lloyd-Jones FM recorded at [18] of his reasons for judgment that the appellant declined an invitation to participate in the free Pilot RRT Legal Advice Scheme (NSW).

6 The Federal Magistrate could not identify any jurisdictional error in the Tribunal’s reasons and found that its findings were reasonably open to it.

7 The appellant’s notice of appeal states two purported grounds, and his affidavit states three, each of which read similarly to those stated in his application to the Federal Magistrates Court as follows:

‘1. I face a risk of being jailed if I return to China.

2. My fear is well-founded, I was prosecuted by Chinese Government because I am a Falun Gong practitioner.’

The affidavit is in the following terms:

‘1. I am a Falun Gong practitioner.

2. I face a risk of being jailed if I return to China.

3. I was prosecuted by the Chinese Government.’

8 As counsel for the Minister contended in her written submissions, those grounds merely restate the appellant’s factual claims which he made to the Tribunal. At their highest they are an attempt to seek review of the Tribunal’s decision on the merits, which as I explained to the appellant during today’s hearing, is not available in this Court. When asked the appellant was unable to identify any source of error in the Federal Magistrate’s reasons, and he merely reiterated his claims to fear persecution if he returned to China.

9 I have considered the reasons for decision of the Tribunal and the Federal Magistrate’s judgment and have been unable to identify any error in either of them. Given the absence of any jurisdictional error in the Tribunal’s decision, the appeal must be dismissed and I order the appellant to pay the Minister’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 28 July 2005

The appellant appeared in person
Counsel for the Respondent:	S McNaughton
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	28 July 2005
Date of Judgment:	28 July 2005