FEDERAL COURT OF AUSTRALIA

SZEUE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1155

SZEUE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 628 OF 2005

MOORE J

26 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellant pay the respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a Federal Magistrate of 12 April 2005, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 21 April 2004.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs of 20 January 2004, refusing the appellant a protection visa.  For reasons discussed shortly, it is unnecessary to set out at length either the basis upon which the Tribunal made its decision, nor to set out at length in a summary form, the reasons for judgment of the Federal Magistrate.

2                     It is sufficient to note that the appellant based his claim for a protection visa on the position his father has held and currently holds in China.  His father had been a comparatively senior military officer and had been critical of China's approach to Taiwan.  The appellant contended that were he to return to China, he was at risk of harm because of the position his father had adopted.  The Tribunal did not accept the appellant's account of what his father had done and, therefore, did not accept that the appellant was at risk of persecution were he to return to the Peoples Republic of China.

3                     In the Federal Magistrates Court, a number of grounds were advanced in support of the application for judicial review.  It is unnecessary to refer to those various grounds as the notice of appeal raised only three grounds and do not involve a repetition of the grounds raised before the Federal Magistrate. 

4                     The first and second grounds in the notice of appeal raised entirely fresh legal contentions.  The first was, in summary, that the Tribunal failed to deal with a claim that the appellant feared persecution bec6ause of a desire to publicise information about the regulation of religion by the Chinese government.  During the course of the hearing of this appeal, I refused the appellant leave to raise this point because he could point to nothing which indicated that, as a matter of fact, a claim of that character had ever been made before the Tribunal.  Similarly, I refused the appellant leave to raise the issue identified in the second ground, namely that the Tribunal fell into jurisdictional error in relying upon historical country information rather than up-to-date information.  Again, the appellant was unable to point to anything which suggested that the Tribunal approach its the consideration of the appellant's case on that basis.

5                     The third and ultimately the only ground of appeal was that the Federal Magistrate, in effect, erred in failing to find that the Tribunal based its decision on country information which it had not put to the appellant.  Counsel for the Minister submitted, in my opinion correctly, that the Tribunal had not based its decision on country information.  The Tribunal's decision was based on an analysis of the way the appellant had from time to time advanced his claims and the circumstances surrounding those claims.  Accordingly, the appellant has failed to make out the third ground.

6                     For these reasons, I order that the appeal be dismissed and the appellant pay the respondent's costs. 

Associate:

Dated:              23 August 2005