SZECV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 379 (22 March 2005)

Last Updated: 18 April 2005

FEDERAL COURT OF AUSTRALIA

SZECV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 379

SZECV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD208 OF 2005



EMMETT J
22 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD208 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZECV APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	22 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. the appellant pay the respondent’s costs in the sum of $2,000.





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	NSD208 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZECV APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	22 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant claims to be a citizen of the People’s Republic of China. He arrived in Australia on 10 March 2004. On 18 March 2004, the appellant lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 2 April 2004, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 3 May 2004, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 10 June 2004, the Tribunal affirmed the decision not to grant a protection visa. The Tribunal published its reasons on 5 July 2004.

2 On 4 August 2004, the appellant commenced a proceeding in the Federal Magistrate’s Court, seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. The only grounds specified in the application were as follows:

‘1. I am a member of a particular social group - Falun Gong in PR China. I was tortured by the Chinese Government when I was in China.

2. I fear persecution because I am a Falun Gong practitioner and the fear is well-founded.’

3 Thus, no basis for review was disclosed. On 22 December 2004, the Federal Magistrates Court dismissed the application with costs. On 15 February 2005, the appellant filed a notice of appeal to this court. No grounds that are capable of acceptance by the Court as a ground of appeal were disclosed. The grounds stated in the notice of appeal were as follows:

‘I am a true Falun Gong practitioner. I would be prosecuted and tortured if I return to China because I believe in Falun Dafa and practice Falun Gong. I was arrested and was being jailed in China by Chinese authorities because I practiced Falun Gong.’

4 The appellant, when invited to address the court on the hearing of the appeal, indicated that he wanted to stay in Australia and have a peaceful life. The appellant was not represented by any legal practitioner, but was assisted by an interpreter.

5 The reasons of the Tribunal indicate that the appellant claimed to have commenced practising Falun Gong in October 1997. He claimed that he was detained in August 2003 and was tortured. He said he escaped from hospital with the help of a doctor and got a passport to come to Australia.

6 The appellant’s passport was issued in late September 2003, and showed that he travelled to Malaysia in late 2003 and returned to China before coming to Australia. The reasons of the Tribunal indicate that the Tribunal wrote to the appellant, informing him that it was unable to make a favourable decision on the material before it. The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 12 May 2004. A copy of the Tribunal’s letter was sent both to the appellant’s postal address and to his home address. While the former was returned to sender, the latter was not.

7 The Tribunal’s reasons record that the usual checks for a ‘no reply’ to a hearing invitation were completed by the Tribunal’s staff, although the details of those checks are not disclosed. The appellant did not appear before the Tribunal on the day and at the time and place notified to him. There has been no complaint by the appellant that he was not notified of the proposed hearing. The Tribunal considered that, in the absence of evidence of the appellant's involvement in the Falun Gong in Australia, where he is free to practise, the Tribunal was not satisfied that he is a Falun Gong practitioner.

8 The Tribunal observed that the appellant’s claims of being tortured are serious. However, the Tribunal was not satisfied, on the evidence before it, that the appellant had been mistreated as he claimed. In the absence of evidence to support the claim, or attendance at the offered hearing to adduce further evidence in support of the claim, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention.

9 The reasons of the Federal Magistrates Court record that, when the appellant was invited to make oral submissions, his submissions were limited to making a brief statement that he was a Falun Gong practitioner and that he had been arrested and tortured by government officials when in China. The reasons of the Federal Magistrates Court also record that the appellant did not avail himself of the opportunity to participate in the free independent legal advice scheme and failed to comply with directions to file an amended application supported by affidavit evidence.

10 Lloyd-Jones FM concluded that no error on the part of the Tribunal had been shown. His Honour considered that a fair reading of the Tribunal’s decision demonstrated that it was faced with the minimum of information contained in the original application, unsupported by any further written or oral submissions. His Honour considered that there was no material that indicated that the Tribunal’s decision-making process was flawed in any way that would give rise to jurisdictional error.

11 There was clearly no error on the part of the Federal Magistrates Court. The appeal should be dismissed with costs, which, in the interests of saving further expense, I will fix in the sum of $2,000.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 18 April 2005

The Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 March 2005
Date of Judgment:	22 March 2005