SZJYD v Minister for Immigration and Citizenship [2007] FCA 798

FEDERAL COURT OF AUSTRALIA

SZJYD v Minister for Immigration and Citizenship [2007] FCA 798 SZJYD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 740 OF 2007

MOORE J

24 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 740 OF 2007

BETWEEN: SZJYD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J DATE OF ORDER: 24 MAY 2007

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 740 OF 2007

BETWEEN: SZJYD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J

DATE: 24 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This judgment concerns an appeal against a judgment of a Federal Magistrate of 26 March 2007 with the orders taking effect on 23 April 2007: see SZJYD v Minister for Immigration & Anor [2007] FMCA 452. The appellant filed an application for extension of time to file and serve a notice of appeal on 27 April 2007. The Minister, however, conceded that such an extension of time was not required and accordingly this matter has proceeded as an appeal.

Background 2 The appellant, a citizen of the People's Republic of China ("the PRC"), arrived in Australia on 15 May 1999 on a false Thai passport. The appellant applied for a protection visa on 10 July 2001. In his visa application, the appellant claimed to fear persecution on the basis of his membership of a Christian church in the PRC as well as his participation in the pro-democracy movement. On 29 November 2001, a delegate of the then Minister for Immigration and Multicultural and Indigenous Affair refused to grant the visa 3 The appellant was apprehended by the then Department of Immigration and Multicultural Affairs on 20 May 2006 and remains in detention. It was not until the appellant was in detention that, on 12 June 2006, he sought review of the delegate's decision by the Refugee Review Tribunal. It may be noted at this point that the Tribunal assumed it had jurisdiction, although the reason for this is not clear, and that the Minister has not challenged this assumption in either the Federal Magistrates Court or this Court. As the Federal Magistrate noted at [2], the reason may have been that the appellant was not properly notified of the delegate's decision. 4 On 3 October 2006, the Tribunal faxed a letter to the manager at Villawood Detention Centre with the cover sheet stating "(a) hearing has been arranged for (the appellant)…on 11 October 2006…Please hand the attached hearing invitation letter and 'Response to Hearing Invitation' form to the applicant immediately." The attachment, addressed to the appellant, stated that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in his favour on this information alone. The appellant was invited to attend a hearing to be held on 11 October 2006 and was informed that the hearing would be conducted by video link, with the Member and interpreter being in Melbourne. 5 At the Tribunal hearing, the appellant recanted his claims in the visa application. The appellant instead asserted that he had been a member of the Communist Party from 1990 to 1993, after which time he trained as a truck driver. The appellant said that he had sold his truck in 1997 as a result of the high cost of maintenance and commenced a nomadic existence working as a labourer in various provinces. The appellant described how he had paid a people smuggler to arrange for his departure from the PRC. The appellant said that he could not return to the PRC as government departments were searching for him as he was seen as a traitor who had escaped the country. The appellant claimed that he could not return to the PRC as he could be charged with disclosing state secrets or with being a Falun Gong practitioner even though he had never been a Falun Gong practitioner. The appellant described his fear of returning to his country of origin.