SZHMV v Minister for Immigration and Multicultural Affairs [2006] FCA 926

FEDERAL COURT OF AUSTRALIA

SZHMV v Minister for Immigration and Multicultural Affairs [2006] FCA 926 SZHMV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR NSD 911 OF 2006 GRAHAM J 14 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 911 OF 2006

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHMV

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 14 JULY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The description of the respondent be altered to read 'Minister for Immigration and Multicultural Affairs'. 2. The Refugee Review Tribunal be added as a second respondent. 3. The appeal be dismissed. 4. The appellant pay the costs of the first respondent fixed by agreement in the sum of $3,000.00. 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 911 OF 2006

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHMV

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 14 JULY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court of Australia handed down on 5 May 2006. The appellant, who is identified for the purposes of these proceedings as SZHMV, was apparently born in China on 16 February 1984. She arrived in Australia in May 2001 to study English and undertake year 12 of a secondary education. Before the Refugee Review Tribunal ('the Tribunal') she asserted that her father had been detained in the People's Republic of China in December 2001 because he was a Falun Gong practitioner. 2 In February to April 2002 the appellant returned to China for a holiday. On 8 June 2005 the appellant was placed in detention in accordance with the provisions of s 189 of the Migration Act 1958 (Cth) ('the Act'). The appellant says that in July 2005 her father was placed in detention in China for a second time because he was said to be a Falun Gong practitioner. 3 The appellant applied for a Protection (Class XA) visa on 1 August 2005. This application was refused by the Minister's delegate on 10 August 2005. 4 On 11 August 2005 the appellant applied to the Tribunal for review of the Minister's delegate's decision. The appellant was afforded a hearing before the Tribunal on 8 September 2005. That hearing proceeded for in excess of two and a half hours. 5 On 28 October 2005 the Tribunal forwarded a copy of the Tribunal's decision of 27 October 2005 to the appellant. That decision was to affirm the decision of the Minister's delegate not to grant a protection visa to the appellant. 6 On 4 November 2005 the appellant filed an application in the Federal Magistrates Court of Australia which was said to be made under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Act. 7 That application did not in terms seek constitutional writ relief in respect of the decision of the Tribunal and did not articulate grounds suggesting jurisdictional error on the part of the Tribunal. The application recorded the appellant's claims as: 'I disagree the (RRT) Tribunal affirms the decision. I am a Falun Gong practitioner. My parents also a practitioner. I think in legal procedure the RRT give me the decision is not correct.'