SZLCT v Minister for Immigration and Citizenship [2008] FCA 890

FEDERAL COURT OF AUSTRALIA

SZLCT v Minister for Immigration and Citizenship [2008] FCA 890

SZLCT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 366 of 2008

RARES J

9 MAY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 366 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLCT

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J DATE OF ORDER: 9 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with 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 366 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLCT

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 9 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court which refused the appellant's claim for constitutional writ relief in which he sought to quash a decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister to refuse him a protection visa in April 2007: SZLCT v Minister for Immigration [2008] FMCA 191.

The Appellant's Claims and Circumstances 2 The appellant arrived in Australia on his most recent visit in March 2007 and applied for a protection visa a month later. The delegate refused the visa shortly afterwards and he then applied for a review of that decision to the tribunal in late April 2007. On 29 June 2007 the tribunal affirmed the delegate's decision. The appellant had been initially interviewed at the airport on his arrival in which he told the immigration officer that he feared returning to China because of his practice of Falun Gong. He made no mention in the initial interview that he was then a Christian or feared any harm might come to him in China for that reason. He had arrived on a false South Korean passport, which immigration officials at the airport detected had had a photo substituted into it. He was detained and has been held at the Villawood Immigration Detention Centre since then. His actual Chinese passport was found on another person travelling on the same plane. 3 The appellant had previously come to Australia in April 1996 and stayed until early 1999. On his first visit to Australia he also had sought a protection visa based on his claim to have been introduced, while here, to another faith, Yi Euan Dao, which was banned in China. He claimed that when his wife discovered that he had been practising that faith in Australia she became frightened and wanted a divorce and that, when he returned to China, they did divorce. 4 The appellant claimed that in 2002, while in China, he began to practice Falun Gong with a friend's family having seen a considerable improvement in health of a member of that family. He claimed that he had been arrested in March 2006 by officers of the Public Security Bureau of China and detained for three months. While in detention there he claimed to have been mistreated and interrogated but not to have made any admissions. 5 After he was released the appellant claimed that the police kept looking for him and harassing him, so he went to a Christian missionary, whom he had met before to ask for help. He claimed that that missionary had introduced him to an underground Christian college where he met a priest who talked to him about Christianity and realised that he would only be saved if he converted. He claimed the college had trouble with the government and that its students would divide into groups at different locations. He claimed that he feared being arrested because of this association with the church and because of his earlier practice of Falun Gong. In that context he claimed to have sought assistance to leave China and a friend of his introduced him to a man who accompanied him from Shanghai to Malaysia where he was given the Korean passport so that he could enter Australia. He claimed that they then flew to Australia and that the friend was sent back from Australia at the airport. He claimed that he would be arrested, imprisoned, and subjected to physical and mental torture due to his former Falun Gong activities and his association with the Christian college, were he returned to China.