SZKCL v Minister for Immigration and Citizenship

[2007] FCA 969

FEDERAL COURT OF AUSTRALIA

SZKCL v Minister for Immigration & Citizenship [2007] FCA 969

Federal Magistrate Court Rules 2001, rule 44.13

SZKCL v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD374 OF 2007

EMMETT J
8 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD374 OF 2007

BETWEEN:

SZKCL
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	8 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant pay the First Respondent’s Costs in the sum of $800.

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	NSD374 OF 2007

BETWEEN:

SZKCL
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

8 MAY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review on the basis that the application disclosed no arguable case.  The application was brought in respect of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent not to grant a Protection (Class XA) visa to the applicant.

2. The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 24 July 2006.  She applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 25 August 2006. The Minister’s delegate decided to refuse to grant a visa on 2 September 2006 and the applicant applied to the Tribunal on 5 October 2006 for review of the delegate’s decision.

3. The Tribunal affirmed the decision not to grant a protection visa on 29 November 2006.  On 30 January 2007 the applicant commenced a proceeding in the Federal Magistrates Court seeking constitutional writ relief in respect of the Tribunal’s decision.  The grounds were uninformative and were in the following terms:

   “(1)The decision involved an error of law in that there was no evidence or other materials to justify the making of the decision.

   (2)There is no sufficient evidence to conclude that I was not ever involved in Falun Gong when I was in China.

   (3)I believe I am a person to whom Australia has protection obligations under the Refugees Convention.”

4. The Tribunal noted the applicant’s claims to be entitled to refugee status on the basis of involvement with Falun Gong.  In particular, she claimed that, after her involvement in a demonstration rally in Beijing in 1997, the police arrested her and deported her.  The Tribunal was not satisfied that the applicant is or ever was involved in Falun Gong.  It was not satisfied that the applicant had been involved in a demonstration in 1997 and was arrested as she claimed.  The Tribunal set out its reasons for those conclusions when it published its decision.  The Tribunal considered the applicant’s evidence to be unconvincing.  When asked about her involvement in Falun Gong, the applicant provided scant detail, notwithstanding that she claimed to have practised daily. 

5. The Federal Magistrates Court dismissed the proceeding under rule 44.13 of the Federal Magistrates Court Rules 2001 which provide that at the hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.  The application made no submissions in support of the application at the hearing to show cause. 

6. When the matter was called on for hearing today there was no appearance for the applicant.  I have seen evidence that the applicant was notified by the Registry by letter of 5 April 2007 and by the Minister’s solicitors on 1 May 2007 of the hearing listed for today.  The proposed notice of appeal filed in support of the application for leave simply asserts that the Tribunal failed to carry out its statutory duty, as the Tribunal could not demonstrate that the applicant was never involved in Falun Gong and that the Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.  There are no particulars.

7. In all of the circumstances, the application should be dismissed with costs. 

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

Associate:

Dated:       29 June 2007

The Applicant did not appear.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 May 2007
Date of Judgment:	8 May 2007