LZYKZ v Minister for Immigration and Citizenship
[2011] FCA 1021
•31 August 2011
FEDERAL COURT OF AUSTRALIA
LZYKZ v Minister for Immigration and Citizenship [2011] FCA 1021
Citation: LZYKZ v Minister for Immigration and Citizenship [2011] FCA 1021 Appeal from: LZYKZ v Minister for Immigration and Anor [2011] FMCA 348 Parties: LZYKZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: TAD 29 of 2011 Judge: MARSHALL J Date of judgment: 31 August 2011 Date of hearing: 31 August 2011 Place: Melbourne (via video link to Hobart) Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 Counsel for the Appellant: The Appellant appeared in person Counsel for the First and Second Respondents: Mr D Wilson Solicitor for the First and Second Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
TAD 29 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LZYKZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
31 AUGUST 2011
WHERE MADE:
MELBOURNE (VIA VIDEO LINK TO HOBART)
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
TAD 29 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LZYKZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE:
31 AUGUST 2011
PLACE:
MELBOURNE (VIA VIDEO LINK TO HOBART)
REASONS FOR JUDGMENT
The appellant is a citizen of the People’s Republic of China. She appeals from a judgment of the Federal Magistrates Court which dismissed her application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the first respondent Minister to refuse the appellant a protection visa.
In her claim for refugee status the appellant said she feared persecution if returned to China, in the reasonably foreseeable future, by reason of her being a Falun Gong practitioner.
The delegate
The appellant entered Australia as the holder of a visitor’s visa which was valid until 20 July 2010. On 13 July 2010 she applied for a protection visa. A delegate of the Minister invited her to attend an interview to take place on 16 September 2010. The appellant failed, without explanation, to attend the interview. The delegate treated the appellant’s claim as one of fearing persecution on the ground of political opinion for practising Falun Gong in China. The delegate noted that the Falun Gong movement does not consider itself to be a religion. She relied on country information in assessing Falun Gong as providing a challenge to the political authority of the Chinese Government.
The delegate was not satisfied that the appellant had a well founded fear of persecution. She said the appellant’s claims were vague and insufficient to allow her to be satisfied that the appellant had a real chance of being persecuted if returned to China. The delegate observed that the appellant had entered Australia using her own, valid passport and was of no interest to the Chinese authorities.
The Tribunal
The appellant sought a merits review of the delegate’s decision. The Tribunal invited the appellant to give evidence before it and present any submissions to it at a hearing scheduled for 6 January 2011. The appellant did not respond to the hearing invitation letter and failed to appear, without explanation, at the scheduled hearing. The Tribunal made its decision on review of the material which was before the delegate (which had not been supplemented on review), without taking any further action to enable the appellant to appear before the Tribunal. It was entitled to take this approach by s 426A of the Migration Act 1958 (Cth) (“the Act”).
The Tribunal discussed the history of Falun Gong and noted the Chinese Government banned its practice in October 1999, after a “crackdown” against it which commenced in July 1999. The Tribunal considered country information which revealed that Chinese citizens identified by the Government as Falun Gong followers have difficulty leaving China legally.
The Tribunal found that the appellant was a citizen of the People’s Republic of China. It echoed the delegate’s views about the appellant’s claims being vague and untested. It also observed that the appellant left China on her own valid passport and that there was no evidence the Chinese authorities had shown any interest in her. The Tribunal also found that there was no evidence before it to satisfy it that the appellant was an adherent of Falun Gong. It was not satisfied that the appellant was entitled to a protection visa.
The Federal Magistrates Court
The appellant sought judicial review of the Tribunal’s decision in the court below. She relied on three grounds. First, she claimed the Tribunal failed to consider that she practicised Falun Gong in Australia, thereby giving rise to an unconsidered sur place claim. Second, the appellant assessed that the Tribunal failed to deal with “an indice” of her claim. Last, the appellant claimed that the Tribunal made no findings “about whether or not, if it did happen it gave rise to a real chance of persecution”.
The Federal Magistrate observed that the appellant did not comply with orders made by Caporale R for the filing and serving of contentions of fact and law. His Honour considered the three grounds of review and rejected each one. He observed that there was no material before the Tribunal about the appellant’s practice of Falun Gong in Australia. He considered the second ground to be unarticulated as no particular “integer” was identified. He observed to the effect that the final ground did not make sense.
The Federal Magistrates Court dismissed the application before it, with costs.
On Appeal
The appellant failed to comply with an order of the Court that she file and serve an outline of submissions in support of her appeal. When the matter was called on earlier this morning, she stated that she had no submissions to make. Accordingly the Court is left to consider her appeal grounds as stated in her notice of appeal.
The notice of appeal raised four grounds. They are:
1.The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.
2.[The Court below] failed to consider the applicant has [practised] Falun Gong in Australia, which gave rise to a sur place claim.
3.[The Court below] failed to consider [the Tribunal] had not deal [sic] with an indice of the [appellant’s] claim.
4.The Second Respondent made no finding about whether or not, if it did happen, it gave rise to a real chance of persecution.
Grounds two to four echo grounds relied on in the Court below. For the reasons given by his Honour at [13] to [15] of his judgment as summarised at [8] above, the appeal on these grounds is devoid of merit.
The first ground is a general ground of appeal which has not been particularised. It is an unsupported assertion and is rejected.
Order
As the appeal is without any merit it must be dismissed with costs. The orders of the Court are:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 31 August 2011
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