SZFQS v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQS v MINISTER FOR IMMIGRATION [2005] FMCA 715

MIGRATION – RRT decision – Chinese Falun Gong practitioner claimed torture in forced labour camp – did not attend Tribunal hearing – no error found.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.425A, 426A, 426A(1), 441A(4), 441C(4), 483A, Part 8
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZFQS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG316 of 2005

Judgment of: Smith FM

Hearing date: 19 May 2005

Delivered at: Sydney

Delivered on: 19 May 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms S Harris

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the Respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG316 of 2005

SZFQS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 December 2004 and handed down on 5 January 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.

2. Section 483A of the Migration Act gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, the relevant jurisdiction is given by s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.

3. In the present case the applicant arrived in Australia from China in May 2004 and on 13 May 2004 applied for a protection visa, assisted by a migration agent.  Attached to his application was a short statement in which he made claims for protection as a refugee.  He said that before coming to Australia he was a “genuine Falun Gong practitioner” and had started practising Falun Gong in 1997.  He referred to the commencement of persecution of practitioners of Falun Gong by the Chinese authorities, and said:  “when the persecution started, I clarified the truth to others about Falun Gong, and was arrested and illegally sentenced to two years in a forced labour camp”. 

4. He then described in one paragraph “the brutalities I experienced in the labor camp”.  These…