SZDYU v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1864

FEDERAL COURT OF AUSTRALIA

SZDYU v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1864

SZDYU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1175 OF 2005

EDMONDS J
8 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1175 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDYU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

8 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 1175 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDYU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	8 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

EDMONDS J:

1. The appellant is a citizen of the Peoples Republic of China who arrived in Australia on 29 December 2003.  On 27 January 2004 he applied for a protection visa.  On 4 February 2004 a delegate of the Minister refused to grant a protection visa and, on 9 March 2004, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  By letter dated 14 April 2004, the appellant was invited to appear at a hearing before the Tribunal scheduled for 18 May 2004.  The letter was sent to the appellant’s address for service and a copy of the letter was also sent to the home address he had given.

2. In accordance with subs 425A(4) of the Migration Act 1958 (Cth) (‘the Act’), the letter contained a statement of the effect of s 426A of the Act. The appellant did not respond to the Tribunal’s letter of 14 April 2004 and did not attend the hearing. A copy of the letter sent to the appellant’s home address was returned to the Tribunal unclaimed. The Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the appellant to appear before it pursuant to the discretion in subs 426A(1) of the Act. The Tribunal affirmed the decision of the Minister’s delegate on 18 May 2004 and handed down its decision on 8 June 2004.

3. The application seeking judicial review in the Federal Magistrates Court was filed on 30 June 2004.  The application repeated the appellant’s claim made before the Tribunal of persecution in China because of his membership of the Falun Gong social group and that he faced the risk of being jailed if he returned to China.  The application did not identify any jurisdictional error affecting the decision of the Tribunal.  The Federal Magistrate observed that the matters which the appellant sought to agitate before him involved a challenge to the finding of fact made by the Tribunal.  In his Honour’s words: ‘the applicant was inviting the Court to take a different view of the various facts from that of the Tribunal’, something which his Honour further observed, and quite correctly, he had no power to do.

4. The notice of appeal to this Court was filed on 15 July 2005. It does not identify any errors in the decision of the Federal Magistrate but merely restates as grounds the claims he made below and before the Tribunal, as indicated above. Like his Honour below, I am unable to discern any reviewable legal error in the Tribunal’s decision nor in the reasons given by the learned Federal Magistrate in dismissing the appellant’s application. His Honour’s findings in relation to the exercise by the Tribunal of the discretion in subs 426A(1) of the Act were open on the evidence and accorded with relevant authority.

5. The appeal must be dismissed with costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:            20 December 2005

The appellant appeared in person
Counsel for the Respondent:	Mr D Hordan
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	8 December 2005
Date of Judgment:	8 December 2005