SZFSX v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFSX v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1362

MIGRATION – RRT – Chinese claimed persecution under ‘one child policy’ and due to political activities – Tribunal found no serious harm and disbelieved political claims – no error found.

Migration Act 1958 (Cth), ss.474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: SZFSX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 423 of 2005

Judgment of: Smith FM

Hearing date: 30 August 2005

Delivered at: Sydney

Delivered on: 30 August 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms L Clegg

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

2. The application is dismissed.

3. The applicant must pay the first respondent’s costs in the sum of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 423 of 2005

SZFSX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review remedies in relation to a decision of the Refugee Review Tribunal dated 22 December 2004 and handed down on 19 January 2005. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.

2. The Court's jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction includes powers under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa nor for any other permission to stay in Australia.

3. The present applicant arrived in Australia in June 2004, and on

   
   

   24 June 2004 applied for a protection visa.  A statement attached to his application referred to a family history, in which his grandfather had been sentenced to death in 1957 due to his political opinions against the Chinese Communist Party.  This continued:

   From 1957 to 1976, my father was often forced to stand on the stage, putting a high hat on his head for criticism and beaten by political team of the Chinese Communist Party.  Since 1977, as a landlord's son I was often persecuted, looked down by people around.  I could not enjoy my normal life in China.  After getting married in China, my…