SZDQE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 511

FEDERAL COURT OF AUSTRALIA

SZDQE v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 511

SZDQE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 7 OF 2005

STONE J
28 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 7 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDQE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	28 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs in the amount of $3,000.

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	NSD 7 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	28 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate delivered on 22 December 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 31 March 2004 and handed down on 27 April 2004.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China (‘China’).  She arrived in Australia on 28 September 2003 and lodged an application for a protection (class XA) visa on 3 October 2003.  On 10 December 2003, a delegate of the respondent refused to grant a protection visa to the appellant.  On 6 January 2004, the appellant applied for review of that decision in the Tribunal.  The Tribunal immediately wrote to the appellant informing her of the importance of contacting the Tribunal if she changed any of her contact details.

3. On 11 February 2004, the Tribunal again wrote to the appellant advising that it was unable to make a favourable decision on the information presently before it; that the Tribunal had received an identical claim which was relevant as it might suggest that the appellant’s claim had been fabricated; and invited comments by 5 March 2004.  In another letter dated 12 February 2004 the appellant was invited to give oral evidence and present argument at a hearing on 31 March 2004.  Both these letters were sent to the address provided by the appellant in her application for review.  There is no evidence to suggest that she did not receive either of these letters. 

4. The appellant did not attend the hearing of the Tribunal on 31 March 2004 and the Tribunal proceeded to make a decision on the appellant’s application for review pursuant to s 426A of the Migration Act 1958 (Cth).

   THE TRIBUNAL’S REASONS

5. The Tribunal set out the appellant’s claims as made in her protection visa application.  The appellant claimed to have practised Falun Gong since December 1998.  Despite the banning of Falun Gong in 1999, the appellant continued to practise and became a ‘leader of the local area’.  The appellant claimed that on 20 May 2000 she was detained by the authorities and tortured, beaten and denied food and water.  After her release she continued to organise practice sessions and distribute material.  The appellant claimed she would be imprisoned and ‘badly tortured’ if she was forced to return to China. 

6. The Tribunal held that the appellant’s claims were vague and lacking in important details.  The Tribunal also noted that it had received a set of claims identical to those of the appellant and therefore could not be satisfied that the appellant’s claims had not been fabricated.  The Tribunal found that the appellant was given ample opportunity to present the Tribunal with supporting material, however, it noted that the appellant had not provided any evidence supportive of her claims.  The Tribunal formed the view that the appellant was not serious about pursuing her application.  Moreover, the Tribunal was not satisfied that the appellant had suffered any ill-treatment or harm attributable to a Convention reason or that there was a real chance of such treatment occurring in the foreseeable future.  The Tribunal consequently affirmed the decision to refuse the appellant a protection visa.

   FEDERAL MAGISTRATE’S DECISION

7. On 24 May 2004, the appellant filed an application for review under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court. The conduct of the proceedings in the Federal Magistrates Court were summarised by the Federal Magistrate at [16] of his reasons:

   ‘…the applicant attended both a directions hearing and a non-compliance hearing and at both hearings was instructed to file submissions in support of her application.  It is noted the applicant did file additional information, presumably in response to the order to file an amended application.  This additional information did not contain any new material that was not contained in the original application.  When invited to make any oral submissions from the bar table, the applicant declined.’

8. The Federal Magistrate continued at [21] stating that:

   ‘When I reviewed the decision of the Tribunal, it was immediately apparent that it was faced with the same problem of a very limited claim which was not supported or substantiated in any respect by the applicant despite invitations to do so.  I have been unable to identify any ground that the Tribunal has committed any jurisdictional error.’

9. The Federal Magistrate dismissed the application.

   THIS APPEAL

10. The appellant filed a notice of appeal in this Court on 4 January 2005.  The grounds of appeal are as follows:

    ‘2a) I was persecuted by the Chinese government because I belong to a particular social group – Falun Gong.

    b)    If I go back to China I would be jailed by the Chinese government.’

11. On 8 February 2005, I made orders giving the appellant leave to file and serve an amended notice of appeal by 29 March 2005.  The appellant did not take this opportunity.  I further ordered that the appellant file and serve an outline of submissions on or before 5 clear working days before the hearing.  The appellant has failed to comply with this order.  At the hearing of her appeal the appellant declined to make submissions other than to say that it was unfair that the Tribunal and the Federal Magistrate did not believe her claim to be a Falun Gong practitioner. 

12. In my opinion, the Federal Magistrate was correct to dismiss the appellant’s application.  The appellant has been unable, before both the Federal Magistrate and this Court, to point to any error in the Tribunal’s decision.  Having reviewed the reasons of the Tribunal, I am of the view that they do not reveal any jurisdictional error.

13. Consequently, the appeal must be dismissed with costs.  The respondent seeks costs in the amount of $3,000, which I consider is not unreasonable. 

I certify that the preceding thirteen  (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             28 April 2005

The appellant appeared in person
Counsel for the Respondent:	Ms S McNaughton
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	28 April 2005
Date of Judgment:	28 April 2005