SZBXL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 194 (4 March 2005)

Last Updated: 17 March 2005

FEDERAL COURT OF AUSTRALIA

SZBXL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 194

MIGRATION – appeal from interlocutory decision of Federal Magistrate – no error of law or principle by Tribunal or Federal Magistrate – leave to appeal refused























SZBXL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1710 OF 2004


TAMBERLIN J
SYDNEY
4 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1710 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZBXL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	4 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellant pay the costs of the respondent.






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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1710 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZBXL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	4 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In this matter, the appellant has filed a Notice of Appeal from the dismissal of her application for review by a Federal Magistrate. The decision of the Federal Magistrate was an interlocutory decision and, therefore, it is necessary for the appellant to persuade the Court that the decision of the Magistrate is attended with substantial doubt and, on the assumption that there was an error, that the interests of justice should persuade the Court to grant leave to appeal.

2 The appellant appeared before the Magistrate, however, the Magistrate found that no indication was given to the Court of any grounds that might found an order for review.

3 I have considered the reasons of the Refugee Review Tribunal ("the Tribunal") in this matter and they disclose the following.

4 The appellant is a citizen of the People's Republic of China who arrived in Australia on 17 September 2002 and lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. In a statement accompanying her application for a protection visa, the appellant stated that economic reform in China since the 1980’s had resulted in the formation of a new privileged stratum of the population who abused their power in order to pursue personal benefits. The appellant had felt indignant at this and protested against the Communist Party. She said that she had been detained twice for instigating people to rise against the Communist Government. After she was released from detention for the second time, she was ordered to report to the Public Security Bureau every fortnight.

5 On 22 November, a delegate of the Minister refused to grant her a protection visa. On 24 December 2002, the appellant applied for review of the delegate’s decision.

6 Prior to the hearing before the Tribunal, a letter was written to the appellant informing her that she had a right to appear at the hearing and requesting information as to whether she proposed to appear. The appellant did not appear before the Tribunal. Consequently, the Tribunal was faced with material comprised in Country Information and documents before it without any explanation as to the basis of the case sought to be presented by the appellant in any particular detail. No satisfactory reasons have been placed before this Court on appeal for the appellant’s election or choice not to appear at the hearing before the Tribunal.

7 In the decision of the Tribunal, the member indicated that there were significant matters about which it would have wished to satisfy itself, including clarification of the actual nature of the alleged corruption and why the appellant did not avail herself of various avenues for reporting corruption initially, and after she was first detained, rather than directly confronting her superior. The Tribunal thought there was difficulty with the appellant’s claim to have paid a large sum of money to obtain her passport after she was released in early 2002. The Tribunal found that this was clearly false given that the passport on which the appellant travelled was issued long before this in January 2000.

8 The Tribunal was not satisfied that the appellant's experiences were as claimed. It did not accept that the appellant confronted her superior over corruption and was detained or that she paid a large sum of money for her passport after she was released in early 2002.

9 The Tribunal member also relied on country information which suggested that Chinese authorities generally attempt to act against corruption and extortion by local officials and that persons who take their complaints to the authorities receive appropriate action and protection.

10 It is not the function of this Court on an appeal from a Magistrate, nor for a Federal Court Magistrate on an application for judicial review, to find facts or make a decision concerning the merits of the case except in extreme circumstances. In this case, there is extensive reference to country material in support of the conclusion reached by the Tribunal member and the conclusion reached was open on that material.

11 In the Notice of Appeal the grounds of appeal are framed in the following terms:

"(a) I meet the refugee criteria.

(b) I fear of being prosecuted by the Chinese Government because I belong to a particular social group - Falun Gong.

12 As the Minister's representative pointed out to me, it appears that this was the first time that this claim had been made in relation to the social group Falun Gong. When the matter came on for hearing before me today, the appellant was unable to provide any substantial grounds on which to satisfy the Court that there had been an error in the decision of the Magistrate or of the Refugee Review Tribunal.

13 Having considered the papers and examined the reasons of the Magistrate, and, in particular, the decision of the Tribunal, I am not persuaded that there is any error of law or principle which would warrant the setting aside or modification of either the decision of the Tribunal or of the Magistrate.

14 In these circumstances, the Court is not satisfied that this is a case in which leave to appeal ought to be granted and there is no matter shown which would make it unjust to refuse leave in this case having regard to the material presently before the Court. Accordingly, the order of the Court is that this appeal be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 14 March 2004

The Appellant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	A Carter
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 March 2005
Date of Judgment:	4 March 2005