WZAOH v Minister for Immigration and Citizenship

[2011] HCASL 184

WZAOH
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 184
P36/2011

1. The applicant is a citizen of the People's Republic of China.  She entered Australia in September 2009 on a temporary Student Guardian visa.  In July 2010 she lodged an application for a protection visa.  She claimed to fear persecution in China as the result of her practice of Falun Gong.  The Minister's delegate refused the application on 25 October 2010.

2. The applicant applied for merits review of the delegate's determination before the Refugee Review Tribunal ("the Tribunal").  The Tribunal invited the applicant to attend a hearing to give evidence and present arguments in support of her application.  She did not attend the hearing.  The Tribunal affirmed the delegate's decision, holding that it was unable to clarify unsubstantiated aspects of the applicant's claims.  The Tribunal was not satisfied that the applicant was a Falun Gong practitioner or that she had a well-founded fear of persecution for any Convention-related reason.

3. An application for judicial review of the Tribunal's determination was dismissed by the Federal Magistrates Court (Lucev FM). 

4. An appeal to the Federal Court (McKerracher J) was dismissed.

5. The applicant applies for special leave to appeal from the orders of the Federal Court. Neither of her proposed "grounds" in the draft notice of appeal is a ground of challenge to the decision below. The first claims a declaration that the Tribunal's decision was not a privative clause decision within the meaning of s 474 of the Migration Act 1958 (Cth)[1].  The second is a factual assertion that if the applicant is deported from Australia she will be at risk of persecution.  The different grounds that are set out in the application for special leave do not engage with the reasoning of the court below.  The second and third are those that were unsuccessfully advanced before the Federal Magistrates Court.  As McKerracher J observed, no error appears in the reasoning of the Federal Magistrate.  The first ground asserts that the Tribunal "made the decision without considering the current situation in China".  This does not come to grips with the Tribunal's rejection of her claims.  The application for special leave to appeal is hopeless.  If special leave to appeal were granted the application would have no prospect of success.

   [1]Cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2.

6. The application is dismissed.

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 October 2011 V.M. Bell