SZKUI v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 126

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of her practise of Falun Gong – applicant failing to respond to hearing invitation – Tribunal concluding that the applicant had chosen not to attend and that this was inconsistent with a genuine fear of persecution – Tribunal incorrectly finding that it had only one means of contacting the applicant – whether the Tribunal should have telephoned the applicant and whether it made an adverse credibility finding based on no evidence considered.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425, 426A, 441A, 441C, 476

Minister for Immigration v Mohammed [2000] FCA 1275
SZHSQ v Minister for Immigration [2006] FCA 1295
SZKUI v Minister for Immigration & Anor [2007] FMCA 1387

Applicant: SZKUI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1910 of 2007

Judgment of: Driver FM

Hearing date: 8 February 2008

Delivered at: Sydney

Delivered on: 8 February 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr P Cleary

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1910 of 2007

SZKUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 28 November 2006. Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are set out in the Minister's outline of submissions filed on 31 January 2008. I adopt as background for the purpose of this judgment, with minor amendments, paragraph 3 through to paragraph 21 of those submissions:

   The applicant is a citizen of the People’s Republic of China (“PRC”).  She arrived in Australia on 7 May 2006. 

   On 1 June 2006 the applicant lodged an application for a protection (class XA) visa (“PVA”) with the Department of Immigration and Multicultural and Indigenous Affairs as it was then known (“Department”). 

   In her PVA the applicant claimed she would be persecuted in the PRC by the Chinese authorities as she claimed to be a practitioner of Falun Gong and was being investigated by Chinese authorities.

   On 31 August 2006 a delegate of the Minister refused to grant a protection visa to the applicant.

   Proceedings in the Tribunal

   The applicant filed an application for review of the delegate’s…