SZMDA v Minister for Immigration & Citizenship [2008] FCA 1689

FEDERAL COURT OF AUSTRALIA

SZMDA v Minister for Immigration & Citizenship [2008] FCA 1689

SZMDA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1212 of 2008

EDMONDS J

13 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1212 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMDA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE OF ORDER: 13 NOVEMBER 2008

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. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1212 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMDA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE: 13 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an appeal from a decision of the Federal Magistrates Court, delivered on 17 July 2008: SZMDA v Minister for Immigration & Anor [2008] FMCA 961, dismissing an application seeking judicial review of a decision of the second respondent ('the Tribunal') handed down on 18 March 2008. The Tribunal affirmed a decision of a delegate of the first respondent ('the Minister') not to grant the appellant a Protection (Class XA) visa.

Background 2 The appellant is a citizen of the Peoples Republic of China ('PRC') and arrived in Australia on 16 August 2007. On 26 September 2007, the Department of Immigration and Citizenship received an application for a protection visa from the appellant. 3 In answer to the questions on his original application seeking reasons for his claims of being a refugee, the appellant annexed a statutory declaration containing his claims that were, inter alia, as follows: (1) The appellant was a member of an underground Catholic church in China; (2) in order to avoid attention from PRC authorities, Bible studying, group gatherings and masses were held in secret places that frequently changed; (3) the appellant distributed 'Catholic promotion material' with the assistance of three young Catholics; (4) the appellant was arrested by the Police Security Bureau ('PSB') in the evening of 4 March 2007 and was detained for three weeks where he was mentally and physically mistreated by the police. The appellant was also questioned by the PSB ten times between March 2007 and when he left China; and (5) after the appellant left China, five Catholics were arrested by the PSB and their confession led the PSB to discover the appellant's involvement in the underground church. The appellant claimed that he has been blacklisted and would be persecuted if he returned to China. 4 On 29 October 2007, a delegate of the Minister refused to grant the appellant a protection visa. 5 On 29 November 2007, the Tribunal received an application for review of the delegate's decision. On 7 February 2008, the appellant attended and gave oral evidence at a hearing before the Tribunal. At the hearing before the Tribunal, the appellant did not make any new claims. The appellant gave evidence in support of the claims in his statutory declaration and was questioned extensively by the Tribunal member. The appellant submitted further material to the Tribunal on 21 February 2008. 6 The Tribunal handed down its decision on 18 March 2008, affirming the decision of the delegate.