SZFCL v MIMIA

[2006] HCATrans 104

[2006] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S409 of 2005

B e t w e e n -

SZFCL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2006, AT 9.38 AM

Copyright in the High Court of Australia

KIRBY J:  

Background to the disposition

The applicant is a national of Hong Kong who arrived in Australia on 21 April 2004.  On 27 May 2004 she applied for a protection visa, which was refused by a delegate of the respondent Minister on 28 May 2004.  The applicant claimed that since 1997 the political system and economic situation in Hong Kong had changed dramatically and that she had not been able to find a job.  She stated that the people of Hong Kong no longer enjoyed political freedom.  She claimed that, when she arrived in Hong Kong from mainland China, she often returned to China to participate in Falun Gong activities.  She claimed that, as a result of this, she had been placed on a “black list” and that it was no longer safe for her to live in Hong Kong.  She claimed to have been arrested in China because of her Falun Gong activities. 

The Refugee Review Tribunal (“RRT”) pointed out to the applicant that fears for her personal security and economic wellbeing did not give rise to protection obligations under the Convention.  The applicant said that she was a Falun Gong practitioner but had not engaged in any Falun Gong activities between 1996 to 2004.  The Tribunal put to the applicant that Hong Kong is a special administrative region in China and differs significantly from the Peoples’ Republic of China in terms of religious freedom.  It was noted that Hong Kong permits the practice of Falun Gong beliefs.  The RRT found that the applicant’s fears of persecution on returning to Hong Kong because of her Falun Gong beliefs were not well‑founded.  The RRT also noted the applicant’s claim of fear of persecution for political reasons but that she had provided no evidence in support of that claim.

The applicant appealed to the Federal Magistrates Court and raised three grounds of appeal.  She claimed that the RRT had made a jurisdictional error, in that it had failed to exercise its jurisdiction properly, and that it misunderstood the situation in Hong Kong.  The applicant was unrepresented before the Federal Magistrate.  She subsequently claimed that the RRT had exhibited bias towards her.  The Federal Magistrate (Scarlett FM) noted that the thrust of the applicant’s application seemed to be challenges to the findings of fact made by the RRT.  The Federal Magistrate found that there was no evidence to show that the applicant had been treated unfairly during the hearing.  Nor was there anything in the record to indicate that the procedure adopted by the Tribunal was other than in accordance with the law.  No evidence was pointed to by the applicant which supported her other grounds of appeal.  The application was rejected.

On appeal to the Federal Court, the applicant repeated her claim that the RRT had committed a jurisdictional error and failed to assess the risk of her persecution in Hong Kong.  Conti J found that the Federal Magistrate had correctly rejected the claim that the RRT was somehow under an obligation to rebut the applicant’s claims.  He held that the applicant had failed to point to any feature of the case that would demonstrate jurisdictional or legal error.  Nor was the applicant able to point to any information which the RRT ought to have taken into account, which it had not.

In this Court, the applicant raises four grounds of appeal in her draft notice of appeal. These repeat the foregoing claims.  They include generalised claims of jurisdictional error and bias but they do not provide any particulars of those claims.  They also repeat her assertion that, if she returns to Hong Kong, she would face persecution from the Chinese authorities.

Disposition of the application

This application does not raise any questions of law still less ones of general public importance.  The RRT found that the applicant was not able to point to any fears which would amount to well-founded fear of persecution for a Convention reason.  No point of principle is raised by the application.  There is nothing to suggest that the court below erred in rejecting the applicant’s appeal.  There is no evidence of bias exhibited by the RRT.  Nor is there any evidence which would suggest a failure to comply with the requirements of natural justice.

In these circumstances, no foundation has been shown for the grant of special leave by this Court.  The application should be refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.43 AM THE MATTER WAS CONCLUDED