SZLBH v Minister for Immigration and Citizenship [2008] FCA 777

FEDERAL COURT OF AUSTRALIA

SZLBH v Minister for Immigration and Citizenship [2008] FCA 777

SZLBH and SZLBI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 417 of 2008

COWDROY J

27 MAY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 417 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLBH

First Appellant

SZLBI

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J DATE OF ORDER: 27 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The Appellants pay the costs of the First Respondent in the amount of $2,470 pursuant to O 62 r 4(2)(c) of the Federal Court Rules. 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 417 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLBH

First Appellant

SZLBI

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J

DATE: 27 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellants appeal from the decision of Federal Magistrate Barnes delivered on 4 March 2008 which dismissed an application for judicial review of the decision of the Refugee Review Tribunal ('the Tribunal') handed down on 26 June 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') not to grant the appellants Protection (Class XA) visas.

BACKGROUND 2 The appellants are citizens of the People's Republic of China ('the PRC') who arrived in Australia on 31 December 2006. The appellants are husband and wife. They applied individually to the Department of Immigration and Citizenship for Protection (Class XA) visas, and made separate claims as to the basis upon which they sought protection (although both claims related to the practice of Falun Gong). A delegate of the Minister refused such applications in February 2007. The appellants applied individually to the Tribunal on 5 March 2007 for a review of the decisions of the delegate. 3 The appellant husband claimed that his wife had convinced him to take up the practice of Falun Gong because of his poor health and that he began practising Falun Gong in the PRC in October 2005. Although the appellant husband claimed that he practised Falun Gong in private, the Public Security Bureau ('the PSB') discovered his participation in Falun Gong. As a result he moved from Tianjin to Hebei on 4 February 2006. The appellant husband claimed that he approached the Falun Gong movement in Australia approximately eight to ten days after he arrived in Australia on 31 December 2007. 4 The appellant wife claimed that she began practising Falun Gong in 2003 because of her 'poor health'. She claimed that on 2 February 2006 the PSB came to her home and arrested her. The appellant wife claimed that she was detained for 42 days, during which time she was 'frequently beaten up' and deprived of food. She further claimed that during her detention she was subject to 'brain washing' and was 'continuously tortured'. She claimed that she was forced to sign a confession and pay a bribe to facilitate her release. The appellant wife claimed that since her arrival in Australia she has been practising Falun Gong with her husband. 5 On 1 May 2007 the Tribunal sent separate letters to the Appellants pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act'). The appellants provided a joint response to such letters on 21 May 2007. For reasons of clarity and economy, the Tribunal handed down one decision which dealt with each application of the appellants.