SZHDQ v Minister for Immigration and Citizenship [2008] FCA 771

FEDERAL COURT OF AUSTRALIA

SZHDQ v Minister for Immigration and Citizenship [2008] FCA 771

Federal Court of Australia Act 1976 (Cth) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) SZHDQ v Minister for Immigration & Anor [2008] FMCA 231 SZHDQ v MINISTER FOR IMMIGRATION and CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 925 of 2008

GORDON J

26 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 925 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHDQ

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GORDON J DATE OF ORDER: 26 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal to be taxed in default of agreement. 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 925 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHDQ

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GORDON J

DATE: 26 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Upon this appeal from the Federal Magistrates Court (SZHDQ v Minister for Immigration & Anor [2008] FMCA 231) being called on for hearing, the appellant did not appear. For more than one reason the appeal should be dismissed. 2 On 21 January 2005, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then known. The first respondent refused the application for a protection visa on 6 April 2005. On 27 April 2005, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision. On 30 August 2005, the Tribunal affirmed the decision of the first respondent. 3 The Tribunal's decision was quashed by the Federal Magistrates Court which remitted the appellant's matter to the Tribunal for reconsideration, according to law, on 9 February 2007. After the matter was remitted, a differently constituted Tribunal wrote to the appellant inviting him to provide any further documents or written arguments not previously provided, and informed him of the process of reconsideration. It invited the appellant to attend a hearing. On 28 April 2007, the appellant appeared before the Tribunal at which time he also provided the Tribunal with copies of two untranslated documents. 4 On 26 June 2007, the Tribunal again affirmed the first respondent's decision of the delegate not to grant the appellant a protection visa. The appellant sought judicial review of that decision by the Federal Magistrates Court on the grounds that: 1. The [Tribunal] based [its] decision on the first [T]ribunal and did not take into account the second hearing. 2. Procedures that were required by the Migration Act[1958 (Cth), ("the Act")] and the Migration Regulations [1994 (Cth)] were not observed. 5 On 15 February 2008, Barnes FM dismissed the appellant's application. On 4 March 2008, the appellant appealed to this Court. The appellant's grounds are the same grounds raised before the Federal Magistrates Court, save for the addition of one further sentence: The [Tribunal] disregards the fact that I am still a Falun Gong practitioner and will be persecuted if I go back to China.