SZHYJ v Minister for Immigration and Multicultural Affairs

[2006] FCA 1161

FEDERAL COURT OF AUSTRALIA

SZHYJ v Minister for Immigration and Multicultural Affairs [2006] FCA 1161

SZHYJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1141 OF 2006

BESANKO J
8 AUGUST 2006
SYDNEY 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1141 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHYJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant pay the first respondent’s costs, fixed in the sum of $1200.

3.The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.

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 1141 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHYJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of a Federal Magistrate.  The applicant has filed an affidavit with her application, as required by the rules, claiming that she has been prosecuted by the Chinese authorities because she is a Falun Gong practitioner; that she faces a risk of being prosecuted if she returns to China; and that she has no reason to go back to China.

2. The decision of the Magistrate was delivered on 23 May 2006. The Magistrate had before him an application by the applicant under s 476 of the Migration Act 1958 (Cth). That application was made in respect of a decision of the Refugee Review Tribunal handed down on 22 November 2005. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing to grant a protection visa to the applicant.

3. The first court date within the provisions of the Federal Magistrates Court Rules was 25 January 2006. On that occasion, the applicant attended in person with the assistance of an interpreter. The Magistrate made orders giving the applicant an opportunity to receive legal advice after obtaining a bundle of relevant documents and to file an amended application and additional affidavits by 18 April 2006.

4. The application came before the Magistrate on 23 May 2006 and he considered whether it should be dismissed under r 44.12 of the Federal Magistrates Court Rules. The Magistrate reviewed the course the matter had taken before the Tribunal. He noted that the application for a protection visa was supported only by a brief typed statement in which the applicant claimed that she was a Falun Gong practitioner in China. He noted that the applicant claimed that she had avoided arrest and come to Australia after being warned that the police were collecting information ‘to demonstrate I was a practitioner of Falun Gong’. He noted that very few details of these claims were contained in the statement and no supporting material was presented to the delegate or, subsequently, to the Tribunal.

5. The Magistrate noted that the Tribunal sent a letter to the applicant on 20 September 2005 wherein it advised the applicant that it had considered the material before it in relation to her application but was unable to make a decision in her favour on this information alone.  The Tribunal invited the applicant to attend a proposed hearing on 20 October 2005 to give oral evidence and present arguments in support of her claims.  The Tribunal also advised the applicant that if she did not attend the hearing, and the hearing was not postponed, the Tribunal could make a decision on her case without further notice. 

6. The applicant did not attend the proposed hearing and no contact was made to the Tribunal explaining her absence.  The Tribunal decided to proceed to determine the application for review.  The Magistrate said that it was not arguable that, in doing so, the Tribunal committed a jurisdictional error.  The Magistrate considered the Tribunal’s reasons for affirming the decision not to grant a protection visa to the applicant.  He noted that the Tribunal said the following: 

   ‘As I find the applicant has not provided sufficient evidence to support her assertion that she is a Falun Gong practitioner I am not satisfied that she is a genuine and sincere practitioner of Falun Gong as claimed.  Accordingly, I cannot accept the applicant would have a well-founded fear of persecution for a Convention reason should she return to the PRC.’

7. The Magistrate said that this process of reasoning did not involve jurisdictional error.  The test on an application for leave to appeal is well-known and I will not repeat it: Decor Corporation Pty Limited v Dart Industries Incorporated [1991] 33 FCR 397 at 399-400. I do not think that it is arguable that the decision of the Magistrate is wrong. In those circumstances, the application for leave to appeal is dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        9 October 2006

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006