SZEYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 127

FEDERAL COURT OF AUSTRALIA

SZEYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 127 SZEYB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 1797 OF 2005 EDMONDS J 27 FEBRUARY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1797 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEYB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE OF ORDER: 27 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs.

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 NSD 1797 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEYB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE: 27 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

Edmonds J: 1 This is an appeal from a judgment of the Federal Magistrates Court (Smith FM) delivered on 8 September 2005.

Background 2 The appellant, who is a 30 year old Chinese citizen from Fu Qing City in the Fu Jian region of China, arrived in Australia on 23 January 2004, travelling on a visitor visa. On 3 February 2004, he lodged an application for a protection (class XA) visa. He claimed to fear persecution because of his assistance of Falun Gong practitioners. 3 After the Minister's delegate refused the appellant's protection visa application on 10 February 2004, the appellant applied to the Refugee Review Tribunal ('the Tribunal') to review that decision on 1 March 2004. 4 On 8 April 2004, the Tribunal invited the appellant to attend a hearing. This invitation was later re-issued and the hearing date re-scheduled in order to ensure that the appellant had been given the statutory time required to respond prior to the hearing. On 5 May 2004, the appellant accepted the Tribunal's invitation to attend the hearing. 5 On 13 May 2004, the Tribunal held a hearing at which the appellant gave oral evidence. On 14 May 2004, the Tribunal wrote to the appellant and invited him to comment on information, which the Tribunal considered would be the reason, or part of the reason for affirming the delegate's decision. The Tribunal did not receive any response to its letter of 14 May 2005 and accordingly made its decision on 1 June 2004 which was handed down on 28 June 2004. It affirmed the decision to refuse to grant the visa.