HZAAD v Minister for Immigration and Citizenship

[2012] HCASL 38

HZAAD
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 38
H5/2011

1. The applicant is a citizen of the People's Republic of China (Macao Special Administrative Region) ("Macao").  She arrived in Australia on 20 September 2010 as the holder of a visitor visa.  On 13 October 2010 she lodged an application for a protection visa.  She claimed to fear arrest should she return to Macao because of her practice of Falun Gong. 

2. The applicant failed to respond to an invitation to attend an interview with an officer of the Department of Immigration and Citizenship.  In December 2010, a delegate of the Minister refused the application.

3. The applicant sought merits review of the delegate's decision before the Refugee Review Tribunal ("the Tribunal").  She did not appear before the Tribunal on the day appointed for the hearing.  The Tribunal decided to determine the review without taking any further action to enable the applicant to appear before it[1]. 

   [1]Migration Act 1958 (Cth), s 426A.

4. The Tribunal was not satisfied that the applicant is a person to whom Australia owes protection obligations.  It did not accept that she is a practitioner of Falun Gong.  In any event, it accepted independent country information which indicated that there are no restrictions on the practice of Falun Gong in Macao.  For these reasons, it concluded that the applicant would not face a real chance of persecution in Macao by reason of any involvement in Falun Gong.  The Tribunal affirmed the delegate's decision.

5. An application for judicial review was dismissed by the Federal Magistrates Court (Riley FM).  

6. The applicant appealed to the Federal Court of Australia (Marshall J). She did not appear when the appeal was called on. An order was made dismissing the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for failure to appear.

7. The applicant seeks special leave to appeal from the orders of the Federal Court.  The application is misconceived.  There has been no determination of her appeal on the merits.  The applicant has not taken such steps as may be available to her to have the order of dismissal set aside. 

8. The application is dismissed.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
29 February 2012 V.M. Bell