FEDERAL COURT OF AUSTRALIA

SZKJO v Minister for Immigration and Citizenship [2007] FCA 1829

Migration Act 1958 (Cth) ss 424A, 425, 426A, 441A and 441C(1)

SZKJO v Minister for Immigration [2007] FMCA 1534 affirmed

SZKJO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1756 OF 2007

HEEREY J

21 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed at $1000.

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 the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister to refuse the appellant a protection visa.

2                     The nature of the appellant’s visa application, the reasoning of the Tribunal, and the decision of the Federal Magistrates Court are set out in the judgment of the Federal Magistrate, which is available on the internet:  SZKJO v Minister for Immigration [2007] FMCA 1534.

3                     The appellant is a citizen of the People’s Republic of China who arrived in Australia on 7 September 2006.  The appellant claimed to have well-founded fear of persecution as a supporter of the Falun Gong.  The appellant failed to attend the Tribunal hearing.  The Tribunal sent the appellant an invitation to the Tribunal hearing.  The Tribunal received no response, and the letter was not returned unclaimed.

The decision of the Tribunal

4                     The Tribunal made a decision pursuant to s 426A of the Migration Act 1958 (Cth).  On the limited evidence before it, the Tribunal found that it could not be satisfied that the appellant was a Falun Gong practitioner in China, or that she currently practised in Australia.  The Tribunal also could not be satisfied that the appellant was a genuine Falun Gong practitioner, or that she would seek to practise in the future.  There was, accordingly, no persuasive evidence to satisfy the Tribunal that the appellant would face serious harm for a convention reason.

The decision of the Federal Magistrate

5                     On the application for review to the Federal Magistrates Court, two grounds were raised.  First, that the Tribunal breached s 424A and, secondly, that the Tribunal deprived the appellant of an opportunity to submit further claims as the appellant did not receive the hearing invitation.

6                     In addressing the first ground, the Federal Magistrate found that there was no information within the meaning of s 424A that formed the reason, or part of the reason, for the Tribunal’s decision.  Rather, it was lack of information that led to the decision.  On the second ground, the Federal Magistrate found that the information was sent in accordance with s 425, as it was sent to the appellant’s last address for service:  see ss 441A(4)(a) and 441C(1).  Once the Tribunal complied with the requirement to notify the appellant of the hearing, the Tribunal was authorised to proceed with its decision in the appellant’s absence.

appeal to the Federal Court

7                     On appeal to this Court, the grounds in the notice of appeal repeated the claims made before the Federal Magistrate.  The grounds do not show error.  The reasons given by the Federal Magistrate for rejecting them were plainly correct.  The appellant was not legally represented at the hearing of this appeal but was assisted by an interpreter.  When invited to make submissions in support of her appeal, the appellant said that she “liked to practise Falun Gong” and she “would like to practise it in Australia”.  She said she cannot read or write.  She could not advance any further reason to show error on the part of the Federal Magistrate.

8                     No error has been shown and the appeal must be dismissed.  There will be an order that the appellant pay the first respondent’s costs fixed at $1000.

Associate:

Dated:         21 November 2007