SZJTO v Minister for Immigration and Citizenship [2007] FCA 778

FEDERAL COURT OF AUSTRALIA

SZJTO v Minister for Immigration and Citizenship [2007] FCA 778 SZJTO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD522 OF 2007

COLLIER J

22 MAY 2007

BRISBANE (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD522 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J DATE OF ORDER: 22 MAY 2007

WHERE MADE: BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal is joined as second respondent. 2. The appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD522 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE: 22 MAY 2007

PLACE: BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Scarlett FM of 13 March 2007dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 13 October 2006 and handed down on 2 November 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

Background 2 The appellant is a citizen of the People's Republic of China ("PRC") who arrived in Australia on 16 August 2005. On 12 September 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 9 November 2005. On 14 December 2005 the appellant applied to the Tribunal for a review of that decision. 3 On 3 February 2006 the Tribunal, differently constituted, had affirmed the delegate's decision not to grant the appellant a visa however, that decision was set aside by the Federal Magistrates Court on 12 July 2006 and the matter was remitted to the Tribunal for reconsideration (second Tribunal). 4 The appellant claimed to have well-founded fear of persecution as a Falun Gong practitioner. He claimed to have become a member in 1996 and to have organised major Falun Gong activities in his area. The appellant's role was to develop new members in his area and to cover and protect them. In 2003 police came to arrest members during a meeting, including the appellant. As he was a key member, he was placed in a separate room and was interrogated for 24 hours which included mental and physical torture. He claimed that the head of his organisation, who had not been identified, paid a large sum for the appellant's release and assisted him in obtaining a visa and passport for Australia. However, before the second Tribunal the appellant claimed involvement of the Chinese Communist Party ("CCP") in his leaving China, that they arranged everything for his departure and wanted him to develop Falun Gong members in Australia.