SZOSM v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSM & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 50

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – invitation to Tribunal hearing sent but not received – deemed receipt of invitation to Tribunal hearing – merits review unavailable in judicial review proceedings.

Migration Act 1958, ss.424A, 425, 425A, 426A, 441A, 441C, 474
Migration Regulations 1994, reg.4.35D

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZOBI v Minister for Immigration & Citizenship (No. 2) [2010] FCAFC 151

First Applicant: SZOSM

Second Applicant: SZOSN

Third Applicant: SZOSO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2344 of 2010

Judgment of: Cameron FM

Hearing date: 2 February 2011

Date of Last Submission: 2 February 2011

Delivered at: Sydney

Delivered on: 2 February 2011

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The first and the second applicants pay the first respondent’s costs fixed in the amount of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2344 of 2010

SZOSM

First Applicant

SZOSN

Second Applicant

SZOSO

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of China where it is claimed the first applicant practised Falun Gong.  The first applicant alleges that while in China she was a Falun Gong practitioner and that this led to her being arrested, detained, and fined. After her arrival in Australia on 13 August 2009 the first applicant lodged an application for a protection visa.  The application included, as members of her family unit, her husband and daughter who are the second and third applicants.

2. The application was refused by a delegate of the first respondent (“Minister”) on 17 June 2010.  The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings, the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”) and Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed. 

Background facts

1. The facts alleged in support of the applicants’ claim for protection visas are set out on pages 4 – 6 of the Tribunal’s decision.  Relevantly these are as follows.

2. In a statement attached to her protection visa application, the first applicant claimed that:

   a)she joined Falun Gong in July 1998 and each evening from 7.00 to 9.00 pm she attended mass practice at the People’s Square in Yanji City;

   b)she suffered from severe arthritis, very bad pain and numbness…