BZAAC v Minister for Immigration and Citizenship
[2011] FCA 167
•2 March 2011
FEDERAL COURT OF AUSTRALIA
BZAAC v Minister for Immigration and Citizenship [2011] FCA 167
Citation: BZAAC v Minister for Immigration and Citizenship [2011] FCA 167 Appeal from: BZAAC v Minister for Immigration and Citizenship & Anor [2010] FMCA 855 Parties: BZAAC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: QUD 393 of 2010 Judge: COLLIER J Date of judgment: 2 March 2011 Date of hearing: 2 March 2011 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant did not appear Counsel for the First and Second Respondents: Ms A Wheatley Solicitor for the First and Second Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 393 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: BZAAC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
2 MARCH 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The appeal be dismissed with costs fixed in the sum of $6,104.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 393 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: BZAAC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
2 MARCH 2011
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an appeal against the decision of Jarrett FM delivered on 30 August 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 28 April 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND
The appellant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 2 May 2009. On 18 November 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 11 February 2010. On 18 March 2010 the appellant applied to the Tribunal for a review of that decision.
In her protection visa application, the appellant indicated that she was applying for the visa to avoid persecution and risk of arrest in China. She claimed that she is now a Christian after beginning to learn about it five years ago and that since then, her Christian colleagues sometimes gathered at her company. She claimed it is unlawful for people to believe in Christ in her city. She claimed that since 2002 the government has been putting Christians in prison and they have only been able to gather in private places, usually late at night or early morning. She claimed that one morning the police came to one of the practicing places to arrest them and many of them were sent to prison. She claimed that with the help of friends she was able to escape and no one put her in jail but they did warn her not to do it anymore.
REFUGEE REVIEW TRIBUNAL
The appellant was scheduled to appear before the Tribunal on 27 April 2010. The appellant did not appear at the Hearing and did not contact the Tribunal. In the circumstances, the Tribunal was satisfied that it had discharged its obligations to give the appellant the opportunity to appear before it to give evidence. Consequently, the Tribunal proceeded to its decision and found that it was not satisfied that the appellant was a person to whom Australia owed protection obligations.
The Tribunal was satisfied that the appellant was a citizen of China, of her name, and of her date and place of birth. However, beyond these findings, the Tribunal determined that the appellant had not provided any further information or arguments in support of her claims. On this basis, the Tribunal did not accept her claims.
The Tribunal found that the degree of harm claimed to have been suffered by the appellant did not amount to serious harm or involve systematic or discriminatory conduct within the meaning of the Act. Consequently, as the appellant was found to have suffered no harm in China, the Tribunal found that the appellant did not flee China fearing harm and that she would not be harmed or persecuted if she returned to China.
Ultimately, on the basis of the information before it, the Tribunal was not satisfied that the appellant had a well-founded fear of being persecuted within the meaning of the Convention and thereby was not a person to whom Australia had protection obligations under the Refugees Convention.
For these reasons, the Tribunal affirmed the decision of the delegate.
FEDERAL MAGISTRATES COURT
On 31 May 2010 the appellant filed an application for judicial review of the Tribunal’s decision, and claimed the following:
1.I was tortured and prosecuted by my original government because I am a Christian.
2.The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application.
3. The Refugee Review Tribunal applied the wrong test.
In respect of Ground 1, the Federal Magistrate held that it was not of itself a ground of review. Further, he noted that to the extent the ground may suggest a failure of the Tribunal to properly analyse those claims, he was not satisfied that the Tribunal had failed to do so.
In respect of Ground 2, the federal Magistrate considered that it was nothing more than a general statement without particulars and thereby warranted no further consideration.
The Federal Magistrate found no jurisdictional error was demonstrated in the Tribunal’s reasons for decision and nor do the reasons demonstrate the application of the wrong test, the appellant’s third ground of appeal.
Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.
APPEAL TO THIS COURT
By Notice of Appeal filed on 20 September 2010, the appellant raised the following grounds of appeal against the decision of Jarrett FM:
1.Federal Magistrate JARRETT failed to consider I was tortured and prosecuted by my original government because I am a Christian.
2.Federal Magistrate JARRETT failed to consider the decision made by the Second Respondent involved jurisdictional error affecting the decision which if subject to my application for a protection visa.
3.Federal Magistrate JARRETT failed to consider the Second Respondent did applied the wrong test.
SUBMISSIONS OF THE PARTIES
At the hearing of the appeal before me this morning there was no appearance by the appellant. The Minister was represented by Counsel.
In light of the failure of the appellant to appear I asked the Court officer to call the name of the matter outside the Court. There was no response. My associate rang the mobile number listed for the appellant but received a voicemail message saying that the appellant was not available.
Ms Wheatley for the Minister tendered copies of correspondence from the Court and the solicitors for the Minister to the appellant advising her of the time, date and place of today’s hearing. I am satisfied that the appellant has been properly notified of these matters.
Notwithstanding the failure of the appellant to appear I am prepared to consider the appeal on the material before me.
CONSIDERATION
In summary the grounds of appeal revisit the grounds of review before the Federal Magistrate, with the added claim that his Honour below failed to uphold those grounds. In fact, it is clear from the reasons of the Federal Magistrate that his Honour gave careful consideration to the grounds of review before him. As a general proposition, the fact that the Federal Magistrate did not uphold the grounds of review of the decision of the Tribunal is not, in itself, sufficient to substantiate an appeal from the Federal Magistrate’s decision.
In any event, however, it is clear from the material before the Court that there is no merit in this appeal.
In respect of the first ground of appeal, I note that the appellant did not attend the interview with the Department, nor the oral hearing before the Tribunal. There are no claims in the material to the appellant being tortured. Accordingly, not only is the first ground of appeal not raised on the material available to the Tribunal, but it is in the nature of a merits review, which is not permissible in respect of decisions of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Suan Liang (1996) 185 CLR 259.
On the material available to the Tribunal the Tribunal was not satisfied that the appellant would be harmed if she were to return to China. This finding was open to the Tribunal. The Federal Magistrate considered this ground at [9] of his Honour’s decision and dismissed it. No error has been demonstrated in respect of his Honour’s reasoning.
In respect of the second ground of appeal, the nature of the jurisdictional error allegedly infecting the Tribunal’s decision is not identified. In my view this ground of appeal cannot be substantiated.
In respect of the third ground of appeal, the “wrong test” allegedly applied by the Tribunal is not identified. In the absence of particularisation, this ground of appeal is meaningless.
The Tribunal found, in the unexplained absence of the appellant and based on the material before it, that the appellant was not entitled to protection. I am unable to identify any jurisdictional error infecting the Tribunal’s decision, or any appellable error in the decision of the learned Federal Magistrate.
The appeal should be dismissed with costs fixed in the sum of $6,104.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 2 March 2011
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