SZBCM v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCM v MINISTER FOR IMMIGRATION [2004] FMCA 985

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the RRT overlooked a relevant consideration – whether the RRT decision was unreasonable – whether the RRT proceeding was fair – whether there was a constructive failure to exercise jurisdiction – no reviewable error found – application dismissed.

Appellant S395/2002 v Minister of Immigration (2003) 203 ALR 112
Minister for Immigration v Yusuf (2001) 206 CLR 323

Applicant: SZBCM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1520 of 2003

Delivered on: 15 December 2004

Delivered at: Sydney

Hearing date: 15 December 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr J D Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1520 of 2003

SZBCM

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The decision was made on 11 June 2003 and handed down on 8 July 2003.  The RRT affirmed a decision of the Minister's delegate not to grant the applicant a protection visa.  The applicant is from China.  He claimed a protection visa on the basis of his practice of Falun Gong.  I adopt by way of background paragraphs 2 to 8 of written submissions prepared by Mr Smith for the Minister:

   The applicant, a citizen of China who arrived in Australia on 3 April 2002, applied for a protection visa on 15 April 2002.  On 30 May 2002 a delegate of the respondent refused to grant the applicant a visa and on 7 June 2002 the applicant applied to the RRT for review of that decision.

   The applicant was invited to give oral evidence at a hearing to be held by the RRT on 10 June 2003. The applicant indicated in writing that he wished to attend such a hearing; however he did not attend and the RRT handed down its decision affirming the decision of the delegate on 8 July 2003.

   The applicant claimed that he feared harm because of his belief and involvement in Falun Gong.

   RRT’s Decision

   The RRT found that the applicant was not a genuine Falun Gong practitioner. That effectively removed the entire basis for the applicant’s claims to be a refugee and entitled the RRT, without more, to affirm the decision under review.

   However, the RRT went on to consider other factual matters raised by the applicant, including his involvement in a group which the applicant claimed was organising protests against the government’s attitude to Falun Gong. Amongst the reasons for rejecting this particular claim was that the applicant said that the group was…