SZIRJ v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal

[2006] FCA 1575

FEDERAL COURT OF AUSTRALIA

SZIRJ v Minister for Immigration & Multicultural Affairs and Refugee Review Tribunal [2006] FCA 1575

MIGRATION – no point of principle

Federal Magistrates Act 1999 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

SZIRJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1106 OF 2006

TRACEY J
14 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1106 OF 2006

BETWEEN:

SZIRJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	14 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

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 1106 OF 2006

BETWEEN:

SZIRJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	14 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of a Federal Magistrate given on 23 May 2006.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 23 February 2006 and handed down on 14 March 2006, to refuse to grant a protection visa to the applicant. 

2. The applicant is a citizen of the People’s Republic of China (“China”) who claims fear of persecution by reason of her being a Falun Gong practitioner. She entered Australia on 11 October 2005. She claimed that she had been arrested in Beijing in 2000 while demonstrating against the Chinese government’s attitude to Falun Gong.  She also claimed she had protested in Guangzhou where she was arrested and detained for eight days and that, in 2003, her home was raided and she was detained for several months and mistreated while in custody.  She further claimed that she was again detained in 2004 and held until January 2005.

3. The Tribunal did not accept that the applicant was a Falun Gong practitioner because she had very little knowledge about the banning of Falun Gong within China and could not name the exercises undertaken by practitioners.  The Tribunal found that the applicant had fabricated her claims in order to advance her protection visa application; in particular, that photographs of her practising Falun Gong at Darling Harbour were made in order to assist in the success of that application.  Further, the Tribunal held that the applicant would not attract adverse attention, if she were to return to China, for having attended Falun Gong sessions in Australia since she was not a persistent Falun Gong practitioner.

4. The applicant made an application to the Federal Magistrates Court on 12 April 2006. In that application, she claimed that the Tribunal had breached s 424A of the Migration Act 1958 (Cth) (“the Act”) and that the Tribunal had not assessed properly her chance of persecution if she were returned to China. She further claimed that the Tribunal’s satisfaction that she was not a refugee was not founded upon reasoning which provided a rational or logical basis for that belief.

5. On 15 May 2006 the Federal Magistrate dismissed the application (filed on 12 April 2006) because the applicant had not attended at a directions hearing on that day.  The applicant made another application, filed on 18 May 2006, in effect seeking the reinstatement of the show cause application of 12 April 2006.  A hearing of this application was held on 23 May 2006. The appellant attended.

6. The Federal Magistrate found the applicant to be a most unimpressive witness.  The applicant asserted that, on the night before the scheduled hearing on 15 May 2006, she had stayed at a friend’s home in Strathfield and that she did not get to court on time because she had been told by that friend that it would take only half an hour to travel to the central business district of Sydney.  She told the Federal Magistrate that she had travelled in a taxi and that she had paid fifty dollars but did not acquire a receipt.  Later she claimed that she had attempted to telephone the Minister’s solicitor.  However, the Federal Magistrate found that the applicant was not a witness of truth and that she had shown a rather cavalier attitude regarding her attendance at court. She had not advanced a sufficient explanation for her non-attendance on 15 May 2006.  In addition, the Federal Magistrate held that her show cause application did not raise a serious question to be tried and that she had failed before the Tribunal simply because her claims were completely disbelieved.  This finding was based on the applicant’s evidence at the hearing before the Tribunal.

7. On 7 June 2006, the applicant filed an application in this Court for leave to file a notice of appeal from the decision of the Federal Magistrate.  The only ground contained in the draft notice of appeal is that that the Federal Magistrate did not have the power to make a decision or give the judgment in Chambers and without an oral hearing. She claims that there are no provisions within the Federal Magistrates Act 1999 (Cth) or the Federal Magistrates Court Rules 2001 (Cth) authorising this. When the application was called on for hearing the applicant did not appear.

8. The principles to be applied in dealing with an application such as the present are laid down in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

9. In my opinion the learned Magistrate’s decision is not attended with sufficient doubt to warrant its reconsideration by this Court. The decision was not made in chambers. It was made following an oral hearing in open Court on 23 May 2006. Reasons were provided.

10. Accordingly, the application for leave to 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 TRACEY.

Associate:

Dated:        14 November 2006

Counsel for the Applicant:	No Appearance
Counsel for the Respondent:	Ms F Kerr
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 November 2006
Date of Judgment:	14 November 2006