SZKNW v Minister for Immigration and Citizenship [2008] FCA 713

FEDERAL COURT OF AUSTRALIA

SZKNW v Minister for Immigration and Citizenship [2008] FCA 713 Migration Act 1958 (Cth) SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZKNW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 281 of 2008

REEVES J

13 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 281 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKNW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: REEVES J DATE OF ORDER: 13 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs fixed in the sum of $2,445.00 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 281 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKNW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: REEVES J

DATE: 13 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Federal Magistrate Nicholls delivered on 12 February 2008, which dismissed the appellant's application for judicial review. That application sought review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 20 March 2007 affirming the decision of a delegate of the Minister refusing to grant a protection visa to the appellant.

PROCEDURAL HISTORY 2 The appellant is a citizen of the People's Republic of China ('China'), who arrived in Australia on 7 September 2006. The appellant lodged an application for a protection visa (class XA) one week later on 15 September 2006, claiming to fear persecution in China because he was a Falun Gong practitioner. That application was refused by a delegate of the Minister on 20 October 2006. On 27 November 2006 the appellant applied to the Tribunal for a review of that decision. 3 Before the Tribunal the appellant claimed that he had come to Australia to allow him to practice Falun Gong. He claimed he commenced to practice Falun Gong in China for about six months, until shortly after it was banned, in July 1999. He alleged that the Chinese authorities did not believe he had ceased to practice Falun Gong and he was therefore detained by them on several occasions and held for questioning for between one and five days. 4 According to the appellant his interest in Falun Gong was re-ignited after a visit to Australia in 2005. He made contact with other practitioners upon returning to China and eventually returned to Australia in 2006 so that he could practice Falun Gong freely. He claimed that he was unable to return to China because he dared not practise Falun Gong if he returned and he felt his life would be meaningless without his practice of Falun Gong.