SZCPW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 622

FEDERAL COURT OF AUSTRALIA

SZCPW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 622 SZCPW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 203 of 2005 BRANSON J 3 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 203 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCPW

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 3 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs fixed in the amount of $3300.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 203 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCPW

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 3 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court delivered by Smith FM on 27 January 2005. The notice of appeal filed by the appellant contained the following purported grounds of appeal: '2. The Judge did not take into account the explanation provided by me at my hearing and refused my application. 3. My application should be sent back to RRT for reconsideration because there is jurisdiction error when the Tribunal considered my application. 4. I believe that I meet the criterion for refugee status.' 2 At a directions hearing held on 8 March 2005, I directed the appellant to file and serve an amended notice of appeal giving complete particulars of each ground of appeal by 22 March 2005. I also directed the appellant to file and serve written submissions in support of her appeal by 26 April 2005. Although the appellant has told me today that she did file an amended notice of appeal, no copy of it appears on the Court's file. However, the respondent's legal representatives have provided a copy of a document, apparently signed by the appellant, to the Court. This document is headed 'Amended Notice of Appeal'. I have had this document shown to the appellant and she confirms that it is the amended notice of appeal on which she wishes to rely on this appeal. 3 The appellant agrees that she did not comply with the direction to file written submissions. The appellant has indicated that the reason she did not do that is that all that she wants to say is contained in the document headed 'Amended Notice of Appeal'. The substantive part of that document reads as follows: 'I lodged the application for a protection visa with DIMIA and a review application with RRT. The officer made jurisdiction mistakes when considering my application. I believe that the officer had bias against me, and made the conclusion based on some limited independent information, did not have any evidence to justify his decision. The Tribunal assumed that I would not be persecuted on my return to China. The Tribunal officer did not believe that I was a member of "Falun Gong" because of his bias against me. When he considered my application, he assumed that I had never participated in any of the Falun Gong activities, and I made my claims up and he doubted about my credibility. Therefore, he simply refused to consider my application in more details and concluded that I had never participated in any activities of "Falun Gong" and I had never been a member of it. The tribunal failed to exercise the jurisdiction as the tribunal officer did not consider all the information and referred to limited information from independent resources about Falun Gong situation in China.' 4 The appellant, who was born in 1964, is a citizen of the People's Republic of China. On 30 October 2000 a Chinese passport was issued to the appellant. The appellant claims that her husband is a Falun Gong practitioner who was taken into custody in January 2001 because of his Falun Gong activities. She claims that thereafter he has been detained by the Chinese authorities. She further claims that she is also a Falun Gong practitioner and for that reason has a well‑founded fear of persecution should she return to China. 5 The appellant left China for Australia on 18 September 2002 from Hong Kong. On 16 October 2002 she applied for a protection visa under the Migration Act 1958 (Cth) ('the Act'). This application was refused by a delegate of the Minister on 31 January 2003. On 5 March 2003, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. The reasons given on her application for review were as follows: 'I have been practising Falungong. The Chinese authorities have detained my husband and were trying to find evidence against me before I left China. I realized that I was in danger and left China. If I return to China, I would be persecuted before [scil. because] of my involvement with Falungong and the Chinese Government has banned Falungong. ….' 6 By letter dated 26 September 2003 the appellant was advised by the District Registrar of the Tribunal that the Tribunal had considered the matter before it in relation to her application and was unable to make a decision in her favour on that material alone. The appellant was invited to attend a hearing before the Tribunal to give oral evidence and present argument in support of her claim. The appellant responded to the invitation by indicating that she did not wish to come to a hearing. The Tribunal then, as the Act authorises it to do, determined the review application on the material available to it. 7 The Tribunal accepted that the appellant is a citizen of China. It noted that her claims were very general and lacked detail. It rejected her claim to have obtained her passport by bribery. It noted that she had not explained why it was necessary for her to act this way three months before the arrest of her husband. It also rejected her claim to fear persecution in China. It noted that she did not leave China for 18 months after the alleged detention of her husband, and almost two years after she had obtained her passport. Finally, the Tribunal concluded that as it had not had the opportunity to examine the appellant's claims with her, it was not satisfied of any of the following things: