SZHFN v Minister for Immigration and Multicultural Affairs

[2006] FCA 1417

FEDERAL COURT OF AUSTRALIA

SZHFN v Minister for Immigration and Multicultural Affairs
[2006] FCA 1417

MIGRATION – application for protection visa – refused – application for review by Refugee Review Tribunal  - refused – application for judicial review by Federal Magistrates Court  - dismissed – appeal – no jurisdictional error – appeal dismissed

Migration Act 1958 (Cth), s 426A(1).

SZHFN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 869 OF 2006

MARSHALL J
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 869 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHFN
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	1 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent on the notice of appeal is amended to read ‘Minister for Immigration and Multicultural Affairs’.

2.The appeal is dismissed.

3.The appellant pay the first respondent’s costs of the appeal, fixed at $2500.

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 869 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHFN
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	1 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the judgment of Federal Magistrate Smith in which his application for judicial review of a decision of the Refugee Review Tribunal was rejected.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse the appellant a protection visa.

2. The appellant is a citizen of the Republic of China, also known as Taiwan.  He claimed to fear persecution if returned to Taiwan in the reasonably foreseeable future by reason of his religion and his membership of a particular social group. He said that his business activities often took him to the People’s Republic of China. On one occasion he claimed that he was arrested there and allowed to return to Taiwan on the condition that he collected information for the Chinese secret service on Falun Gong practices. He said that the information he provided resulted in about ten Falun Gong leaders from Taiwan being refused entry to China. He also said that he tried to stop his spying activities but Chinese authorities threatened the quality of life of his sister who resides in mainland China.

3. The appellant’s statement in support of his application for refugee status did not clearly articulate which religion he observed, apart from saying that he liked Falun Gong. He also did not specify the alleged social group he belonged to or what would happen to him if he returned to Taiwan.

4. The Tribunal invited the appellant to a hearing so that he could give oral evidence in support of his application. The appellant failed to attend the hearing. The Tribunal then determined the matter pursuant to s 426A(1) of the Migration Act 1958 (Cth) without taking any further action to enable the appellant to appear before it.

5. The Tribunal found the appellant’s claims to be lacking in detail. It said that it was unable to make any findings regarding his claims and could not be satisfied that he had a well-founded fear of persecution for a Convention reason.

6. The appellant raised the following issues before the Court below:

   ·The delegate did not properly process his application;

   ·The Tribunal did not consider all his evidence;

   ·The Tribunal made unspecified jurisdictional errors; and

   ·He had difficulty obtaining evidence from Taiwan and China.

7. Federal Magistrate Smith held, correctly, that none of the grounds raised disclosed any jurisdictional error in the Tribunal’s decision or process.

8. In his notice of appeal to this Court, the appellant does not refer to any alleged error in the reasons of Smith FM. The notice of appeal refers to alleged errors made by the Tribunal again without any specificity.

9. The appeal is unarguable. The Tribunal determined the matter under s 426A(1) as it was entitled to do in the absence of the appellant’s response to a hearing invitation. Its decision is free of jurisdictional error. The appellant did not provide it with any information which would justify it even considering the possible grant of a protection visa.

1. The appeal is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       1 November 2006

The appellant represented himself.
Counsel for the first respondent:	Mr R White
Solicitor for the first respondent:	Sparke Helmore
Date of Hearing:	1 November 2006
Date of Judgment:	1 November 2006