SZFLM v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFLM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong member – applicant declining hearing invitation – RRT sending applicant an incomplete copy of its reasons – non compliance with s.430B(6) of the Migration Act 1958 (Cth) – whether that non compliance constitutes a jurisdiction error considered.

Migration Act 1958 (Cth), ss.430, 430B

SAAP v Minister for Immigration (2005) 215 ALR 162
SZICO v Minister for Immigration & Anor [2006] FMCA 435
SZIVA v Minister for Immigration [2006] FMCA 1494
WACB v Minister for Immigration (2004) 210 ALR 190

Applicant: SZFLM

First Respondent: MINISTER FOR IMMIGRATION
AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG78 of 2005

Judgment of: Driver FM

Hearing date: 17 October 2006

Date of last submissions: 8 November 2006

Delivered at: Sydney

Delivered on: 22 February 2007

REPRESENTATION

The applicant appeared in person

Counsel for the Respondents: Ms R Pepper

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Court directs that the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG78 of 2005

SZFLM

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 16 December 2004.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  I adopt the following statement of background facts relating to the applicant’s protection visa claims and the Tribunal decision on them from the Minister’s outline of written submissions filed on 11 October 2006, with necessary amendments.

2. The applicant is a citizen of China, he arrived in Australia on 14 September 2004.  On 21 September 2004, he lodged an application for a visa with the Minister’s Department (“the Department”) under the Migration Act1958 (Cth) (“the Migration Act”). On 25 October 2004 he applied to the Tribunal for a review of that decision (court book, pages 45-48).

3. The applicant claims persecution on the ground of his religion.  In short, the applicant claimed to fear persecution by the Chinese government because he was a member of Falun Gong. The applicant’s claims are that (court book, page 35):

   a)he was the Chief of the Price Bureau and became a practitioner of Falun Gong in 1998;

   b)because the organisation was banned in 1999, he had to hide the fact that he practised Falun Gong;

   c)he continued to practise however, and involved other members of his work place;

   d)in March 2004 whilst he was practising, the police arrested 15 members of the group and some were mistreated.  With the help of…