SZIBA v Minister for Immigration & Multicultural Affairs [2006] FCA 1468

FEDERAL COURT OF AUSTRALIA

SZIBA v Minister for Immigration & Multicultural Affairs [2006] FCA 1468

SZIBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD1276 OF 2006

EMMETT J

1 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1276 OF 2006

BETWEEN: SZIBA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 1 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of the application. 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 NSD1276 OF 2006

BETWEEN: SZIBA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 1 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of the People's Republic of China. He arrived in Australia on 24 April 2005. On 16 May 2005, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 15 August 2005 a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister'), refused to grant a protection visa. The applicant then applied to the second respondent, the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 9 November 2005, the Tribunal affirmed the delegate's decision not to grant a protection visa. The applicant was notified of that decision on 1 December 2005. 2 In its reasons for that decision, the Tribunal recorded that, on 13 October 2005, it wrote to the applicant at the address given by him as his mailing address. By that letter, the Tribunal informed the applicant that it had considered all the material before it relating to his application, but was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence and present arguments at a hearing before the Tribunal on 9 November 2005. The applicant did not appear before the Tribunal on that day and the Tribunal then proceeded to make its decision on the basis of the papers before it. 3 The applicant claimed that he left China and feared to return there because he was persecuted in China for his Falun Gong activities and would face further persecution if he returned. While the Tribunal accepted there is sometimes persecution of Falun Gong practitioners in China, including persecution in relation to practice at home, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner. On the basis of the information before it, the Tribunal could not be satisfied that the applicant's claims were otherwise than untested assertions lacking in detail in important respects. The Tribunal considered that there was no persuasive evidence before it that enabled it to be satisfied that there was a real chance that the applicant would face serious harm for a Convention reason. 4 The applicant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. At a directions hearing on 7 February 2006, the applicant was given leave to file an amended application and any evidence in support of his application by 26 May 2006. The matter was listed for hearing on 13 June 2006 to consider whether the material before the Federal Magistrates Court disclosed that the applicant had an arguable case. While an amended application has been filed, no additional evidence was filed. 5 In the original application, the applicant relied on three grounds as follows: '1. There was no evidence or other material to justify the making of the decision.